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PROBATE COURT DISQUALIFICATION OF EXECUTORS; ORE TENUS REVIEW - ENGEL V. AMONETT

Engel v. Amonett, [Ms. 1160113, June 23, 2017] __ So. 3d __ (Ala. 2017). The Court affirms an order of the Mobile Probate Court disqualifying co-executors and appointing the county administrator to administer an estate upon finding, following an ore tenus hearing, evidence supporting grounds for disqualification under § 43-2-22(a), Ala. Code 1975 ("intemperance, improvidence, or want of understanding").

The standard of review concerning the probate court's judgment following an ore tenus hearing is as follows:

"'Because the probate court's judgment is based, in part, upon testimony adduced at an ore tenus proceeding, we presume its judgment to be correct, and we will not reverse its judgment unless it is "palpably erroneous." Cox v. Logan, 262 Ala. 11, 13, 76 So. 2d 169, 171 (1954). A more recent statement of the "ore tenus" rule, as applicable in an appeal from a probate court's judgment, appears in Craig v. Perry, 565 So. 2d 171, 175 (Ala. 1990) (citations omitted):

" ' "[W]hen a court hears ore tenus evidence in a nonjury case, its ruling based on that evidence is presumed correct and will be overturned only if clearly erroneous or manifestly unjust. ... The presumption of correctness is especially applicable where ... the evidence was conflicting. The weight to be given the witnesses' testimony [is] for the trial judge, because he had the opportunity to view the witnesses and their demeanor." '

"Barron v. Scroggins, 910 So. 2d 780, 782-83 (Ala. Civ. App. 2005)."

Ms. *5-6 (quoting McGallagher v. Estate of DeGeer, 934 So. 2d 391, 401 (Ala. Civ. App. 2005)). The statutory grounds for disqualification to serve as an executor are explained this way:

" 'Improvidence means a lack of care and foresight, of forehandedness, of thrift, of business capacity. It does not mean, however, that the capacity for care and foresight must needs to be proved by the accumulation of any considerable estate, for men are largely creatures of time and chance. Improvidence in this connection means only that probable lack of care and foresight in the management of the estate's only asset which would endanger its safety in case administration should be committed to appellee.'

"Nichols v. Smith, 186 Ala. 587, 591–92, 65 So. 30, 31 (1914)."

Thames v. Thames, 183 So. 3d 168, 180 (Ala. Civ. App. 2015).

"Improvidence as here used has been defined as that probable lack of care and foresight in the management of the estate which would endanger its safety in case administration should be committed to the applicant. Nichols v. Smith, 186 Ala. [587,] 592, 65 So. 30 [(1914)]; 33 C.J.S., Executors and Administrators, p. 947, § 46, subsec. e; In re Ferguson's Will, 41 Misc. 465, 84 N.Y.S. 1102 [(N.Y. Sur. 1903)].

"The disqualifying term means more than the lack of capacity to accumulate a considerable estate (Nichols v. Smith, supra, 186 Ala. at page 591, 65 So. 30) ....

"A much quoted New York decision observed that improvidence, as termed in the statute, 'refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question.' In Matter of Flood's Will, 236 N.Y. 408, 411, 140 N.E. 936, 937 [(N.Y. 1923)], quoting Emerson v. Bowers, 14 N.Y. 449 [(N.Y. 1856)]. See also In re Schwartz' Estate, 138 Misc. 537, 246 N.Y.S. 478, 480 [(N.Y. Sur. 1930)]."

Griffin v. Irwin, 246 Ala. 631, 635, 21 So. 2d 668, 671 (1945).

" 'Improvidence' is thus defined in 42 C.J.S., p. 472:

" 'In general, a lack of business capacity, care and foresight, forehandedness, prudence, or thrift; and, more specifically, a want of care and foresight in the management of property. The term refers to habits of mind and conduct which become a part of the man and render him generally and under all ordinary circumstances unfit for the trust or employment in question; but does not necessarily imply a failure to accumulate any considerable estate.'

"Webster's New International Dictionary, 2d Ed., defines 'improvidence' as 'want of foresight or thrift.' "

Ms. *22-24 (quoting Smith v. Rice, 265 Ala. 236, 248, 90 So. 2d 262, 273 (1956)). Because the Mobile Probate Court heard oral testimony and rendered a judgment based on findings of fact from that testimony, the judgment is presumed correct and will not be disturbed on appeal except for plain and palpable error. Ms. *26-27 (citing Kennedy v. Boles Invs., Inc., 53 So. 3d 60 (Ala. 2010)). Because there was evidence supporting the probate court's judgment, the judgment was due to be affirmed.

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