Regina C. Norwood and Rita Patelliro
v.
Elise Barclay, as personal representative of the Estate of Josephine Mary Damico, deceased
Appeal
from Jefferson Probate Court (17BHM01647)
STEWART, JUSTICE.
Regina
C. Norwood and Rita Patelliro appeal from an order of the
Jefferson Probate Court. This appeal involves the interplay
between § 43-8-224, Ala. Code 1975 ("the antilapse
statute"), § 43-8-222, Ala. Code 1975, which
addresses testamentary intent, and § 43-8-44, Ala. Code
1975, which provides for the escheat of a testator's
estate to the State of Alabama.
Facts
and Procedural History
Josephine
Mary Damico ("the testator") executed a will on
June 16, 1993. In her will, the testator devised the entirety
of her estate to her sister, Sarah Frances Cox ("the
sister"). The testator expressly disinherited all of her
other heirs. On June 15, 2017, the testator died. Elise
Barclay filed in the probate court a petition for probate of
the will and a petition for letters testamentary. On July 10,
2017, the probate court granted the petitions and issued
letters testamentary to Barclay ("the personal
representative").
On July
21, 2017, Norwood and Patelliro, the testator's nieces
("the nieces"), filed a "motion for letters of
instruction" in which they asserted that the sister had
predeceased the testator, that they were the sister's two
surviving children, and that, as the sister's surviving
children, they were entitled to receive the testator's
estate in place of the sister pursuant to the antilapse
statute.[1] The nieces also asserted that the testator
had had other siblings who had predeceased her and that those
siblings all had surviving children ("the other nieces
and nephews"). The personal representative filed a
response in which she asserted that the testator's estate
should pass through intestacy as governed by § 43-8-40
et seq., Ala. Code 1975.
On
March 8, 2018, the probate court held a hearing. A transcript
from that hearing is not contained in the record on appeal,
but, based on the language of the probate court's orders,
it appears that only argument was received at the hearing. On
March 26, 2018, the nieces filed a brief in the probate court
in which they argued, among other things, that the antilapse
statute abrogated the common law and that the nieces were
entitled to the entirety of the testator's estate under
the antilapse statute. The personal representative filed a
response in which she asserted, among other things, that the
disinheritance language in the testator's will precluded
the operation of the antilapse statute.
On May
4, 2018, the probate court rendered a handwritten bench note
in which it "granted" the nieces' motion
seeking instruction regarding the terms of the will and set
forth its reasoning.[2] On June 18, 2018, the probate court
memorialized its bench note in an order, stating:
"It is, therefore, ORDERED, ADJUDGED AND DECREED by the
Court as follows:
"After due consideration of all of the above, it appears
to the Court that the testator's wishes are very clear in
the body of the Last Will and Testament. Thus, the Anti-Lapse
statute does not apply. The Probate Code (Code of Alabama)
states, in Section 43-8-222, that the intention expressed in
a testator's will controls the legal effects of
dispositions. The rules of construction set out in the Code
do not apply if 'a contrary intention is indicated by the
will.' In this case, the testator clearly states that she
disinherits all of her relatives except Sarah Frances Cox.
This Court will not rewrite the Testator's will by
applying the Anti-lapse statute when the testator clearly has
disinherited her nieces, contrary to the effects of the
Anti-lapse statute."
(Capitalization in original.)
On July
18, 2018, the nieces filed a motion seeking to alter, amend,
or vacate the June 18, 2018, order. On September 1, 2018, the
nieces and the personal representative filed a joint
agreement to extend the 90-day period to rule on the motion
to alter, amend, or vacate "until such time as the
probate judge conducts a hearing and rules on the post-trial
motion."[3] On September 5, 2018, the probate court
entered an order setting the motion to alter, amend, or
vacate for a hearing on November 8, 2018.
On
November 28, 2018, the probate court entered an order denying
the motion to alter, amend, or vacate, but modifying the last
sentence of the June 18, 2018, order to read: "This
Court will not rewrite the Testator's will by applying
the Anti-lapse statute when the testator clearly has
disinherited her nieces and nephews, contrary to ...