Released for Publication June 6, 2014.
Appeal from DeKalb Circuit Court. (CV-08-900162), David A. Rains, Trial Judge.
THOMAS, Judge. Pittman, Bryan, and Moore, JJ., concur. Thompson, P.J., concurs in the result, without writing.
On Application for Rehearing
The opinion of May 18, 2012, is withdrawn, and the following is substituted therefor.
Paul Wooten is married to Joyce Wooten. Joyce is the daughter of J.G. Horton, who died in 1992. Joyce was executrix of Horton's estate until she began suffering the effects of Alzheimer's disease. On March 2, 2004, the probate court appointed Paul as successor executor of Horton's estate. Paul, in his capacity as executor of Horton's estate, executed two executor's deeds disposing of property owned by the estate (" the Horton estate property" ) on March 2, 2004. The first deed conveyed to Joyce in fee simple 166.8 acres (" the home place" ) that had been owned by Horton and that had purportedly been bequeathed to Joyce in Horton's will. The second of the executor's deeds conveyed to Joyce a life estate in another parcel of property; the remainder was conveyed to Horton's surviving grandchildren, Beverly Morton, June Butler, Peggy Moses, John Horton, and Joy Oliver (referred to collectively as " the grandchildren" ). On March 3, 2004, the probate court discharged Paul as executor and approved the final settlement of Horton's estate.
Meanwhile, Paul, on March 2, 2004, acting under a purported power of attorney for Joyce, conveyed the home place to his brother and sister-in-law, McCoy and Linda Wooten. Paul later conveyed the mineral rights in the home place to the Wootens. Paul was made Joyce's conservator in January 2008; however, the probate court limited Paul's rights as conservator, stating that Paul " shall not convey, transfer, mortgage, lease, or otherwise encumber any real estate owned by Joyce." Although Paul successfully petitioned the probate court to reopen Horton's estate and to be reappointed as executor in December 2008, the grandchildren succeeded in having that order vacated in January 2009.
In December 2008, Paul sued the grandchildren in the DeKalb Circuit Court (" the trial court" ). In the caption of the complaint and in the body of the complaint, Paul described himself as suing individually, as the personal representative of Horton's estate, and as the conservator of Joyce's estate. The Wootens were also plaintiffs in the suit. Paul and the Wootens sought a judgment declaring the rights of the various parties under Horton's will, the rights of Joyce and the
Wootens under the deeds executed by Paul, and the rights of the grandchildren under the executor's deed conveying to them the remainder interest in the parcel in which Joyce held a life estate.
The parties agreed to waive a trial on the issues and instead submitted the case to the trial court on affidavits and pleadings. The trial court entered an order in July 2010, declaring that the executor's deeds must be corrected to align with the will (most notably, to reduce the home place by 30 acres) and declaring that the deeds to the Wootens were null and void. The July 2010 order reserved jurisdiction over the attorney-fee request made by the grandchildren.
The probate court removed Paul as Joyce's conservator in April 2010. In August 2010, Pat Tate, Joyce's successor conservator, filed a Rule 59, Ala. R. Civ. P., motion seeking to vacate the July 2010 order. The trial court denied that motion, stating that no motion to substitute Tate as a party had been made pursuant to ...