Rel: 10/17/2014




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           SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130385
                             ____________________

                                  Bessie Kirksey

                                           v.

                              Iris Johnson et al.

                             ____________________

                                    1130403
                             ____________________

                       Ex parte Iris Johnson et al.

                       PETITION FOR WRIT OF MANDAMUS

                       (In re: Bessie Kirksey et al.

                                           v.

                             Iris Johnson et al.)
     Appellate Proceedings from Jefferson Probate Court
                      (Case No.: 44653)



PARKER, Justice.

    Bessie Kirksey appeals an order of the Jefferson Probate

Court ("the probate court") vacating its order discharging

Kirksey as administrator ad litem of the estate of Kirksey's

sister, Willie Mae Graves, deceased.       Iris Johnson, Darryl

Thomas,   Dorothy    McLemore,   John   McLemore,   Jr.,   Jerrick

McLemore, Frederick Pryor, Jr., Rafeal Santece Powell, Nyya

Nicole Marshall, Brandon LeMar Marshall, and Jeffrey Sams

(alleged heirs of Graves hereinafter collectively referred to

as "the omitted heirs") filed a cross-appeal from the probate

court's order insofar as it denied the omitted heirs' motion

to transfer the case to the Jefferson Circuit Court based on

the alleged lack of subject-matter jurisdiction in the probate

court.    For the reasons stated herein, we treat the cross-

appeal as a petition for a writ of mandamus, and we have

styled the case accordingly.     We dismiss the appeal, and we

grant the petition and issue the writ.

                   Facts and Procedural History


                                 2
1130385, 1130403

      On June 3, 2011, Graves died intestate.                  On June 21,

2011, Kirksey filed a petition in the probate court requesting

appointment as administrator ad litem for the purpose of

bringing a wrongful-death claim.             On June 30, 2011, Kirksey

sent the probate court a letter via facsimile stating: "Below

is the information you needed regarding the next of kin for

Willie Mae Graves." The letter then listed Kirksey's name and

address and the names and addresses of Margaret Thompson and

Sonya Gardner, whom the letter identified as Graves's sisters.

Kirksey's letter to the probate court also stated that, "[a]t

the   time   of    death,   Willie    Mae    Graves    had   no       spouse   or

children."        On July 11, 2011, the probate court issued an

order granting Kirksey's petition and stating:

      "Kirksey is appointed as administratrix ad litem in
      the matter of the estate of Willie Mae Graves,
      deceased, [to gather] information to investigate a
      wrongful death claim, with the express order that
      any settlement of the case must first be approved by
      [the probate court].    In addition, [Kirksey] must
      immediately deposit the recovery of any funds into
      the Jefferson County Probate Court Trust Fund for
      proper distribution."

      Subsequently, Kirksey filed a wrongful-death action in

the Jefferson Circuit Court. On March 21, 2012, Kirksey filed

a   motion   in    the   probate     court   stating    that      a    proposed


                                      3
1130385, 1130403

confidential settlement had been reached with the defendant in

the wrongful-death action.   However, instead of asking the

probate court to approve the proposed settlement of the

wrongful-death action, as the probate court required in its

July 11, 2011, order, Kirksey requested that she be relieved

of that condition to her appointment as administrator ad

litem.   Kirksey also requested that the probate court not

require her to deposit the funds with the probate court for

distribution.   In support of her motion, Kirksey attached a

copy of Alabama's wrongful-death statute, § 6-5-410, Ala. Code

1975, which states, in pertinent part: "The damages recovered

are not subject to the payment of the debts or liabilities of

the testator or intestate, but must be distributed according

to the statute of distributions."

    On May 1, 2012, the probate court held a hearing on

Kirksey's motion. On May 4, 2012, the probate court issued an

order stating, in pertinent part:

         "(2) The court approves the wrongful death
    settlement of $2,250,000 on behalf of the estate of
    Willie Mae Graves.

         "(3) Pursuant to [the] Wrongful Death Act
    codified in [Ala. Code 1975,] § 6-5-410(c), the
    proceeds 'are not subject to the payment of the
    debts or liabilities of the testator or intestate,

                              4
1130385, 1130403

    but must be distributed according to the statute of
    distributions.'

         "(4) According to [Kirksey], the deceased leaves
    three lawful heirs:

              "Sister.   Bessie   Kirksey   (adult   of
         sound mind)

              "Sister. Margaret Thompson (adult of
         sound mind)

              "Sister. Sonya Gardner (adult of sound
         mind)

         "(5) The court orders [Kirksey's attorney] to
    distribute the proceeds in accordance with [Ala.
    Code 1975,] § 43-8-42(3).

