Rel: May 31, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2023-2024
_________________________
SC-2023-0636 _________________________
Ex parte Marion Kristen McLeroy, as personal representative of the Estate of Nella Ruth Braswell, deceased
PETITION FOR WRIT OF MANDAMUS
(In re: The Humane Society of the United States
v.
Marion Kristen McLeroy)
(Jefferson Circuit Court: CV-23-902471) SC-2023-0636
MITCHELL, Justice. 1
Nella Ruth Braswell died in 2014, leaving behind 6 cats, 13 dogs,
and an estate valued at over $2,000,000. In her will, Braswell provided
for the continuing care of her animals until the last one died, with the
remaining funds to be given to The Humane Society of the United States
("the Humane Society").
After Braswell died, the Jefferson Probate Court accepted her will
and opened an estate in her name. In accordance with the terms of
Braswell's will, the probate court appointed Marion Kristen McLeroy as
the personal representative of the estate, and McLeroy began managing
the estate's assets. At some point, the Humane Society became
dissatisfied with McLeroy and had the estate proceeding removed from
probate court to the Jefferson Circuit Court. McLeroy objected, but the
circuit court refused to relinquish the case. McLeroy now petitions our
Court for a writ of mandamus directing the circuit court to return the
case to probate court. We grant the petition and issue the writ.
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Mitchell on March 1, 2024. 2 SC-2023-0636
Facts and Procedural History
During their lifetimes, Braswell and her husband amassed over 200
acres in north Jefferson County. Their holdings included a bar and grill,
a 10-unit apartment building, a flea market, a gun store, and a winery.
But after Braswell's husband died, those businesses closed and the
condition of the properties began to deteriorate.
A. Braswell's Will
Braswell executed a will about a year and a half before she died.
Her will included gifts to several close friends and family members.
Braswell also left much of her real estate to the Humane Society and
designated it as the residuary beneficiary of her estate. But the most
notable feature of Braswell's will was its creation of a trust ("the Animal
Trust") to provide for the future care of her animals. Braswell stated in
her will that she wanted her animals to continue living at her home until
they died. To achieve that, she directed the Animal Trust to pay all
expenses necessary for the animals' care. Those expenses included a
salary for the animals' caregivers and the "taxes, insurance, and all
expenses of maintaining" Braswell's home.
3 SC-2023-0636
Braswell's will provided guidance about how the Animal Trust
should be funded. Specifically, the will directed that Braswell's home
(and the accompanying outbuildings) be placed in the Animal Trust,
along with $100,000 from the cash in her estate. The will also authorized
the personal representative of Braswell's estate to sell other estate assets
to provide funding, subject to the condition that any "funds over and
above the amount needed to fund the trust" should be paid to the Humane
Society. Finally, the will stated that the Humane Society would receive
any assets left in the Animal Trust once the last of Braswell's animals
died.
B. The Probate Court Opens Braswell's Estate
After Braswell died, McLeroy submitted Braswell's will to the
probate court, which opened an estate and appointed McLeroy as the
personal representative. Several months later, McLeroy returned to the
probate court, seeking guidance about the Animal Trust and how to care
for Braswell's animals because the trustee and caregivers named in
Braswell's will had declined their appointments. The probate court
appointed McLeroy and her husband cotrustees of the Animal Trust and
directed her to fund the trust with $370,000 from Braswell's estate.
4 SC-2023-0636
Additionally, the probate court directed McLeroy to sell some of the land
Braswell had owned and remit the proceeds of those sales to the Humane
Society. If McLeroy could not find a buyer for the land within a year, the
probate court instructed, she was to give the land to the Humane Society.
The materials before this Court do not reveal all that occurred
between the parties in the nine years after Braswell's death, but it
appears that they initially had a working relationship. At the Humane
Society's suggestion, McLeroy placed Braswell's animals in a local animal
hospital because many of them were in poor health and Braswell's home
needed significant repairs.2 As Braswell's animals died off, McLeroy and
the Humane Society also discussed the possibility of terminating the
Animal Trust and transferring the trust assets to the Humane Society.
