REL: 9/26/2014

Notice: This opinion is subject to formal revision before publication in the advance

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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-

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the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

____________________

1130587

____________________

Alice Lynn Harper Taylor

v.

In the matter of the Estate of Alice Earle F. Harper,

deceased

Appeal from Escambia Probate Court

(Probate No.: 10058)

 

1130884

____________________

Alice Lynn Harper Taylor

v.
In the matter of the Estate of Alice Earle F. Harper,

deceased

Appeal from Monroe Probate Court

(Probate No.: 3330)

BOLIN, Justice.

These consolidated appeals involve the estate of Alice

Earle F. Harper, deceased (hereinafter the "decedent"). Alice

Lynn Harper Taylor, the decedent's daughter (hereinafter

"Alice"), appeals in case no. 1130587, pursuant to § 12-22-21,

Ala. Code 1975, from the Escambia Probate Court's admission to

probate of a 2007 will allegedly executed by the decedent and

filed for probate in the probate court in Escambia County. 

Alice also appeals in case no. 1130884 from the Monroe Probate

Court's order granting a motion to dismiss Alice's petition to

probate a 1995 will allegedly executed by the decedent and

filed for probate in the probate court in Monroe County. 

Facts and Procedural History

On March 1, 2013, the decedent died in Monroe County. 

She had three adult children who survived her: Alice, William

C. Harper, and James R. Harper. The decedent's husband died

in 2002. On November 12, 2013, Alice filed in Monroe County

a petition to probate a 1995 will allegedly executed by the

decedent. In her petition, Alice acknowledged that there was

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in existence a 2007 will that purported to be the will of the

decedent. Alice challenged the validity of the 2007 will on

several grounds, including lack of mental capacity and the

existence of a reciprocal will by the decedent's husband that

had been admitted to probate in 2002. On December 10, 2013,

the Monroe Probate Court set a hearing for January 28, 2014.

On January 22, 2014, the probate judge recused himself from

hearing the petition. On February 20, 2014, this Court

entered an order appointing a special probate judge to hear

the probate proceedings in Monroe County. 

Meanwhile, on January 8, 2014, William filed a petition

in Escambia County to probate a 2007 will allegedly executed

by the decedent. On January 17, 2014, in the Escambia

Probate Court, Alice filed a motion to dismiss and/or to stay

the proceeding in Escambia County until the proper venue for

the probate proceeding was determined. Alice cited § 43-8-21,

Ala. Code 1975, which addresses a situation like this one

where there are multiple probate proceedings, and argued that

under § 43-8-21 the Monroe Probate Court is the proper venue. 

On February 19, 2014, the Escambia Probate Court admitted the

2007 will to probate and issued letters testamentary to

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William, as the personal representative named in the 2007

will. On March 3, 2014, Alice filed a notice of appeal

pursuant to § 12-22-21(2), Ala. Code 1975, which allows an

appeal to the circuit court or to the Alabama Supreme Court of

a probate court's "judgment or order on an application

claiming the right to execute a will or administer an estate"

(case no. 1130587).

On April 11, 2014, William filed in the Monroe Probate

Court a motion to dismiss Alice's petition to probate the 1995

will. William argued that the 2007 will revoked all earlier

wills and that the 2007 will gave the personal representative

the right to choose the county in which the will would be

probated. On April 14, 2014, the Monroe Probate Court granted

William's motion to dismiss on the ground that it lacked

subject-matter jurisdiction. Alice filed an appeal pursuant

to § 12-22-21 from the Monroe Probate Court's grant of the

motion to dismiss her petition to probate the 1995 will (case

no. 1130884). 

Discussion

"The jurisdiction of the probate court is limited to the

matters submitted to it by statute." Wallace v. State, 507

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So. 2d 466, 468 (Ala. 1987). The statute governing the

subject-matter jurisdiction of the probate court, § 12-13-1,

Ala. Code 1975, provides, in pertinent part, that the probate

court has original and general jurisdiction as to all matters

enumerated in the statute, which includes the probate of

wills. The general venue statute setting out the venue for

the probate of a will in Alabama is set out in § 43-8-162,

Ala. Code 1975, and provides:

"Wills must be proved in the several probate

courts as follows:

"(1) When the testator, at the time of

his death, was an inhabitant of the county,

in the probate court of such county.

"(2) When the testator, not being an

inhabitant of the state, dies in the

county, leaving assets therein, in the

probate court of such county. 

"(3) When the testator, not being an

inhabitant of the state, dies out of the

county, leaving assets therein, in the

probate of the county in which such assets,

or any part thereof, are.

