Mary Elizabeth Thames et al.
JaNell Searcy Thames
[Copyrighted Material Omitted]
from Montgomery Probate Court. (PR-14-186).
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
THOMPSON, Presiding Judge.
March 25, 2014, JaNell Searcy Thames (" JaNell" )
filed a petition in the Montgomery Probate Court (" the
probate court" ) seeking to probate the will of her late
husband, David Whetstone Thames (" the decedent"
). Regions Bank, the named executor of
the decedent's will, declined to serve as executor. In
her petition, JaNell sought to be appointed the personal
representative of the decedent's estate (" the
April 2014, Mary Elizabeth Thames (" Mary
Elizabeth" ), Clinton Moye Thames (" Clinton"
), and David W. Thames, Jr. (" David" ), the
decedent's children from a previous marriage (hereinafter
referred to collectively as " the children" ) filed
a petition seeking to appoint David as personal
representative of the estate and asking the probate court to
deny JaNell's request that she be appointed in that
capacity. The probate court scheduled a hearing
for June 26, 2014. The record indicates that David was unable
to obtain a bond as security for his serving as personal
representative. On June 3, 2014, the children jointly
petitioned for Mary Elizabeth's appointment as personal
representative of the estate.
probate court conducted the scheduled hearing on the pending
petitions. It also allowed the parties to submit post-hearing
briefs in support of their positions. On July 22, 2014, the
probate court entered a judgment admitting the decedent's
will to probate and appointing JaNell as the personal
representative of the estate. On July 29, 2014, the probate
court entered an order amending the July 22, 2014, judgment
pursuant to Rule 60(a), Ala. R. Civ. P. The children filed a
timely postjudgment motion, which the probate court denied.
The children timely appealed, raising a number of issues.
we note that the children have jointly filed a brief on
appeal. Several of the arguments set forth in that brief
challenge the probate court's determination that Mary
Elizabeth was not a resident of Alabama. None of the parties
have favored this court with any argument concerning the
standing of all the children to assert arguments that pertain
to rulings concerning Mary Elizabeth's claims before the
probate court. We have first addressed the issues properly
raised by Mary Elizabeth alone, followed by those raised by
all the children.
Elizabeth first argues that the probate court erred in
determining that she was a not a resident of Alabama. The
probate court rejected Mary Elizabeth's request that she
be appointed personal representative of the estate, finding
that she had failed to demonstrate that she is a resident of
Alabama. One must be a resident of Alabama in order to serve
as an administrator of an estate here;  § 43-2-22, Ala.
Code 1975, provides, in part:
" (a) No person must be deemed a fit person to serve as
executor who is under the age of 19 years, or who has been
convicted of an infamous crime, or who, from intemperance,
improvidence or want of understanding, is incompetent to
discharge the duties of the trust. Nor shall any nonresident
of the state be appointed as administrator unless he is at
the time executor or administrator of the same estate in some
other state or territory or jurisdiction, duly qualified
under the laws of that jurisdiction."
(Emphasis added.) But see § 43-2-191, Ala. Code 1975,
and Ex parte Adams, [Ms. 1130986, Nov. 26, 2014] __ So.3d __,
__, Id. at*13 (Ala. 2014) (holding that an executor
named in a will is not " subject to the nonresident
restriction set forth in § 43-2-22" ).
3, 2014, the same day on which the children jointly filed
their petition seeking the appointment of Mary Elizabeth as
personal representative of the estate, Mary Elizabeth
executed and filed in the probate court a notarized statement
declaring that, " pursuant to [§ 12-13-23, Ala.
Code 1975,] she declares that her place of residence is [an
address in Montgomery]." Mary Elizabeth first argues
before this court that, for the purposes of § 43-2-22,
her June 3, 2014, declaration was sufficient, in and of
itself, to establish her status as an Alabama resident.
Section 12-13-23(b), Ala. Code 1975, provides:
" (b) Any person who is absent from this state on
military duty, eleemosynary journey, mission assignment, or
other similar venture may designate any place within the
State of Alabama as his or her residence. Upon filing a
notarized declaration of residence with the judge of probate
of the county in which the designated place of residence is
located, the person and his or her dependent children shall
thereafter be considered residents of that designated place
for all purposes under the law."