Those discussions were ultimately fruitless, however, because they could
not agree on how much money would be needed for the surviving animals.
McLeroy and the Humane Society also had occasional discussions
about selling some of the land that she was managing, but no sales were
ever completed. There is no indication in the materials before us that
2The animals eventually returned to the home, but the date of their
return is unclear. 5 SC-2023-0636
any land or other estate assets were ever distributed to the Humane
Society.
C. The Relationship Between McLeroy and the Humane Society Deteriorates
The parties reengaged in early 2023 when a new attorney began
handling the matter for the Humane Society. After some initial
discussions with McLeroy's attorney about the status of the estate, the
Humane Society requested deeds to all the property Braswell had owned,
as well as a formal accounting of both the estate and the Animal Trust.
McLeroy's attorney responded by supplying some of the requested
information, but she explained in an email that she was "preparing a
final settlement for the estate and for the trust" and that additional
information and documentation would be available "as soon as the
petition for final settlement of the estate and the trust is completed."
Almost two months later -- before McLeroy filed her petition to
settle the estate and close the Animal Trust -- the Humane Society asked
the probate court to remove McLeroy as the personal representative of
Braswell's estate. The Humane Society specifically argued that McLeroy
had failed to properly manage the estate and had breached her fiduciary
duties to both the estate and the Humane Society. See generally § 43-2- 6 SC-2023-0636
290, Ala. Code 1975 (listing grounds for the removal of a personal
representative).
That same day, the Humane Society filed a complaint against
McLeroy and her husband in the circuit court, thereby initiating a new
action. In its complaint, the Humane Society alleged that McLeroy and
her husband had improperly concealed information about the
administration of the Animal Trust, had allowed trust assets to go to
waste, and had failed to distribute trust assets that were not needed by
the trust. The Humane Society asked the circuit court to remove
McLeroy and her husband as cotrustees of the Animal Trust and to direct
their successor to distribute the trust assets that were no longer needed
to care for Braswell's animals. The Humane Society also asked the circuit
court to order McLeroy and her husband to reimburse the Animal Trust
for any losses caused by their alleged breaches of their fiduciary duties.
Notably, however, the Humane Society did not ask the circuit court to
remove the estate proceeding from the probate court and consolidate the
cases.
7 SC-2023-0636
D. McLeroy Petitions the Probate Court for Final Settlement
One month later, McLeroy petitioned the probate court to enter a
final settlement of Braswell's estate. McLeroy stated in her petition that
the estate held cash assets of $618,684 and real property worth an
estimated $1,000,000; that all gifts made by Braswell in her will had been
paid (except for what was owed to the Humane Society); and that all other
estate matters had been settled in accordance with the terms of
Braswell's will. McLeroy also stated that only one of Braswell's animals
was still alive and that she and her husband were caring for it at their
home. McLeroy therefore asked the probate court to award her a sum for
the future care of that animal and to close the Animal Trust along with
the estate. According to McLeroy, the only remaining issues of the estate
and the Animal Trust involved attorney fees, any awards made as part
of the final settlement, and finalizing the transfer of property and the
estate's remaining assets to the Humane Society. Along with her
petition, McLeroy included canceled checks showing that the gifts
Braswell had made in her will had been paid and ledgers showing the
income earned and expenses incurred by both the estate and the Animal
Trust.
8 SC-2023-0636
McLeroy later amended her petition to include a statement listing
the names and contact information of Braswell's heirs. McLeroy then
served those heirs and the other beneficiaries of Braswell's estate with
notice that she had "filed her accounts, vouchers, evidence and statement
for a final settlement." That notice also informed the heirs and
beneficiaries that the probate court had set a date for the final-settlement
hearing at which they could "appear and contest" her petition for final
settlement if they had reason to do so.
E. The Circuit Court Removes the Administration of Braswell's Estate from the Probate Court
Three days before the scheduled hearing, the Humane Society
petitioned the circuit court to remove the administration of Braswell's
estate under § 12-11-41, Ala. Code 1975. The circuit court granted the
Humane Society's petition two days later and, on the Humane Society's
motion, consolidated the estate proceeding with the pending circuit-court
action seeking the removal of McLeroy and her husband as cotrustees of
the Animal Trust.
