Ex parte Raymond Adams, as coexecutor of the estate of Clifford Wayne Cleveland

Rel: 11/26/14

Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________

1130986
____________________

Ex parte Raymond Adams, as coexecutor of the estate of
Clifford Wayne Cleveland, deceased

PETITION FOR WRIT OF MANDAMUS

(In re: Clifford Wayne Cleveland II and Celeste Cleveland
Minor

v.

Raymond Adams, as coexecutor of the estate of Clifford Wayne
Cleveland, deceased)

(Autauga Circuit Court, CV-14-30)

BRYAN, Justice.

Raymond Adams has petitioned this Court for the writ of

mandamus directing the Autauga Circuit Court (1) to remove
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Clifford Wayne Cleveland II ("Chip" or "Chip Cleveland") as

coexecutor of the estate of Clifford Wayne Cleveland ("the

estate"), (2) to vacate its order prohibiting the estate from

hiring an attorney or a certified public accountant ("CPA"),

(3) to compel Chip and his sister, Celeste Cleveland Minor, to

produce property and assets of the estate that are in their

possession, and (4) to impose sanctions on Chip and Minor.

For the reasons set forth below, we deny the petition.

Facts and Procedural History

Clifford Wayne Cleveland died on March 28, 2014. In his

will, Cleveland named his law partner Louis C. Colley and

business partner Adams as coexecutors of the estate. Colley

and Adams petitioned the Autauga Probate Court to probate the

estate and were granted letters testamentary. On April 30,

2014, the Autauga Circuit Court granted Chip and Minor's

motion, as beneficiaries under Cleveland's will, to have the

probate of the estate removed to that court.

On May 5, 2014, Chip and Minor moved the circuit court to

disqualify Adams as a coexecutor of the estate, arguing as a

basis for disqualification that Adams does not reside in

Alabama. The circuit court set the motion for a hearing on

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May 27, 2014, and gave Adams "ten days to provide proof of his

residency." Petition, at Exhibit 5. On May 9, 2014, Chip and

Minor moved the circuit court to prohibit Adams from retaining

any third-party professionals, such as attorneys or CPAs, to

assist with the administration of the estate, arguing that it

was an unnecessary expense. The circuit court entered an

order on that date, granting the motion and prohibiting any

coexecutor or beneficiary from hiring such professional help

"until further order" of the circuit court. The circuit court

also set the issue for further discussion at the May 27

hearing.

On May 16, 2014, Adams filed with the circuit court a

statement of residency, acknowledging that "he currently

resides in North Carolina" but arguing that,

"[c]ontrary to the Motion to Disqualify Co-Executor
filed by [Chip and Minor], out-of-state residency
does not preclude [the] service of an executor
appointed by Will. Rather, Ala. Code § 43-2-22 only
imposes an in-state residency requirement upon
administrators of intestate estates."

Petition, at Exhibit 13. Also on May 16 Colley resigned as

coexecutor of the estate, stating that he did not have time to

fulfill his duties as coexecutor and noting that "[he] ha[d]

been informed by Chip Cleveland, son of [Cleveland], that

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[Chip] is willing to assume the role of [c]o-[e]xecutor."

Petition, at Exhibit 10. That same day, Chip moved the

circuit court to substitute him in Colley's place as

coexecutor or, in the alternative, to appoint him as a

coexecutor of the estate. The circuit court granted that

motion and appointed Chip coexecutor on May 19, 2014.

Adams objected to the substitution of Chip as coexecutor,

arguing:

"Neither the [w]ill nor Alabama law provides any
basis for the substitution of an unnamed co-executor
in the place of a co-executor who resigns his
appointment. Rather, as a matter of law, the sole
remaining co-executor is vested with full authority
to act on behalf of the estate. A court may only
appoint a substitute personal representative when
all of the designated co-executors are unable to
serve."

Petition, at Exhibit 16. The circuit court "noted" Adams's

objection but took no further action with regard to Chip's

appointment.

On May 23, 2014, Adams moved the circuit court to compel

Chip and Minor "to produce all materials within their

possession concerning the assets and liabilities of the

[e]state," petition, at Exhibit 19; to remove Chip as

coexecutor; and to impose sanctions against Chip and Minor.

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With regard to the latter, Adams argued that Chip and Minor

had "obtain[ed] the appointment [of Chip as coexecutor]

through misrepresentations of law and fact." Petition, at

Exhibit 20.

