Norwood v. Barclay

          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 ...