McLeroy asked the circuit court to vacate its order removing the
estate proceeding from the probate court. In doing so, she argued that
the Humane Society had waited too long to seek removal because, she 9 SC-2023-0636
said, final-settlement proceedings had already begun in the probate court
at the time the Humane Society sought removal. After a hearing, the
circuit court denied McLeroy's motion, stating that "the probate court's
jurisdiction to act upon a petition for final settlement had not attached"
at the time of removal.
McLeroy now petitions this Court for mandamus relief, asking us
to issue a writ directing the circuit court to remand the estate proceeding
to the probate court.
Standard of Review
A trial court's ruling on whether it has subject-matter jurisdiction
over a case is reviewable by a petition for a writ of mandamus. Ex parte
Marshall, 323 So. 3d 1188, 1195 (Ala. 2020). Because a challenge to a
circuit court's removal of an estate proceeding under § 12-11-41
implicates that court's subject-matter jurisdiction, see Ex parte Berry,
999 So. 2d 883, 885 (Ala. 2008), mandamus review is available to
McLeroy here. Whether a court lacks subject-matter jurisdiction is a
question of law that we review de novo. Id.
10 SC-2023-0636
Analysis
McLeroy argues that the Humane Society's petition to remove the
administration of Braswell's estate from the probate court to the circuit
court came too late. According to her, the probate court had already
begun final-settlement proceedings when the Humane Society sought
removal, which gave that court exclusive jurisdiction over the estate
proceeding. The Humane Society pushes back, arguing that final
settlement was impossible when McLeroy filed her settlement petition
because there were still outstanding matters to resolve, including the
Humane Society's request to remove McLeroy as personal representative.
The Humane Society may be correct that there are outstanding
issues to resolve before Braswell's estate can be settled. But that does
not prevent the final-settlement process in probate court from going
forward -- after all, the very purpose of that process is to identify and
resolve any issues standing in the way of final settlement. And under
our longstanding precedents, once a probate court begins that process, a
circuit court no longer has any authority to divest the probate court of its
exclusive jurisdiction over the estate proceeding. Accordingly, McLeroy
is entitled to the mandamus relief she seeks.
11 SC-2023-0636
A. Removal Under § 12-11-41
Section 12-11-41 provides that "[t]he administration of any estate
may be removed from the probate court to the circuit court at any time
before a final settlement thereof …." (Emphasis added.) For over 100
years, this Court has applied a bright-line rule that, once the final-
settlement process for an estate has begun in the probate court, the
circuit court may no longer acquire jurisdiction over the administration
of the estate under § 12-11-41 (or its predecessor statutes). See, e.g., Ex
parte Clayton, 514 So. 2d 1013, 1016 (Ala. 1987) (explaining that while
the right of removal under § 12-11-41 is broad, that right is limited "once
the probate court has taken steps toward a final settlement"). Neither of
the parties before us have questioned this line of precedent or its view of
the removal statute.
1. Precedential Origins
The rule limiting a party's right to remove an estate proceeding
from a probate court to a circuit court has its origins in Carpenter v.
Carpenter, 200 Ala. 96, 96, 75 So. 472, 472 (1917). In Carpenter, our
Court rejected a party's attempt to remove the administration of an
estate from the probate court to "the court of equity," explaining that no
12 SC-2023-0636
statute authorized "the ouster of the jurisdiction of probate courts, where
that court has actually entered upon the exercise of its jurisdiction in and
for a final settlement of estates …." Id. Seven years later, in Ex parte
McLendon, 212 Ala. 403, 405, 102 So. 696, 698 (1924) ("McLendon I"), our
Court specifically held that "[t]he words 'at any time before a final
settlement,' found in the removal act, mean before proceedings for
settlement begin, not before they are completed." (Emphasis added.)
Later cases have uniformly applied § 12-11-41 in accordance with
Carpenter and McLendon I. Two of those cases -- Ex parte Terry, 957 So.