         "(6) The court approves the distribution of
    these proceeds via the trust account of [Kirksey's
    attorney]. Said proceeds are not to be paid into
    the [probate court]."1

Although the probate court did not require Kirksey to deposit

the wrongful-death-settlement proceeds with the probate court,

the probate court purported to approve the settlement of the



    1
     We note that, in its May 4, 2012, order, the probate
court stated that the settlement of the wrongful-death action
was "on behalf of the estate of Willie Mae Graves." However,
as discussed more thoroughly below, a wrongful-death action is
not brought by, or on behalf of, the estate of a decedent.
Instead, Kirksey was appointed to bring the wrongful-death
action on behalf of those entitled to receive any damages from
such an action under the statute of distributions. See Ex
parte Taylor, 93 So. 3d 118, 119 (Ala. 2012)(Murdock, J.,
concurring specially).
                              5
1130385, 1130403

wrongful-death action and the distribution of the wrongful-

death-settlement proceeds to Kirksey, Thompson, and Gardner.

    The record includes an affidavit of Kirksey, which lists

Kirksey, Thompson, and Gardner as a "full and exhaustive list"

of Graves's siblings.   The affidavit further states:

         "6. I understand that a settlement was reached
    in the [wrongful-death action] in the Circuit Court
    of Jefferson County (Bessemer Division), Alabama.
    This case was brought pursuant to [Ala. Code 1975,]
    § 6-5-410, which is the Wrongful Death Statute of
    Alabama. According to the Wrongful Death Act, any
    damages recovered must be distributed according to
    the Statute of Distributions. Because my sister was
    not married at the time of her death and had no
    children, I understand that all of the proceeds from
    the wrongful death case pass to her heirs pursuant
    to [Ala. Code 1975,] § 43-8-42(1). Pursuant to this
    statute, all proceeds will pass to the heirs as long
    as they are of the same degree of kinship and then
    they take equally.

         "7. Therefore, all siblings of Willie Mae Graves
    would share equally in the proceeds. I understand
    and agree that the list of heirs above is a complete
    and final list.    I affirm that I do not have any
    knowledge of any other spouse, children, siblings or
    heirs of Willie Mae Graves. I further attest and
    affirm that all of the listed heirs are true and
    accurate heirs of Willie Mae Graves, pursuant to
    [Ala. Code 1975,] § 43-8-48. Therefore, by signing
    this declaration, I attest and affirm that I agree
    to this distribution, I agree with the accuracy of
    the list of heirs, I have no knowledge of any
    additional heirs, and I would waive any potential
    legal claim based on any assertion that any of the
    listed heirs are not legal heirs entitled to a share
    of these wrongful death proceeds."

                              6
1130385, 1130403

    On June 28, 2012, Kirksey, Thompson, and Gardner filed

acknowledgments of the receipt of a distributive share of the

wrongful-death-settlement proceeds.         On the same day, the

probate court issued a certificate of discharge stating that

Kirksey "is hereby discharged and is released, in so far as

her liability appears from her account, evidences and reports

filed in this court."

    Sometime thereafter, the omitted heirs learned about the

distribution of the wrongful-death-settlement proceeds and

filed in the probate court an "emergency petition to reopen

estate, set aside discharge, appoint county administrator to

handle estate and for other relief."        In their petition, the

omitted    heirs   challenged   Kirksey's    distribution   of   the

wrongful-death-settlement proceeds. Specifically, the omitted

heirs argued that they are heirs of Graves, known to Kirksey

at the time of her appointment as administrator ad litem, and

that, therefore, they are entitled to a share of the wrongful-

death-settlement proceeds along with Kirksey, Thompson, and

Gardner.    The omitted heirs argued that the "estate need[ed]

to be reopened to set aside the discharge that was entered,"

pursuant to Rule 60(b), Ala. R. Civ. P., but they did not


                                 7
1130385, 1130403

specify which subpart of Rule 60(b) applied to their petition.

The omitted heirs' petition asked the probate court to: 1)

reopen the case, 2) set aside the certificate of discharge of

Kirksey from her duties as administrator ad litem, 3) require

Kirksey   to   make   an   accounting   of   the   receipts   and

disbursements of the wrongful-death-settlement proceeds, 4)

order Kirksey to refund all sums overpaid, whether to her or

to others, 5) appoint the county administrator to represent

Graves's estate, 6) order Gardner and Thompson to immediately

repay any overpayment, and 7) order other appropriate relief.

    On February 4, 2013, Gardner filed an objection to the

omitted heirs' petition. Gardner argued that the petition was

untimely and improper for failing to allege an applicable

reason for relief under Rule 60(b), Ala. R. Civ. P.      Gardner

also argued that the petition should be denied because, she

argued, the omitted heirs provided no evidence to substantiate

their claim that the are heirs of Graves.