On May 26, 2014, Chip and Minor supplemented their motion

to disqualify Adams, adding an argument that Adams had not

timely administered the estate. A hearing was held on May 27,

and on May 28 Adams submitted a response to the supplemental

motion to disqualify him as coexecutor. On May 29, 2014, Chip

and Minor moved the circuit court to compel Adams to produce

certain documents related to the administration of the estate.

That same day Adams moved the circuit court to require Chip to

post bond as a coexecutor. The parties filed responses to

those respective motions. On June 5, 2014, Adams supplemented

his motion to require Chip to post a bond. It appears that

there has been no ruling on those motions.

On June 6, 2014, Adams petitioned this Court for mandamus

relief from the circuit court's May 9 order prohibiting Adams

from hiring attorneys or other professionals to assist with

the administration of the estate and from the May 19 order

appointing Chip as coexecutor of the estate. Adams also asks

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this Court to instruct the circuit court to "direct [Chip and

Minor] to produce all materials within their possession that

would reflect upon the assets and liabilities of the

[e]state," petition, at 5, and "to enter sanctions against

[Chip and Minor] for the amount of attorneys' fees and costs

determined to have been the result of the ... improper

attempts to usurp control over the [e]state from Adams and/or

Adams' administration of the [e]state." Petition, at 22.

Adams also moved this Court for an emergency stay of the order

appointing Chip as a coexecutor of estate.

On June 13, 2014, Chip moved for sanctions against Adams,

arguing that Adams had presented "willful and gross falsehoods

set forth in documents before [the circuit court]," including,

among others, that Chip and Minor had pressured Colley to

resign as coexecutor. On June 20, 2014, this Court issued a

stay of the order appointing Chip coexecutor and of "all

proceedings in the case generally ... pending further order of

this Court" and ordered answer and briefs to be filed as to

Adams's petition for mandamus relief.

Discussion

"It is well settled that a writ of mandamus will
issue where the petitioner demonstrates '"(1) a

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clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court."'"

Toler v. Murray, 886 So. 2d 76, 78 (Ala. 2004) (quoting Ex

parte Fontaine Trailer Co., 854 So. 2d 71, 76 (Ala. 2003),

quoting in turn Ex parte State ex rel. C.M., 828 So. 2d 291,

293 (Ala. 2002)).

Adams first argues that "[he] has a clear legal right to

have Chip Cleveland removed as co-executor of the estate."

Petition, at 6. Adams argues that the circuit court erred in

granting Chip and Minor's motion to substitute Chip as

coexecutor of the estate in place of Colley because, Adams

argues, "there simply was no legal or factual basis to support

the appointment of Chip in that capacity." Id. Adams argues

that the will named Colley and Adams as coexecutors of the

estate and did not provide for substitution or for the

appointment of a successor coexecutor. Adams notes that,

pursuant to § 43-2-847, Ala. Code 1975, following Colley's

resignation Adams has full authority to administer the estate.

Section 43-2-847 provides: "Unless the terms of the will

otherwise provide, every power exercisable by personal co-

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representatives may be exercised by the one or more remaining

after the appointment of one or more is terminated ...."1

Adams also argues that under Alabama's statutory scheme

"there is no recognized position of 'substitute executor.'

Rather, when none of the originally named executors remain[s]

to serve, a court must issue 'letters of administration with

the will annexed.' Authority thus would be vested in an

'administrator' rather than an 'executor.'" Petition, at 9

n.1. Adams cites §§ 43-2-27 and 43-2-272, Ala. Code 1975, in

support of this argument. Section 43-2-27 provides, in

pertinent part:

"If no person is named in the will as executor,
or if named executors, one or more, all renounce or
fail to apply within 30 days after probate or are
unfit persons to serve, the residuary legatee, or if
he fails to apply within such time, refuses to
accept or is unfit to serve, then the principal
legatee, is entitled to letters of administration,
with the will annexed ...."

(Emphasis added.) Section 43-2-272(a), Ala. Code 1975,

provides: "If the sole executor or all the executors die,

resign or are removed, the probate court having jurisdiction

of the estate must grant letters of administration, with will

1
An executor is included in the definition of "personal
representative" set forth in § 43-2-691, Ala. Code 1975.
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annexed, to the person entitled thereto under section 43-2-

27." (Emphasis added.)