2d 455, 459 (Ala. 2006) ("Terry I"), and Ex parte Terry, 985 So. 2d 400,
404 (Ala. 2007) ("Terry II") -- are particularly illustrative of the law and
proper procedures to follow in cases involving removal petitions filed
under § 12-11-41.
2. The Application of § 12-11-41 in the Terry Cases
The Terry cases involved a dispute between a father and his two
sons about the estate of their mother. Terry II, 985 So. 2d at 401. The
father, who was the administrator of the mother's estate, petitioned the
probate court for a final settlement of the estate and submitted "an
accounting of assets and a statement of heirs." Id. The probate court
13 SC-2023-0636
then scheduled a final-settlement hearing, at which the sons appeared
and objected to the father's accounting. Id. Because of the sons' objection,
the probate court declined to enter a final settlement, instead issuing an
order "directing discovery, setting a date for trial, and identifying the
issues for trial." Id. at 403.
After "the parties engaged in discovery and a series of motions,
responses, and hearings," the father petitioned the circuit court to
remove the administration of the mother's estate under § 12-11-41. Id.
at 401. But the probate court entered an order purporting to deny the
petition for removal -- which had been filed in the circuit court -- because,
in the probate court's view, "final settlement of the administration of the
estate had begun." Terry I, 957 So. 2d at 456. After the circuit court
entered its own order denying the petition for removal, the father
petitioned this Court for mandamus review. Id.
a. The Terry I Court Identifies the Error of the Probate Court and Circuit Court But Denies the Father Mandamus Relief
The Terry I Court concluded that both the probate court and the
circuit court had fumbled their handling of the case. The Court explained
that § 12-11-41 does not require a party petitioning for removal to plead
14 SC-2023-0636
facts establishing that the removal petition is timely; rather, the statute
requires only the filing of a sworn petition reciting that the petitioner is
an interested party as set forth by the statute and that, in the petitioner's
view, "such estate can be better administered in the circuit court than in
the probate court." § 12-11-41; Terry I, 957 So. 2d at 457-58. Thus, when
a proper party files a sworn petition seeking removal under § 12-11-41,
the circuit court should enter the order of removal as "a formality." Id.
at 458. In other words, the probate court has no role in deciding whether
removal is proper once a petition invoking § 12-11-41 has been filed in
the circuit court. Id. See also Ex parte McLendon, 824 So. 2d 700, 704
(Ala. 2001) ("To allow the probate court to decide that issue as a threshold
matter would eviscerate § 12-11-41. … [I]t would effectively deny the
party seeking removal the right conferred by statute to have her status
determined by the circuit court.").
The Terry I Court went on to explain that parties opposing removal
under § 12-11-41 should present their arguments to the circuit court after
removal, because the circuit court has the authority to remand an estate
proceeding to the probate court if it determines that removal was
improper. 957 So. 2d at 458. Accordingly, the Terry I Court concluded
15 SC-2023-0636
that the probate court had erred by purporting to deny the father's
removal petition and that the circuit court had erred by not expeditiously
granting that same petition. Id. at 459. Despite those errors, however,
this Court denied the father's mandamus petition because it was directed
to the probate court when it was the failure of the circuit court to grant
the removal petition that was "[t]he root of the problem." Id.