"(4) When the testator, not being an

inhabitant of the state, dies, not leaving

assets therein, and assets thereafter come

into any county, in the probate court of

any county into which such assets are

brought. 

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"(5) In the probate court of the

county designated by testator in the will

if the testator owns property in such

county at the time of his death."

Section 43-8-162 does not give priority to any one of the

five venues specified therein as a venue where a will may be

probated over another. Section 43-8-21 establishes venue when

a probate proceeding may be maintained in more than one place

in Alabama: 

"(a) Where a proceeding under this chapter could

be maintained in more than one place in this state,

the court in which the proceeding is first commenced

has the exclusive right to proceed.

"(b) If proceedings concerning the same estate

are commenced in more than one court of this state,

the court in which the proceeding was first

commenced shall continue to hear the matter, and the

other courts shall hold the matter in abeyance until

the question of venue is decided, and if the ruling

court determines that venue is properly in another

court, it shall transfer the proceeding to the other

court.

"(c) If the court finds that in the interest of

justice a proceeding or a file should be located in

another court of this state, the court making the

finding may transfer the proceeding or file to the

other court."

In the present case, the decedent died in Monroe County. 

Alice filed a petition to probate the decedent's 1995 will in

Monroe County. It is undisputed that the decedent was

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domiciled in Monroe County at the time of her death. Section

43-8-162(1) provides that venue is proper in the probate court

where the decedent was an inhabitant at the time of her death. 

This Court has equated the term "inhabitant" with the word

"domiciliary," and a domicile consists of a residence at a

particular place accompanied by an intent to remain there

permanently or for an indefinite length of time. Ambrose v.

Vandeford, 277 Ala. 66, 167 So. 2d 149 (1964). 

Subsequently, William filed a petition to probate the

decedent's 2007 will in Escambia County. The 2007 will

provided that William, as the personal representative, had the

discretion to probate the will in any county were the decedent

owned property at the time of her death. It is undisputed

that the decedent owned property in Escambia County at the

time of her death. Section 43-8-162(5) provides that probate

of a will is proper in the county designated by the testator

in the will if the testator owns property in that county at

the time of her death. 

Alice challenges the validity of the 2007 will; William

challenges the validity of the 1995 will. Both challenges go

to the merits of the case, i.e., whether either of the

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tendered wills is entitled to be admitted to probate, and, if

so, which one. Simply because William has submitted a will

with a later date, which purports to revoke all prior wills,

does not mean that the 2007 will is valid, nor does it mean

that the Escambia Probate Court is the proper venue. The

legislature has provided for the proper venue in probate

matters when more than one probate court has venue. That is

what we have before us in this case. The Monroe Probate Court

is the proper venue under § 43-8-162(1), and the Escambia

Probate Court is the proper venue under § 43-8-162(5). The

legislature has determined that when there are multiple venues

for a probate proceeding, the probate court in which the

proceeding was first commenced shall have the exclusive right

to proceed. § 43-8-21(a). Section 43-8-21(b) provides that if

multiple proceedings are commenced in more than one probate

court and those proceedings involve the same estate, then the

probate court where the proceeding was first commenced shall

hear the matter, and the other court shall hold the matter in

abeyance until the question of venue is decided. 

William cites DuBose v. Weaver, 68 So. 3d 814 (Ala.

2011), for the proposition that the administration of an

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1130587; 1130884

estate does not begin merely upon the filing in the probate

court of a petition for letters of administration or of a

petition to probate a will and for letters testamentary. 

DuBose involved a situation in which a party sought to remove

the administration of the estate from a probate court to a

circuit court under § 12-11-41. We concluded in DuBose that

the circuit court had not acquired jurisdiction, stating:

"In regard to the administration of estates, the

probate court is a court of general and original

jurisdiction. See Ala. Const. 1901, § 144; Ala.

Code 1975, § 12–13–1(b). The circuit court can

obtain jurisdiction over a pending administration of

an estate only by removing the administration from

the probate court to the circuit court pursuant to

Ala. Code 1975, § 12–11–41; see Ex parte Terry, 957

So. 2d 455, 457–58 (Ala. 2006); Ex parte McLendon,

824 So. 2d 700, 704 (Ala. 2001). ...

"'....'

"In Ex parte Smith, 619 So. 2d 1374, 1376 (Ala.

1993), this Court stated that '[t]he circuit court

cannot initiate the administration of an estate,

because the initiation of administration is a matter

exclusively in the jurisdiction of the probate

court.' As this Court more recently explained in Ex

parte Berry, 999 So. 2d 883 (Ala. 2008):

"'In stating in Ex parte Smith that

"[t]he circuit court cannot assume

jurisdiction over the administration of an

estate when the administration has not yet

begun," 619 So. 2d at 1375–76, this Court

was referring to subject-matter

jurisdiction. "Subject matter jurisdiction

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1130587; 1130884

concerns a court's power to decide certain

types of cases." Ex parte Seymour, 946 So.

