Lead Opinion
Yolanda Allen appeals from an order of the Etowah Circuit Court requiring her to petition the Etowah Probate Court to probate a lost will with respect to an estate, the administration of which had been removed to the circuit court under § 12-11-41, Ala.Code 1975. We reverse and remand.
Factual Background and Procedural History
Willie C. Juddinе, Sr. (“Willie Sr.”), died on October 24, 2009. He had three children, Willie C. Juddine, Jr. (Willie Jr.), Amber Juddine, and Hacienda Juddine; only Hacienda was still a minor at the time of Willie Sr.’s death. On December 7, 2009, Willie Jr. filed a petition with the Etowah Probate Court (“the probate court”) alleging that Willie Sr. had died intestate, leaving no will. Willie Jr. requested that the probate court name him administrator of Willie Sr.’s estate (“the estate”) and grant him letters of administration. On the same day, the probate court entered an order granting letters of administration to Willie Jr. On December 21, 2009, the probate court entered an order expressly granting Willie Jr. authority to enter Willie Sr.’s home and take possession of its contents as administrator of Willie Sr.’s estate.
On December 28, 2009, Yolanda Allen filed a petition with the Etowah Circuit Court (“the circuit court”) requesting that administration of Willie Sr.’s estate be removed to the circuit court under § 12 — 11— 41, Ala.Code 1975. Allen аlleged that she had been Willie Sr.’s common-law wife and that Willie Sr. had executed a will in August 2009 naming her as a beneficiary. Allen alleged that Willie Sr. had executed the will in her presence and in the presence of Amber while he was in the hospital. Allen contended that the will was in Amber’s possession but that Amber had refused to probate it. Based on those assertions and based on Willie Jr.’s assertion that no will existed, Allen stated her opinion that the estate would be better administered in the circuit court.
Allen attached to her petition for removal an unsigned copy of the will she allegеd Willie Sr. had executed in August 2009. That will does not list Willie Jr. as one of Willie Sr.’s children. It names Amber as executor and Allen as alternate executor of the estate. It gives Allen a life estate in Willie Sr.’s residence and, aside from specific bequests of personal property, provides that the remainder of the estate is to be divided evenly between Amber and Hacienda.
On December 28, 2009, the circuit court entered an order granting Allen’s petition and removing the estate from the probate court pursuant to § 12-11-41. The circuit court also ordered Amber to appear at a hearing and to produce the will. Willie Jr. answered Allen’s petition, denying most of the material allegations in the petition. On the day the circuit court held a hearing regarding the existence of the will, Allen filed a petition requesting the court to probate the will. Willie Jr. moved to dismiss Allen’s petition to probate the will, arguing that the circuit court lacked jurisdiction to probate the will. The circuit court ordered briefs on the question of jurisdiction and, on March 11, 2010, entered an order finding that a lost will existed but that it did not have jurisdiction
On March 19, 2010, Allen petitioned this Court for a writ of mandamus directing the circuit court to retain jurisdiction of the estate and to probate the will. On May 18, 2010, this Court ordered that the mandamus petition be treated as a timely notice of appeal. See, e.g., Ex parte Kelly,
Analysis
Allen argues on appeal that the circuit court had exclusive jurisdiction of the administration of the estate. As a result, Allen argues, the circuit court erred in declining to probate the will and in ordering her to submit the will to the probate court. Willie Jr. has not filed a brief in this Court.