b. The Terry II Court Affirms the Circuit Court's Order Remanding the Administration of the Mother's Estate to the Probate Court
After this Court's decision in Terry I, the circuit court reexamined
its decision denying the father's removal petition. Terry II, 985 So. 2d at
402. Concluding that it had erred by denying that petition, the circuit
court vacated its previous order and removed the administration of the
mother's estate from the probate court. Id. The sons responded by asking
the circuit court to remand the case to the probate court because, they
said, the father's removal petition was untimely. Id. The circuit court
agreed, concluding that the father "had properly petitioned the probate
court to begin final settlement proceedings and that the probate court
had taken jurisdiction in the case" before the father had filed his removal
petition. Id. Accordingly, the circuit court remanded the administration
16 SC-2023-0636
of the mother's estate to the probate court, after which the father filed
the appeal that was the subject of Terry II. Id.3
This Court's analysis of the father's arguments in Terry II was
straightforward. After noting the winding course the case had taken, the
Court stated that two things were "clear" when the father filed his
removal petition: (1) he had already "invoke[d] the probate court's
jurisdiction over the final settlement of the estate by submitting his
petitions, amendments, supplements, and accounts for a final
settlement" and (2) "the probate court had accepted jurisdiction over the
administration of the estate and had taken steps toward final
settlement." Id. at 403-04. The Court thus concluded that, "[d]espite the
wide latitude" § 12-11-41 generally affords an interested party to remove
an estate proceeding, the father's removal petition was untimely. 985 So.
2d at 404. Accordingly, the Court affirmed the circuit court's order
3Following remand of the administration of the mother's estate to
the probate court, the father filed both an appeal and a mandamus petition challenging the circuit court's remand order. Terry II, 985 So. 2d at 402. This Court denied his mandamus petition on procedural grounds, explaining that the circuit court's order remanding the estate proceeding back to the probate court was a final judgment that supported an appeal. Id. (citing Ex parte Kelly, 243 Ala. 184, 187, 8 So. 2d 855, 857 (1942)). 17 SC-2023-0636
remanding the administration of the mother's estate to the probate court.
Id. at 404 (further noting that "this Court has consistently held that once
final settlement proceedings have been commenced by the probate court's
assumption of jurisdiction, removal is cut off").
B. Applying the Terry Cases Here
The sequence of events here mirrors what occurred in the Terry
cases. Specifically, the estate administrator petitioned the probate court
to begin final-settlement proceedings; the probate court scheduled a
final-settlement hearing and sent notice of that hearing to interested
parties; and only then did one of the parties invoke § 12-11-41 and
petition the circuit court to remove the estate proceeding from the
probate court. Applying the holdings of the Terry cases, the circuit court
did not err by granting the Humane Society's petition for removal -- the
court was obligated to grant that petition because it contained all that
was required by § 12-11-41. But after McLeroy moved the circuit court
to reconsider, the court should have recognized that final-settlement
proceedings had begun in the probate court before the Humane Society
sought removal. See McLendon I, 212 Ala. at 405, 102 So. at 698
("Jurisdiction for final settlement in the probate court begins upon filing
18 SC-2023-0636
accounts and vouchers with statement of the heirs invoking the court's
jurisdiction for such settlement and an order entered setting day,
directing notice, etc."). Consequently, the Humane Society's right to
removal had been "cut off" before it invoked § 12-11-41, and the circuit
court erred by not granting McLeroy's request to remand the estate
proceeding to the probate court. Terry II, 985 So. 2d at 404.
C. Whether Braswell's Estate is Ready for Final Settlement
In the face of our caselaw, the Humane Society nonetheless
maintains that its removal petition was timely because, it says, "the
condition of the estate" when McLeroy petitioned for final settlement
precluded any such settlement from being entered. See § 43-2-501, Ala.
Code 1975 ("Final settlement may be made at any time after six months
from the grant of letters, if the debts are all paid and the condition of the
estate in other respects will admit of it."). Specifically, the Humane
Society argues that its pending petition to remove McLeroy as personal
representative -- and its corresponding claims that McLeroy breached her
fiduciary duties -- act as a bar to final settlement until those issues are
resolved.
19 SC-2023-0636
But even if the Humane Society is right that Braswell's estate was
not ready to be settled when McLeroy filed her final-settlement petition,
once the probate court acted on that petition, it had exclusive jurisdiction
to make that determination. To be sure, the Humane Society can
advance its arguments about why a final settlement of Braswell's estate
should not be made to the probate court at the final-settlement hearing.
