(251) 299-0101

SECTION 43-2-290, ALA. CODE 1975, REMOVAL OF PERSONAL REPRESENTATIVE - WYLIE V. ESTATE OF COCKRELL

Wylie v. Estate of Cockrell, [Ms. 1141405, Sept. 30, 2016] __ So.3d __ (Ala. 2016). The Court affirms the Montgomery Circuit Court's affirmance of the Montgomery Probate Court's decision to remove a personal representative of an estate for reasons set forth in § 43-2-290(2), (3), and (4), Ala. Code 1975.

The Court first notes the standard of review by which the circuit court was to abide in reviewing the initial determination of the probate court:

II. Standard of Review

As this Court recently stated in Hardy ex rel. Estate of Carter v. Hardin, [Ms. 1130612, Jan. 22, 2016] __ So.3d __ (Ala. 2016):

"The circuit court was sitting as an appellate court in this case and was bound by the ore tenus rule. The ore tenus rule required the circuit court to defer to the probate court's factual determinations where evidence supported those determinations. Specifically, where evidence is presented ore tenus, the findings of the trial court are presumed correct 'and will not be disturbed on appeal absent a showing of plain and palpable error.' Pilalas v. Baldwin Cnty. Sav. & Loan Ass'n, 549 So.2d 92, 95 (Ala. 1989); see also Williams v. Thornton, 274 Ala. 143, 144, 145 So.2d 828, 829 (1962) ('The finding of the Probate Court based on the examination of witnesses ore tenus is presumed to be correct, and will not be disturbed by this court or the Circuit Court unless palpably erroneous.').

"As this Court stated in Yeager v. Lucy, 998 So.2d 460 (Ala. 2008):

" ' " ' The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to 'disputed issues of fact,' whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995)." '

"998 So.2d at 463 (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000)); see also, e.g., Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ. App. 1994) ('[I]n determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness's apparent candor or evasiveness . . . . It is not the province of this court to override the trial court's observations.'). 'Under the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness.' Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala. 1992). However, '[t]he ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.' Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005)."

__So.3d at __; see also Womack v. Estate of Womack, 826 So.2d 138 (Ala. 2002).

Ms. *12-13. The Court then stated its own standard of review on appeal:

"This Court ' "review[s] the trial court's conclusions of law and its application of law to the facts under the de novo standard of review." ' " Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala. 2010) (quoting Ex parte J.E., 1 So.3d 1002, 1008 (Ala. 2008), quoting in turn Washington v. State, 922 So.2d 145, 158 (Ala. Crim. App. 2005)).

Ms. *13. Upon review of the transcript of the hearings before the probate court, the Supreme Court found ample statutory bases for the circuit court's affirmance of the probate court's determination that Wylie should be removed as personal representative, including her treatment of the decedent's share of assets and income of an LLC after his death as her own not subject to a distributive share to devisees set forth in a will. Accordingly, the Montgomery Circuit Court's judgment is due to be affirmed.

Collaterally, the Court found insufficient supporting evidence of the probate court's award pursuant to Rule 17(d), Ala. R. Civ. P., of an $18,000 guardian ad litem fee taxed against the personal representative. On authority of Van Schaack v. AmSouth Bank N.A., 530 So.2d 740 (Ala. 1998), and Whele v. Bradley, [Ms. 1101290, Oct. 30, 2015] __ So.3d __ (Ala. 2015) (Ms. *25-29), the Court remands the cause for the Montgomery Circuit Court to ascertain whether sufficient evidence supported taxation of a guardian ad litem fee in that amount.

Related Documents: Wylie v Estate of Cockrell

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