Probate courts have original and general jurisdiction over the probate of wills and over the “[t]he granting of letters testamentary and of administration.” See § 12-13-1, Ala.Code 1975. However, the administration of an estate may be removed from a probate court to a circuit court under the procedures stated in § 12-11-41, Ala.Code 1975. That section provides:
“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any sрecial equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, dis-tributee, executor, administrator or ad- ■ ministrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributеe, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”
Article VI, § 144, Ala. Const.1901, describes the power of a circuit court upon such a removal, stаting, in part: “[Wjhen-ever the circuit court has taken jurisdiction of the settlement of any estate, it shall have power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians, and trustees and including action uрon the resignation of either of them.” This Court has explained: “Once the administration and settlement of an estate are removed from the probate court, the probate court loses jurisdiction over the estate, and the circuit court obtains and maintains jurisdiction until the final settlement of the estate.” Oliver v. Johnson,
This Court has recognized the authority of a circuit court to retransfer the administration of an estate to the probate court where the removal was improper, such as where the petitioner lacked standing or where the probate court had already entered a final settlement of the estate. See Ex parte Terry,
“In Hinson v. Naugher,207 Ala. 592 ,93 So. 560 (1922), the Court stated that when the administration of an estate is removed from the probate court to an equity court, the jurisdiction of the equity court is exclusive and the equity court must enter the final settlement. See, also, Cater v. Howard,230 Ala. 133 ,159 So. 830 (1935) (when the administration of an estate is duly removed from the probate court into a court of equity, the jurisdiction of the equity court is complete to accomplish the ultimate purpose of the administration); Johnson v. Johnson,252 Ala. 366 ,41 So.2d 287 (1949) (when the administration of an estate is removed from the probate court to an equity court, the entire administration goes into equity for the complеtion of administration); and Opinion of the Clerk No. 32,390 So.2d 1040 (Ala.1980) (clerk expressed opinion that when the administration of an estate is removed from the probate court to the circuit court, the jurisdiction of the circuit court encompasses the power to make all orders necessary to the administration of the estate).
“The administration of [the subject] estate was properly removed from the probate court to the circuit court; the circuit court, therefore, has the exclusive jurisdiction to enter a final settlement of the estate.”
Ex parte Nelson,
In its March 11, 2010, order, the circuit court stated that its administration of the estate and the prоbate of the will were “two totally different matters,” noting the exclusive authority of the probate court to initiate the administration of an estate, citing Ex parte Smith,
“[T]he administration and settlement of a decedent’s estate in equity is a single and continuous proceeding; and when the administration of an estate is once removed from the probate court into a court of equity, its jurisdiction becomes exclusivе and efficient, and the court must operate to a final settlement governed by its oum procedure.”
Hinson v. Naugher,
The administration of the estate was initiated by the probate court when it granted Willie Jr. letters of administration. See Smith,
Conclusion
Based on the foregoing, to the extent it is inconsistent with this opinion, we reverse the circuit court’s March 11, 2010, order, аnd we remand the cause to the circuit court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Concurrence Opinion
(concurring specially).
I concur fully with the main opinion. I write specially to note the in rem nature of a probate proceeding involving a decedent’s estate.
As a former probate judge, I am well aware that often after the administration of an intestate’s estate is begun in the probate court and letters of administration are granted, a purported last will and testament of the decedent is located and filed for probate. In that scenario, a fiduciary/personal representative for the estate— the administrator — serves until the will is admitted to probate and letters testamentary are granted. At that time, a new fiduciary/personal representative for the estate — the executor — is appointed, the prior administration is terminatеd, letters of administration are recalled, and a final settlement of that administration is ordered. All of this occurs while the entire estate res and the jurisdiction thereof is properly before one court — the probate court — and only one personal representative аt a time is administering the decedent’s estate.
The more rare fact situation is found in this case, where an intestate action is initially commenced in the probate court, pursuant to the original and general jurisdiction granted the probate court by § 12-13-1, Ala.Code 1975, and thereafter the аdministration of the estate is removed to the circuit court pursuant to § 12-11-41, Ala.Code 1975. At the time of removal, the estate res is carried with the estate to the circuit court, which then takes sole jurisdiction of the in rem proceeding. The main opinion correctly cites Oliver v. Johnson,
In McCann v. Ellis,
“It has been uniformly ruled by all English and American cases which we have examined that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in per-sonam; that such proceedings are exclusively to determine the status of the res, and nоt the rights of the parties. Judgments or decrees as to the status of the res, in proceedings strictly in rem, are conclusive against all the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to the status, are only conclusive between the parties or privies to the suit.”
McCann,
As stated above, once the administration of the estate was removed from the probate court to the circuit court, the estate res and the in rem jurisdiction of it were also removed. Thereafter, the circuit court had the “power to do all things necessary for the settlement of such estate, including the apрointment and removal of administrators, executors, guardians, and trustees and including action upon the resignation of either of them.” Article VI, § 144, Ala. Const.1901 (emphasis added). The United States Supreme Court succinctly summed up the obvious jurisdictional principle involved in this case in Marshall v. Marshall,