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09/16/94 ROBERT LLOYD KINARD v. JESSIE C. JORDAN

September 16, 1994

ROBERT LLOYD KINARD
v.
JESSIE C. JORDAN AND HELEN J. DANIELS; HELEN J. DANIELS AND JESSIE C. JORDAN V. ROBERT LLOYD KINARD



Appeals from Clarke Circuit Court. (CV-86-125; 88-69). Hardie B. Kimbrough, Trial Judge.

Released for Publication December 7, 1994. As Corrected April 14, 1995.

Almon, Shores, Houston, Steagall, Kennedy, and Cook, JJ., concur.

The opinion of the court was delivered by: Almon

ALMON, JUSTICE.

Robert Louis Kinard appeals from a judgment entered after a bench trial awarding title to 80 acres of real property to Jessie C. Jordan and Helen J. Daniels; Jordan and Daniels cross appeal. *fn1 Jordan and Daniels were the brother and sister of Lucille Jordan Damron, who died intestate on August 30, 1981, survived by neither children nor parents. At the time of her death, Lucille owned the disputed property. Harvey Damron, who claimed to be Lucille's husband at the time of her death, received letters of administration on Lucille's estate on November 12, 1981, and sold the 80 acres to Kinard on February 19, 1982. Jordan and Daniels brought several actions disputing Kinard's possession of the property and arguing that it belonged to them. These appeals are from a judgment in the last two actions filed, CV-86-125 and CV-88-69. The issues are: (1) whether the circuit court erred in holding unconstitutional a portion of Act No. 81-1170, Ala. Acts 1981, which amended the law of intestate succession and, on the basis of that holding, awarding the property to Jordan and Daniels; and (2) whether the claim of Jordan and Daniels that Harvey was not actually married to Lucille at the time of her death and therefore did not inherit the property was barred by earlier decisions of the circuit court and the probate court of Clarke County.

The first issue arises because Lucille's death occurred during a period of legislative change in the law of intestate succession. In the summer and fall of 1981, the legislature passed two amendments to Ala. Code 1975, §§ 43-3-1 and 43-3-10, *fn2 Act No. 81-967 and Act No. 81-1170. Section 43-3-1, before the amendments, stated the following, in pertinent part:

"The real estate of persons dying intestate, as to such estate descends, subject to the payment of debts, charges against the estate, and the widow's dower, as follows:

"(1) To the children of the intestate, or their descendants, in equal parts.

"(2) If there are no children or their descendants, then to the father and mother, in equal parts.

"[(3) and (4) applied when one parent survived the decedent.]

"(5) If there are no children or their descendants, and no father or mother, then to the brothers and sisters of the intestate, or their descendants, in equal parts.

"(6) If there are no children or their descendants, no father or mother, and no brothers or sisters or their descendants, then the whole to the husband or wife of the intestate...."

Ala. Code 1975, § 43-3-10, entitled "Distribution of personal estate," provided the following before the amendments:

"The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as his real estate, and according to the same rules; except that the widow, if there are no children, is entitled to all the personal estate, or, if but one child, she is entitled to one half; if more than one, and not more than four children, to a child's part; and if more than four children, to one fifth."

On August 20, 1981, at 9:30 a.m., ten days before Lucille's death, the following amendment to the above sections, Act No. 81-967, became effective:

" Section 1. Sections 43-3-1, as amended, and 43-3-10 of the Code of Alabama 1975, are amended to read as follows:

" § 43-3-1. The real estate of persons dying intestate, as to such estate descends, subject to the payment of debts and charges against the estate as follows:

"(1) Subject to the widow's dower, to the children of the intestate, or their descendants, in equal parts.

"(2) If there are no children or their descendants then the whole to the surviving spouse of the intestate.

"(3) If there are no children or their descendants, and no surviving spouse, then to the father and mother, in equal parts.

"[(4) and (5) applied when one parent survived the decedent.]

"(6) If there are no children or their descendants, no surviving spouse, and no father or mother, then to the brothers and sisters of the intestate, or their descendants, in equal parts ....

"....

" § 43-3-10. The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as real estate, and according to the same rules; if a spouse having a separate estate dies intestate, leaving a spouse living, the surviving spouse is entitled to one half of the personalty of such separate estate absolutely and to the use of the realty during his or her lifetime. "

(Emphasis added.) *fn3

On November 30, 1981, after Lucille's death, Act. No. 81-1170 became effective; it provided in pertinent part as follows:

" Section 1. Sections 43-3-1, as amended, and 43-3-10 of the Code of Alabama 1975, are amended to read as follows:

"[There were no significant changes to § 43-3-1 as it pertained to this case.]

" ยง 43-3-10. The personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner as real estate, and according to the same rules; except that in any event the surviving spouse is entitled to ...


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