Elizabeth focuses on the second sentence of §
12-13-23(b), contending that because she executed a
declaration pursuant to that Code section, she must be
considered an Alabama resident. She cites In re
Incorporation of Caritas Village v. Fuhrmeister, 152
So.3d 1238, 1245 (Ala. 2014), as support for her argument
that our supreme court has stated that a declaration made
pursuant to § 12-13-23(b) makes one a resident "
for all purposes under the law." However, the sentence
in which that statement is made in In re Incorporation of
Caritas Village, supra, contains a qualifier: " We note
that although § 12--13--23(b) provides that a declarant
is considered a resident of the place designated in the
declaration for all purposes under the law, the statute goes
on to provide that the declaration" does not entitle the
declarant to be considered a resident under several aspects
of the law. In re Incorporation of Caritas Village,
152 So.3d at 1245 (emphasis added). In that case, the
petitioners wanted to incorporate a village, and they
submitted multiple declarations executed under §
12-13-23(b). Our supreme court held, among other things, that
those multiple § 12-13-23(b) declarations did not
operate to demonstrate that a sufficient number of residents
of the village met the requirements for incorporation of the
arguing that her § 12-13-23(b) declaration establishes
her as an Alabama resident, Mary Elizabeth also cites a case
from our supreme court as authority for the proposition that
§ 12-13-23(b) must be interpreted according to its clear
" '" The fundamental rule of statutory
construction is to ascertain and give effect to the intent of
the legislature in
enacting the statute. Words used in a statute must be given
their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to
interpret that language to mean exactly what it says. If the
language of the statute is unambiguous, then there is no room
for judicial construction and the clearly expressed intent of
the legislature must be given effect." '"
Austin v. Alabama Check Cashers Ass'n, 936 So.2d
1014, 1026 (Ala. 2005) (quoting Ex parte Master Boat
Builders, Inc., 779 So.2d 192, 196 (Ala. 2000), quoting
in turn IMED Corp. v. Systems Eng'g Assocs.
Corp., 602 So.2d 344, 346 (Ala. 1992)).
language of § 12-13-23(b) clearly states that a person
" who is absent from this state on military duty,
eleemosynary journey, mission assignment, or other similar
venture may designate any place within the State of Alabama
as his or her residence." (Emphasis added.) Such a
declaration made pursuant to that Code section operates to
establish the " person who is absent from this
state" as a resident. § 12-13-23(b). "
Absence" is " [t]he quality, state, or condition of
being away from one's usual place of residence."
Black's Law Dictionary 8 (10th ed. 2014). Thus, the clear
language of § 12-13-23(b) demonstrates that a
declaration made pursuant to that Code section is for the
purpose of establishing the location of a person's usual
place of residence if that person is absent from Alabama for
military, charitable, religious, or other, similar reasons.
The legislature's express statement of its legislative
purpose in enacting § 12-13-23 supports that conclusion.
As the title to the act that has been codified as §
12-13-23 reflects, the purpose of § 12-13-23 is
" [t]o authorize persons absent from the state on
military duty, mission assignment, or other similar purposes
to designate a place of residence in this state; and to
specify that the designation would not be effective for the
purpose of voter registration or qualification for elected
2012-408, Ala. Acts 2012, p. 1112. See also In re
Incorporation of Caritas Village, 152 So.3d at 1245
(" One of the purposes of this statute is to allow
military personnel and missionaries who are on extended
travels out of state to declare residency in Alabama."
Elizabeth has not alleged or presented evidence indicating
that she is " absent" from Alabama, i.e., that she
is away from Alabama, which is her usual place of residence.
Also, she has not alleged or presented evidence indicating
that she had been absent for any purpose set forth under
§ 12-13-23(b), i.e., that she was temporarily living
outside Alabama for military, charitable, religious, or
similar reasons. Rather, the evidence indicates that Mary
Elizabeth has lived and worked, as either an attorney or an
accountant, in Atlanta, Georgia, for more than 20
years. Given the clear language of §
12-13-23(b), the legislative statement of intent regarding
§ 12-13-23, and the evidence in the record, we conclude
that Mary Elizabeth has failed to demonstrate ...