Chip and Minor responded by arguing that the circuit

court acted within its discretion in appointing Chip as

coexecutor in place of Colley. They cite Jones v. McGuirt,

416 So. 2d 970 (Ala. 1985), for the proposition that "this

Court has approved the appointment of successive executors

where a prior executor was either unavailable or unfit to

serve." Chip and Minor's brief, at 6. However, Jones

involved the removal of the sole executor named in the will,

not the resignation or removal of a coexecutor. Moreover,

this Court in Jones did not "approv[e] the appointment of

successor executors"; it instead affirmed orders entered by

the circuit court removing Jones as an executor and as a

trustee of Glenn W. Anthony's estate and appointing a

successor trustee. See Jones, 416 So. 2d at 971. Our

decision in Jones does not indicate that a successive executor

was appointed for Anthony's estate. Thus, Chip and Minor's

reliance on Jones is misplaced.

Chip and Minor also argue that "where a court makes an

appointment of an executor or an administrator of an estate,

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such is prima facie evidence that there was a vacancy." Chip

and Minor's brief, at 6 (citing Sims v. Waters, 65 Ala. 442,

443 (Ala. 1880), and Morgan v. Casey, 73 Ala. 222, 225 (Ala.

1882)). However, Sims and Morgan address the appointment of

administrators de bonis non2 where the administration of an

intestate estate had been left vacant. Those cases do not

address whether a substitution can be made if one coexecutor

among others named in a will resigns, nor do they provide for

the appointment of a successor executor even if all named

executors are removed. Thus, those cases do not support the

circuit court's decision to appoint Chip to serve in Colley's

place as coexecutor of the estate.

Chip and Minor also cite Smith v. Alexander, 148 Ala.

554, 42 So. 29 (1906), for the proposition that "an

appointment of an executor will be upheld unless it plainly

appears the appointing court had no jurisdiction." Chip and

Minor's brief, at 7. Again, however, Chip and Minor's

reliance on Smith is misplaced. Smith involved the

appointment of an administrator de bonis non, not the

2
An "administrator de bonis non" is "[a]n administrator
appointed by the court to settle the remainder of an intestate
estate not settled by an earlier administrator or executor."
Black's Law Dictionary 54 (10th ed. 2014).
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substitution of a coexecutor. Moreover, the question in Smith

was whether the jurisdiction of the probate court had been

properly invoked with regard to the removal of an

administrator and the appointment of an administrator de bonis

non in his place. Neither party in this case has challenged

the jurisdiction of the circuit court. Thus, Smith does not

justify the circuit court's appointment of Chip as coexecutor,

and Chip and Minor have cited no relevant authority to support

their argument that the appointment of an executor must be

upheld unless the appointing court lacked jurisdiction.

Chip and Minor also argue:

"[The circuit court] had the discretion to interpret
[Cleveland's] Will. It is well settled that the
touchstone of the construction of a will is to find
the testator's intention, which is accomplished by
considering all the provisions therein. Lowrey v.
McNeel, 773 So. 2d 449, 453 (Ala. 2000). In naming
[c]o-[e]xecutors within [Cleveland's] will,
[Cleveland] selected his long time law partner,
Louis C. Colley, and his business partner, Raymond
Adams.

"[Cleveland] therefore nominated and appointed
one local in-state citizen, Louis C. Colley, to
coordinate efforts with the out of state resident,
Raymond Adams, in the administration of the Estate.
It seems [Cleveland's] intention was to have a local
resident attorney, familiar with the Estate's local
presence, to carry out the duties of management."

Chip and Minor's brief, at 7-8.

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However,

"'"[t]o determine the intent of a testator
or testatrix, the court must look to the
four corners of the instrument, and if the
language is unambiguous and clearly
expresses the testator's or testatrix's
intent, then that language must govern."
Born v. Clark, 662 So. 2d 669, 671 (Ala.
1995).'"

Beasley v. Wells, 55 So. 3d 1179, 1184-85 (Ala. 2010) (quoting

Cottingham v. McKee, 821 So. 2d 169, 171-72 (Ala. 2001)).

Neither side argues that Cleveland's will is ambiguous, and

none of the provisions of that will indicates that Cleveland's

reason for nominating Colley as coexecutor was to ensure that

a local attorney would assist with the management of his

estate. Moreover, Cleveland's will does not provide for the

substitution or appointment of a successor to the named

coexecutors. Thus, "look[ing] to the four corners of the

instrument," i.e., the will, we cannot say that Chip's

appointment as coexecutor is consistent with the testator's

intent or that the circuit court's appointment of Chip is

justified on that basis.

