In re Estate of Eckert

Summary

The Alabama Supreme Court denied a petition for a writ of mandamus challenging the removal of an estate administration from probate court to circuit court. The court held that invoking equity jurisdiction under a Jefferson County local act did not restrict removal under Alabama Code § 12-11-41, and that removal during trial was timely because no final settlement had occurred. The court also held that notice was not required because removal was a matter of right upon filing a compliant sworn petition.

Holdings

1. Act No. 1144 did not limit or change the right to remove estate administration under section 12-11-41; the local act's grant of concurrent equity jurisdiction was cumulative and expressly preserved removal rights.
2. A petition to remove estate administration is timely when filed at any time before final settlement, including during trial on a claim against the estate, unless the probate court has taken steps toward or completed a final settlement.
3. Notice to the claimants was not required before removal under section 12-11-41 because removal is a matter of right upon the timely filing of a qualifying sworn petition.
4. The Claytons were not entitled to mandamus because they failed to establish a clear abuse of discretion or a clear and indisputable right to prevent removal.

Questions Presented

1. Whether Act No. 1144, which granted concurrent equity jurisdiction to the Jefferson County Probate Court, limited or conflicted with the administratrix's right to remove estate administration to circuit court under section 12-11-41.
2. Whether removal was timely when the petition was filed during trial on a claim against the estate but before final settlement.
3. Whether the circuit judge abused his discretion by ordering removal without notice to the claimants.

Disposition

writ_denied