from Colbert Circuit Court (CV-14-000038)
plaintiff below, Charlotte Harbin, appeals from the Colbert
Circuit Court's judgment in favor of the defendants
below, Glenn E. Estess, Jr., as personal representative of
the estate of Lecil V. Thomas; Richard Thomas; and Roger
Thomas (hereinafter collectively referred to as "the
and Procedural History
and Tommie Thomas were married and had three children, one of
whom predeceased them. They had two surviving sons -- Richard
Thomas and Roger Thomas (hereinafter collectively referred to
as "Lecil's sons"). Lecil executed a will on
November 30, 1995, and executed a codicil to that will on
December 3, 2003. Tommie died on February 10, 2005. Lecil
executed a second codicil to his will on February 13, 2008.
to Harbin, she and Lecil started dating after Tommie's
death. She also asserted that they lived together off and on
until September 2009, when, she says, they started living
together as husband and wife.
died on April 28, 2013. On May 30, 2013, Estess filed a
petition for probate of Lecil's will in the Colbert
County Probate Court. The petition listed Harbin as
Lecil's "putative common-law wife." On May 30,
2013, the probate court admitted the will to probate and
granted Estess letters testamentary.
14, 2014, Harbin filed a petition in the probate court
seeking an omitted spouse's share of Lecil's estate
pursuant to § 43-8-90, Ala. Code 1975. In her petition,
Harbin asserted that she was Lecil's common-law wife at
the time of his death and that she had become Lecil's
common-law wife after he had executed the will that had been
admitted to probate. On July 3, 2014, Estess filed an objection
to Harbin's petition. Harbin filed her response to that
objection on July 7, 2014. Estess filed a petition for
removal, and the administration of the estate was removed to
the Colbert Circuit Court on October 7, 2014.
April 30, 2015, Estess filed a renewed objection to
Harbin's petition seeking a share as an omitted spouse,
arguing that the circuit court did not have jurisdiction to
consider her petition. Specifically, Estess asserted that,
pursuant to § 43-2-350, Ala. Code 1975, Harbin was
required to file her petition within six months after letters
testamentary were granted; that Harbin did not file her
petition within that six-month period; and that her petition
thus was barred. Estess also asserted that Harbin could not
establish that she was Lecil's common-law wife.
5, 2015, Harbin filed a response. She asserted that, because
§ 43-8-90 does not include a time-bar, the circuit court
had jurisdiction over her petition. She also asserted that
"43-2-350(b), Ala. Code 1975, reaffirms [Harbin's]
position by stating, 'The provisions of this subsection
do not apply to heirs or devisees claiming as heirs or
devisees.'" Harbin further asserted that she
submitted clear and convincing evidence that would support a
finding that a common-law marriage existed between her and
15, 2015, Estess filed a motion to dismiss or, in the
alternative, for a summary judgment. Estess attached to the
motion his affidavit and various supporting documents. On
June 15, 2015, Harbin filed her response to Estess's
motion. Harbin attached to her response her affidavit and
several supporting documents.
November 1, 2015, Lecil's sons filed a motion to
intervene as defendants. They also filed a proposed answer
and a proposed counterclaim seeking a judgment declaring that
Harbin was not Lecil's common-law wife at the time of his
death on April 28, 2013; that Harbin thus was not an omitted
spouse; and that Harbin was not entitled to a share of
Lecil's estate. On April 4, 2016, the circuit court
granted the motion to intervene and deemed the answer and
counterclaim as filed as of that date. Harbin subsequently
filed an answer to Lecil's sons' counterclaim.
October 25, 2017, apparently following a hearing,
circuit court entered the following order:
"Lecil V. Thomas ('Mr. Thomas') died on April
28, 2013. On May 30, 2013, the Probate Court admitted Mr.
Thomas's Last Will and Testament to probate and granted
Letters Testamentary to Glenn E. Estess, Jr. ('Mr.