Chip and Minor also argue:

"The [circuit] court had reason to appoint Chip
Cleveland as a local resident substitute [c]o-
[e]xecutor, as Raymond Adams' own status as a

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qualified [c]o-[e]xecutor remained in question under
law before the trial court. [Adams] is disqualified
to be a [c]o-[e]xecutor under § 43-2-22 of the Code
of Alabama."

Chip and Minor's brief, at 9. Section 43-2-22, Ala. Code

1975, provides, in pertinent part:

"(a) No person must be deemed a fit person to
serve as executor who is under the age of 19 years,
or who has been convicted of an infamous crime, or
who, from intemperance, improvidence or want of
understanding, is incompetent to discharge the
duties of the trust. Nor shall any nonresident of
the state be appointed as administrator unless he is
at the time executor or administrator of the same
estate in some other state or territory or
jurisdiction, duly qualified under the laws of that
jurisdiction."

Chip and Minor argue:

"This Court [has] held [that] § 43-2-22 applies to
both the qualifications of executors as well as
administrators in the probate of estates. Burnett
v. Garrison, 75 So. 2d 144, 148 (Ala. 1954).
Additionally, this Court has stated '[w]e recognize
that the disqualification statute (§ 43-2-22) uses
only the word "executor" and that this Court, as far
back as the case of Williams v. McConico, 27 Ala.
572 (1855), has applied this disqualification
statute to administrators also.' Ex parte Holladay,
466 So. 2d 956, 960 (Ala. 1985). This Court
likewise determined § 43-2-22 is controlling on the
fitness of an executor named in a will, and
therefore controls whether petitioner is a fit
executor of the Estate. Riley v. Wilkinson, 23 So.
2d 582, 589 (Ala. 1945)."

Chip and Minor's brief, at 9-10.

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Chip and Minor's arguments in this regard are

disingenuous at best. Although Ex parte Holladay, 466 So. 2d

956 (Ala. 1985), Burnett v. Garrison, 261 Ala. 622, 75 So. 2d

144 (1954), and Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d

582 (1945), do indicate that the disqualifications listed in

§ 43-2-22 for executors also apply to administrators, those

cases do not hold that the two terms are interchangeable for

the purposes of that statute or that executors are subject to

the nonresident restriction set forth in § 43-2-22 for

administrators. In fact, as Adams argues, § 43-2-191, Ala.

Code 1975, expressly allows a nonresident to serve as an

executor in Alabama: "Judges of probate are authorized to

issue letters testamentary to persons named as executors in

wills regularly probated who are nonresidents of this state,

upon like bond and surety and upon the same terms, conditions

and requirements as are required by law of citizens of this

state."

Chip and Minor argue that, "[h]istorically, § 43-2-22 has

been used for the removal of out of state executors by the

language of this Court." Chip and Minor's brief, at 10

(citing Harris v. Dillard, 31 Ala. 191, 192 (1857)). However,

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at the time Harris was decided, in 1857, the Alabama Code

expressly included nonresidence among the disqualifications

for executors. See Ala. Code 1852, § 1658 ("No person must be

deemed a fit person to serve as executor: ... [w]ho is not an

inhabitant of this state."). By 1876, however, that

disqualification no longer applied to executors. Ala. Code

1876, § 2340 ("No person must be deemed a fit person to serve

as executor –- 1. Who is under the age of twenty-one years. 2.

Who has been convicted of an infamous crime. 3. Who, from

intemperance, improvidence, or want of understanding, is

incompetent to discharge the duties of the trust."); Ala. Code

1876, § 2379 ("Judges of probate are authorized to issue

letters testamentary to persons named as executors in wills

regularly probated, who are or may be non-residents of this

state, upon like bond and security, and upon the same terms,

conditions and requirements as are required by law of citizens

of this state."). Thus, Chip and Minor have not demonstrated

that Adams is disqualified from acting as coexecutor under the

will on the basis of nonresidence.

In light of the statutory authority cited by Adams in

support of his argument that the circuit court erred in

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appointing Chip as coexecutor in place of Colley and the

apparent lack of authority supporting that appointment, we

agree with Adams that he has a clear legal right to have Chip

removed as coexecutor. However, to be entitled to a writ of

mandamus as to this issue at this time, Adams must show not

only that he has a clear legal right to the relief requested,

but he must also show "an imperative duty upon the respondent

to perform, accompanied by a refusal to do so." Toler, 886

So. 2d at 78 (emphasis added). See also Ex parte Barnett, 858

So. 2d 948, 949 (Ala. 2003) ("Mandamus is an extraordinary

writ, and will issue only when the petitioner has demonstrated

that, among other things, 'the respondent has an imperative

duty to perform and has refused to do so.'" (quoting Ex parte

Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000))).