2d 536, 538 (Ala. 2006). Our decision in

Ex parte Smith relied on § 12–13–1, Ala.

Code 1975, which grants probate courts

"original and general jurisdiction" over

all matters enumerated in that statute,

including the probate of wills and disputes

over the right of executorship and

administration.'

"999 So. 2d at 887–88 (emphasis omitted).

"Further, the administration of an estate does

not begin merely upon the filing in the probate

court of a petition for letters of administration or

of a petition for probate of a will and for letters

testamentary. As to the former, this Court has

recognized that 'the mere filing of a petition for

the administration of an estate does not in itself

begin the administration; rather, the probate court

must act upon the petition and thereby activate the

proceedings, which may thereafter be subject to

removal to the circuit court.' Ex parte Smith, 619

So. 2d at 1376; see also, e.g., Allen v. Estate of

Juddine, 60 So. 3d 852, 855 (Ala. 2010) ('The

administration of the estate was initiated by the

probate court when it granted Willie Jr. letters of

administration.'); Ex parte Berry, 999 So. 2d at 886

('[T]his Court in Ex parte Smith[, 619 So. 2d 1374

(Ala. 1993),] held that removal of the will

proceeding from the probate court to the circuit

court was premature because the probate court had

not initiated the administration of the estate by

acting on the petition.'); and Ex parte Kelly, 243

Ala. 184, 187, 8 So. 2d 855, 857 (1942). As to the

latter, this Court has noted that, where no letters

of general administration have issued from the

probate court and where the decedent's will has not

yet been admitted to probate, the circuit court 'is

without jurisdiction to make an order' removing the

administration of the estate from the probate court

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to the circuit court. Ex parte Pettus, 245 Ala.

349, 351, 17 So. 2d 409, 410–11 (1944)."

68 So. 3d at 821-22. DuBose is distinguishable because it

involved the removal of the administration of an estate from

the probate court to the circuit court. Section 12-11-41,

Ala. Code 1975, expressly provides that the circuit court can

obtain jurisdiction over a pending administration of an estate

from a probate court only by removing the administration from

the probate court. The "administration" of an estate, so as

to allow the circuit court to have jurisdiction to order a

removal, does not begin upon the mere filing of a petition to

probate a will. Rather, the probate court must act by granting

the petition and opening an estate, either testate or

intestate, and issuing the appropriate probate letters to a

personal representative. Our holding in DuBose that

"administration" does not begin with the filing of a petition

to probate a will is not analogous with "commencing" a probate

proceeding under § 43-8-21. Section 43-8-21(b) involves venue

as between multiple probate courts, each with subject-matter

jurisdiction, and the question is in which probate court is

venue proper. For purposes of § 43-8-21, "commencing" is the

filing of the petition to probate a will or administer an

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estate in the probate court, whereas removal of a probate

proceeding to the circuit court is allowed only when the

probate court has acted upon a petition and created a probate

estate. 

Based on the foregoing, we hold that venue in this case

is proper in the Monroe Probate Court, by virtue of § 43-8-162

and § 43-8-21. Any argument as to whether the 1995 will or

the 2007 will is the valid last will and testament of the

decedent and entitled to admission to probate is a question on

the merits and has yet to be determined. We reverse the

judgment of the Escambia Probate Court admitting the 2007 will

to probate and appointing William as a personal representative

because, under § 43-8-21, the Monroe Probate Court has the

"exclusive right to proceed." We remand the cause (probate

no. 10058) to the Escambia Probate Court, which shall set

aside its order admitting the 2007 will to probate and

appointing William as personal representative, recalling and

revoking any letters testamentary issued therewith. William's

petition filed in Escambia County shall be held in abeyance in

accordance with § 43-8-21(b). We reverse the judgment of the

Monroe Probate Court because it erred in dismissing Alice's

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petition to probate the 1995 will. We remand the cause

(probate no. 3330) to the Monroe Probate Court for proceedings

consistent with this opinion, i.e., to proceed with Alice's

petition to probate the 1995 will allegedly executed by the

decedent in light of its status as the first "commenced"

probate proceeding of the decedent's estate under § 43-8-21.

1130587 –- REVERSED AND REMANDED.

1130884 –- REVERSED AND REMANDED.

Moore, C.J., and Stuart, Parker, Murdock, Shaw, Main,

Wise, and Bryan, JJ., concur.

 

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