As in the Terry cases, the probate court may decide that additional
proceedings -- including hearings, discovery, and even a trial -- are
necessary first. 4 See Terry II, 985 So. 2d at 403. But, as the Terry cases
made clear, once the final-settlement process has begun in the probate
4If the probate court rejects the Humane Society's argument that
Braswell's estate is not ready for final settlement and grants McLeroy's petition, the Humane Society may file an appeal to either the circuit court or this Court. See § 12-22-21, Ala. Code 1975 (providing "the party aggrieved" by the probate court's entry of final settlement with the right to appeal "to the circuit court or Supreme Court"). See Broughton v. Merchants Nat'l Bank of Mobile, 476 So. 2d 97, 103 (Ala. 1985) (explaining that "[r]emoval was not [the appellant's] only possible course of action" because even though he had "lost the right to removal [under § 12-11-41] when the probate court entered upon final settlement," he could still file an appeal to the circuit court after a final judgment was entered); McCormick v. Langford, 516 So. 2d 643, 646 (Ala. 1987) (agreeing with the appellant's contention "that the [probate] court erred in ordering a final settlement of an estate"). The Humane Society is simply wrong that these procedures fail to effectively protect its due- process rights or leave it without a remedy. 20 SC-2023-0636
court, any additional proceedings that are required for final settlement
must also be conducted in the probate court. Id. at 404. A party's right
to remove an estate proceeding to the circuit court under § 12-11-41 is
irrevocably "cut off" after that process begins. Id. The Humane Society's
reliance on § 43-2-501 is therefore unfounded.
Conclusion
For over 100 years, this Court has held that a circuit court cannot
acquire jurisdiction over the administration of an estate after a probate
court begins the final-settlement process for that estate. Thus, when the
probate court began that process for Braswell's estate here, the Humane
Society's right to remove the proceeding to the circuit court was cut off.
Because the circuit court has no jurisdiction over the administration of
Braswell's estate, McLeroy has a clear legal right to the mandamus relief
she seeks. We therefore grant her petition and issue a writ directing the
circuit court to (1) vacate its order consolidating the estate proceeding
with the Humane Society's other action against McLeroy and her
husband and (2) enter an order remanding the administration of
Braswell's estate to the probate court.
PETITION GRANTED; WRIT ISSUED.
21 SC-2023-0636
Parker, C.J., and Shaw, Bryan, Stewart, and Cook, JJ., concur.
Sellers, J., dissents, with opinion, which Mendheim, J., joins.
Wise, J., recuses herself.
22 SC-2023-0636
SELLERS, Justice (dissenting).
Marion Kristen McLeroy, who is the personal representative of the
estate of Nella Ruth Braswell, deceased, petitioned this Court for a writ
of mandamus directing the Jefferson Circuit Court to vacate an order
consolidating the administration of Braswell's estate with a separate civil
action that is pending in the circuit court against McLeroy and her
husband and to remand the administration of Braswell's estate to the
Jefferson Probate Court. I respectfully dissent from this Court's decision
to grant McLeroy's petition.
As noted in the main opinion, Braswell died in 2014 and McLeroy,
who was designated in Braswell's will as the personal representative of
Braswell's estate, offered Braswell's will for probate in the Jefferson
Probate Court. The will was admitted, and McLeroy was appointed as
the personal representative of Braswell's estate.
As also noted in the main opinion, the terms of Braswell's will called
for the creation of what the main opinion refers to as "the Animal Trust"
to provide for the care of animals Braswell owned when she died, and
McLeroy and her husband are cotrustees of the Animal Trust. The
Humane Society of the United States ("the Humane Society") is a
23 SC-2023-0636
beneficiary of the Animal Trust and is to receive any trust funds that are
not needed for the care of Braswell's animals. The Humane Society is
also the residuary beneficiary under Braswell's will.
In April 2023, the Humane Society petitioned the probate court to
remove McLeroy as the personal representative of Braswell's estate. The
Humane Society asserted that McLeroy had improperly commingled
assets, had failed to properly distribute assets, had failed to provide
meaningful responses to the Humane Society's requests for an
accounting and for other documentation, and had allowed estate assets
to go to waste. The Humane Society also commenced a separate civil
action against McLeroy and her husband in the Jefferson Circuit Court,
seeking to remove them as trustees of the Animal Trust and to recover
damages for their alleged breaches of duties under the Animal Trust ("the
Animal Trust action"). The adversarial estate proceeding and the Animal
Trust action are intertwined, as they involve virtually identical parties,
they have overlapping claims, and the resolution of the claims in one
action are likely to resolve claims in the other action.