Estess'). Ms. Harbin is a beneficiary of Mr. Thomas's
"As a beneficiary, Ms. Harbin was entitled to, and
received notice of, the will's admission to Probate
Court. Additionally, notice to 'all persons having claims
against [Mr. Thomas's estate]' was published in the
Colbert County Reporter Standard and Times informing
potential claimants that they were required to file itemized
and verified statements of claims in the office of the Judge
of Probate by November 30, 2013 'or said claim will be
barred and payment prohibited.' It is undisputed that Ms.
Harbin communicated with Mr. Estess before the will was
admitted to probate regarding a potential claim she had
against Mr. Thomas's Estate. Ms. Harbin suggested 'if
the estate [honored a $1, 000[, 000].00 check written
during Mr. Thomas's lifetime], I will make no further
claim against it.' It is also undisputed that Mr. Estess
told Ms. Harbin that he could not honor the check. The matter
was never discussed again, and Ms. Harbin did not file a
claim by November 30, 2013.
"Over a year after Mr. Thomas's death, and almost
six months after the claim period closed, Ms. Harbin filed a
petition in the Probate Court's administration of Mr.
Thomas's estate. The petition asks the Probate Court to
declare that Ms. Harbin was the common-law spouse of Mr.
Thomas, was omitted from Mr. Thomas's will, and as
'an omitted spouse of the decedent ... [is] therefore
entitled to her intestate share.' Mr. Estess moved to
dismiss Ms. Harbin's petition arguing that the Court
lacked jurisdiction to hear Ms. Harbin's petition because
it was filed more than six months after the will was admitted
to probate. Ms. Harbin objected, alleging that her petition
is the claim of an heir and therefore is not barred by §
"Ms. Harbin filed her petition in the Probate Court as
part of the probate administration of the Estate of Lecil V.
Thomas. Regardless of how it is titled, Ms. Harbin's
'Petition' is legal assertion that she is Mr.
Thomas's common-law spouse and her petition asks the
Court to recognize her as such. The effect of such a
recognition would necessarily impact the speedy, safe, and
settlement [sic] of Mr. Thomas's estate, which is the
very purpose of § 43-2-350. Moody v. Battle,
368 So.2d 20 (Ala. 1979). There is only one way to invoke the
Court's jurisdiction to make such a declaration within
the confines of an estate administration, and that is under
§ 43-2-350. And, until it is determined that Ms. Harbin
is a common-law spouse, she is not an heir excepted from the
requirements of § 43-2-350.
"Having read all of the submissions and heard oral
arguments on the motion to dismiss, the Court finds:
"(1) That Ms. Harbin's petition constitutes a claim
against the Estate of Lecil V. Thomas;
"(2) That the claim was filed after November 30, 2013;
"(3) Is therefore barred by § 43-2-350." This
the circuit court indicated that it considered matters
outside the pleadings, Estess's motion to dismiss was
more properly treated as a motion for a summary judgment.
See Lloyd Noland Found., Inc. v. HealthSouth
Corp., 979 So.2d 784 (Ala. 2007).
"In Bruce v. Cole, 854 So.2d 47, 54 (Ala.
2003), this Court stated:
"'Summary judgment is appropriate only when
"there is no genuine issue as to any material fact and
... the moving party is entitled to a judgment as a matter of
law." Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v.
Shelby County Econ. & Indus. Dev. Auth., 749 So.2d
425 (Ala. 1999). The court must accept the tendencies of the
evidence most favorable to the nonmoving party and must
resolve all reasonable doubts in favor of the nonmoving
party. System Dynamics Int'l, Inc. v. Boykin,
683 So.2d 419 (Ala. 1996). "[W]here the evidence is
in conflict, the issue must [be tried to the
fact-finder]." Kitchens v. Winn-Dixie
Montgomery, Inc., 456 So.2d 45, 47 (Ala. 1984). In
reviewing a summary judgment, an appellate court, de
novo, applies the same standard as the trial court.
Blackmon v. Brazil, 895 So.2d 900, 904 (Ala. 2004).
argues that the circuit court erroneously found that her
claim was barred by § 43-2-350, Ala. Code 1975, ...