As noted previously, Adams filed a motion on May 23

asking the circuit court to remove Chip as coexecutor. The

circuit court has not, as yet, ruled on that motion, which was

filed only two weeks before Adams filed his mandamus petition

with this Court on June 6, and proceedings have been stayed in

the circuit court since June 20, 2014.

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Adams does not directly address this prong of the

mandamus standard in his petition. He does argue at one point

that "[i]t appears that the trial court is electing to ignore

all filings submitted by Adams," petition, at 16 n.3, noting

that the circuit court has promptly responded to each motion

filed by Chip and Minor but has not ruled on any of Adams's

affirmative pleadings. We find this alleged difference in

treatment troubling, but we cannot say at this time that the

circuit court has "ignore[d]" Adams's motions or that the

circuit court has refused to act on Adams's request to remove

Chip as coexecutor. Thus, although we agree that the circuit

court erred in appointing Chip as coexecutor, we decline to

issue a writ of mandamus with regard to that appointment at

this time. See Ex parte Barnett, supra.

We decline to grant Adams's other requests for mandamus

relief on the same basis. Adams argues that "[he] has a clear

legal right to retain third-party professionals to assist with

estate administration," petition, at 11, and that "the trial

court should be directed to withdraw its May 9, 2014 [o]rder

that prohibits Adams from obtaining the assistance of

attorneys and accountants." Petition, at 14. However, it

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appears that Adams has not moved the circuit court to

"withdraw" its May 9 order. He did argue in his motion to

remove Chip as coexecutor and to impose sanctions against Chip

and Minor that Chip's motion to prohibit the hiring of such

assistance was due to be denied. As noted previously, the

circuit court has not ruled on that motion. Moreover, as

Adams himself acknowledges, the circuit court set the question

of hiring third-party professionals for the May 27 hearing.

No action has been taken since that hearing, but, as noted,

Adams filed his petition for mandamus relief on June 6, only

10 days after the May 27 hearing, and this Court stayed

proceedings in the circuit court on June 20. Even assuming

that Adams has a clear legal right to have the May 9 order

vacated, he has not demonstrated that the circuit court has

refused a request to so act.

Similarly, Adams argues that "[he] has a clear legal

right to obtain all estate property and records in [Chip and

Minor's] possession," petition, at 14, and that he is entitled

to sanctions against Chip and Minor. The circuit court has

not yet ruled on either of those motions. Adams argues: "To

date, the [circuit] court has taken no action upon Adams'[s]

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request to be provided materials under Ala. Code [1975,] § 43-

2-837. Through its silence, the trial court effectively has

denied Adams access to those materials." Petition, at 15.

However, the motion to compel and the request for sanctions

were filed on May 23. Adams's petition for mandamus relief

was filed on June 6, just two weeks later. Adams has cited no

authority -- and we know of none -- indicating that the

failure to rule on a motion within two weeks of its being

filed constitutes a denial of that motion. With these grounds

for mandamus relief, as with Adams's argument regarding the

removal of Chip as coexecutor, he has not met his burden to

"demonstrate[] that, among other things, '[the circuit court]

ha[d] an imperative duty to perform and has refused to do so."

Ex parte Barnett, 858 So. 2d at 949. Thus, Adams is not

entitled to mandamus relief in this regard as well.

Conclusion

We agree with Adams that the circuit court erred in

substituting Chip as a coexecutor of Cleveland's estate.

However, because the circuit court has not yet ruled on

Adams's motion to remove Chip as coexecutor, Adams has not

demonstrated that the circuit court has refused to perform an

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imperative duty. See Ex parte Barnett, supra. Similarly,

Adams has not demonstrated that, at this time, he is entitled

to a writ of mandamus, directing the circuit court to vacate

its May 9 order, which prohibits the hiring of an accountant

or an attorney to assist with the administration of the

estate, or directing the circuit court to grant his motions to

compel production of estate property and assets and to impose

sanctions against Chip and Minor. Therefore, we deny Adams's

petition for mandamus relief. We further lift the stay of

proceedings in the circuit court and encourage the circuit

court to address the pending motions expeditiously.

PETITION DENIED.

Parker, Murdock, and Shaw, JJ., concur.

Moore, C.J., and Stuart, Bolin, and Main, JJ., concur in

the result.

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