According to the Humane Society, its petition to remove McLeroy
as the personal representative of Braswell's estate triggered duties in the
24 SC-2023-0636
probate court to set a hearing on that petition, to direct McLeroy to
appear and answer the petition, and to hear the relevant evidence. See
§§ 43-2-294 & 43-2-296, Ala. Code 1975. 5 However, a little less than a
month after the Humane Society sought to remove McLeroy as personal
representative of Braswell's estate, McLeroy filed a petition in the
probate court seeking a final settlement of that estate. Subsequently, the
Humane Society petitioned the Jefferson Circuit Court to remove the
administration of Braswell's estate from the probate court to the circuit
court. See § 12-11-41, Ala. Code 1975 (generally authorizing the removal
of the administration of an estate from a probate court to a circuit court).
Two days later, the circuit court entered an order removing the estate
administration from the probate court and later consolidated the estate
administration with the Animal Trust action. The circuit court later
denied McLeroy's request to reconsider and to remand the estate
administration to the probate court, and McLeroy filed the present
petition for a writ of mandamus.
5The Humane Society also asserts that, pursuant to § 43-2-296, it
was entitled to a jury trial on its claim that McLeroy had mismanaged Braswell's estate. 25 SC-2023-0636
Section 12-11-41 provides that the administration of an estate may
be removed from the probate court to the circuit court at any time before
a final settlement of the estate:
"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 special equity …."
(Emphasis added.)
It is undisputed that a final settlement of Braswell's estate had not
been completed by the time the Humane Society requested removal of the
estate administration to circuit court. According to McLeroy, however,
the circuit court's ability to remove was cut off once "the probate court
had commenced proceedings toward final settlement." Petition at 6
(emphasis added). As McLeroy points out, notwithstanding the clear
language in § 12-11-41 allowing removal of an estate administration from
a probate court to a circuit court at any time before final settlement of
the estate, this Court's precedent appears to further restrict the ability
to remove. See, e.g., Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696,
698 (1924) ("The words 'at any time before a final settlement,' found in
the removal act, mean before proceedings for settlement begin, not before 26 SC-2023-0636
they are completed. The better and approved practice is to aver in the
removal petition that no steps have been taken for a settlement in the
probate court."). The Humane Society, on the other hand, takes the
position that proceedings for a final settlement simply could not formally
begin until resolution of the Humane Society's claim that McLeroy had
breached her duties as personal representative of the estate and
therefore should be removed from that role. According to the Humane
Society, until that matter was resolved, the probate court did not have
the power to start proceedings toward a final settlement insofar as it
would cut off the circuit court's ability to remove the administration of
the estate. I agree with the Humane Society.
None of the precedents upon which McLeroy relies involved the
removal of an estate administration after a personal representative had
attempted to begin proceedings toward final settlement of a decedent's
estate after a party had petitioned to remove that personal
representative for alleged malfeasance. As the Humane Society points
out, "[f]inal settlement [of a decedent's estate] may be made at any time
after six months from the grant of letters, if the debts are all paid and
the condition of the estate in other respects will admit of it." § 43-2-501,
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Ala. Code 1975 (emphasis added). "When a bill seeks to compel a final
settlement of a decedent's estate, it must show that the estate is ready
for such a settlement." Baker v. Mitchell, 109 Ala. 490, 493, 20 So. 40,
43 (1896). Of note, in Baker, this Court concluded that a bill removing
the administration of a decedent's estate from the probate court, which
suggested that the interests of the administrator of the estate were in
some respects antagonistic and hostile to the estate, could not be
construed as a bill seeking to compel a final settlement of the estate
because, instead of showing that the estate was ready for a settlement,
the bill accusing the administrator of having interests hostile to the
estate showed the opposite, i.e., that "the estate [was] not ready to be
settled." Id. (emphasis added). In the present case, a petition to remove
McLeroy as the personal representative of Braswell's estate for alleged
malfeasance was pending when McLeroy petitioned for a final
settlement. As noted, the Humane Society points to statutes indicating
that its petition to remove McLeroy triggered certain procedural and
substantive requirements, such as requiring McLeroy to appear and
answer the Humane Society's allegations of malfeasance, the setting of a
hearing on the Humane Society's petition, and the receipt and
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consideration of evidence supporting (or opposing) the same. Braswell's
estate was not ready to be settled at the time McLeroy attempted to start
final-settlement proceedings.
I acknowledge this Court's opinion in Broughton v. Merchants
National Bank of Mobile, 476 So. 2d 97 (Ala. 1985), although neither side
in this dispute relies on Broughton. In that case, Merchants National
Bank of Mobile ("Merchants"), which was serving as the executor of a
decedent's estate in a probate court, filed a petition for final settlement
of the estate. An heir of the decedent appeared at the hearing on the
petition and filed a legal brief objecting to a final settlement and accusing
Merchants of failing to fulfill its duties as the executor of the decedent's
estate and as the trustee of a living trust that had existed for the benefit
of the decedent during her life, the corpus of which was to be paid over to
the decedent's estate upon her death. The probate court, however,
rejected the heir's arguments and entered a final decree settling the
estate and finding that Merchants had properly administered the estate.
Instead of appealing from the probate court's judgment, the heir
filed a separate lawsuit against Merchants in the circuit court, accusing
it of mismanaging the trust. In holding that the heir's lawsuit was barred
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by principles of res judicata, this Court concluded that the probate court
in the estate proceeding had had jurisdiction to render a final-settlement
decree "even though issues of [Merchant's alleged] negligence and
mismanagement were raised [by the heir]." 476 So. 2d at 101.
Although removal of an estate administration from the probate
court to the circuit court was not an issue involved in Broughton, the
Court in that case noted in what appears to be dicta that the heir "could
have asserted his claims sounding in tort [against Merchants] by having
the [estate administration] removed to the circuit court before the
probate court had rendered its decree of final settlement." Id. at 103. But
the Court also stated that "[r]emoval was not [the heir's] only possible
course of action" in that, "[h]aving lost the right to removal when the
probate court entered upon final settlement …, [the heir] could have
appealed to the circuit court …." Id. (emphasis omitted). The Court,
however, did not reveal exactly what it meant in referring to the probate
court's having "entered upon final settlement." Thus, even if the
referenced quoted portions of Broughton were not dicta, it is not clear
which side of this dispute they would support.
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In considering orders removing an estate administration from a
probate court to a circuit court, this Court has stressed that a writ of
mandamus will not issue unless the petitioner has demonstrated "a clear
and indisputable right" to have the estate administration remanded to
the probate court. Ex parte Clayton, 514 So. 2d 1013, 1015 (Ala. 1987).
In the present case, in which the personal representative of a decedent's
estate attempted to begin proceedings toward a final settlement of the
estate shortly after the filing of a petition to remove the representative
for alleged malfeasance, I am not convinced that it is clear and
indisputable that the circuit court no longer had the authority to remove
the administration of the estate from the probate court.
From my review of the materials before the Court, it appears that
McLeroy engaged in legal gamesmanship by filing a petition for a final
settlement in an attempt to defeat the Humane Society's substantive
claims when it was obvious that Braswell's estate was not ready for final
settlement. By allowing the Humane Society to remove the estate
administration to the circuit court and then consolidating the estate
administration with the Animal Trust action, the circuit court
appropriately realized that the sum and substance of the matters were
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the same and that consolidation would serve the interests of judicial
economy. The main opinion fails to appreciate that, and by directing that
the estate administration should be remanded to the probate court, it
creates an existential risk of inconsistent results, because the probate
court has no jurisdiction to hear the Animal Trust action. I would deny
the petition for the writ of mandamus. Accordingly, I respectfully
dissent.
Mendheim, J., concurs.