    On February 5, 2013, the omitted heirs amended their

petition and alleged that Kirksey had perpetrated a fraud on

the probate court by swearing to the probate court that she,

Thompson, and Gardner constituted Graves's heirs and that she


                                8
1130385, 1130403

had,       therefore,    distributed    the     wrongful-death-settlement

proceeds in accordance with the statute of distributions, when

Kirksey had actually deprived the omitted heirs of their

portion        of       the   wrongful-death-settlement          proceeds.

Accordingly, the omitted heirs alleged that they were entitled

to relief pursuant to § 43-8-5, Ala. Code 1975, which states:

            "Whenever fraud has been perpetrated in
       connection with any proceeding or in any statement
       filed under this chapter or if fraud is used to
       avoid or circumvent the provisions or purposes of
       this chapter, any person injured thereby may obtain
       appropriate relief against the perpetrator of the
       fraud or restitution from any person (other than a
       bona fide purchaser) benefitting from the fraud,
       whether innocent or not. Any proceeding must be
       commenced within one year after the discovery of the
       fraud or from the time when the fraud should have
       been discovered, but no proceeding may be brought
       against one not a perpetrator of the fraud later
       than five years after the time of the commission of
       the fraud. This section has no bearing on remedies
       relating to fraud practiced on a decedent during his
       lifetime which affects the succession of his
       estate."

       On February 25, 2013, Keith T. Belt, Jr., and the Belt

Law    Firm,    P.C.     (hereinafter       collectively   referred   to   as

"Belt"), who had formerly represented Kirksey in this matter,2

filed a complaint interpleading a portion of the wrongful-

       2
     Belt represented Kirksey through her discharge as
administrator ad litem.   On February 14, 2013, Kirksey
retained current counsel.
                                        9
1130385, 1130403

death-settlement proceeds and seeking declaratory relief,

naming Kirksey, Thompson, Gardner, and the omitted heirs as

defendants.3       Belt alleged that he learned of the omitted

heirs     on    November      26,   2012,    after     the    wrongful-death-

settlement proceeds had been distributed to Kirksey, Thompson,

and Gardner. Belt alleged that Kirksey, Thompson, and Gardner

had received twice as much of the wrongful-death-settlement

proceeds as they should have and that he had taken immediate

steps to obtain repayment of the distributed funds upon

learning of the existence of the omitted heirs.                  Belt alleged

that Kirksey returned $233,903.17, half of the amount of the

wrongful-death-settlement proceeds she had received, and that

Gardner returned $10,000, which sums Belt held in trust; Belt

did   not      state   that    Thompson     returned    any    of   the   funds

distributed to her. Belt deposited with the probate court the

$243,903.17 of the wrongful-death-settlement proceeds he had

received from Kirksey and Gardner and requested that the

probate court accept the interpleaded funds, enter a judgment

declaring the rights and obligations as between and among the

      3
     Belt alleged that Graves's brother John McLemore, Sr.,
had a son named Jeremy, last name unknown, whom Belt named as
a defendant.   However, the omitted heirs denied that John
McLemore, Sr., had a son named Jeremy.
                                       10
1130385, 1130403

defendants; order that Belt be released and discharged from

any and all liability, duty, or other obligation to Kirksey,

Thompson, Gardner, and the omitted heirs; and award Belt

attorney fees and costs associated with the complaint from the

interpleaded funds.      Kirksey, Thompson, Gardner, and the

omitted   heirs    separately    answered    Belt's       interpleader

complaint and objected to Belt's requested relief on numerous

grounds –- including the probate court's alleged lack of

subject-matter      jurisdiction      over       Belt's     complaint.

Subsequently, Belt filed a motion for a discharge from the

interpleader action.    Belt's motion has been held in abeyance

pursuant to an agreement of the parties.

    On February 28, 2013, Gardner filed an objection to the

omitted   heirs'   petition,    arguing   that    §   43-8-5   was   not

applicable because, she argued, any false representation made

to the probate court concerning the number and identity of

Graves's heirs was not the product of fraud on the probate

court.

    On April 12, 2013, Thompson filed a response to the

omitted heirs' petition and raised the same objections Gardner

had raised in her responses to the omitted heirs' original and


                                 11
1130385, 1130403

amended petitions.     On June 17, 2013, Thompson filed a motion

to dismiss the omitted heirs' petition under Rule 60(b), Ala.

R. Civ. P., as being untimely; she also alleged that § 43-8-5

was inapplicable because, Thompson said, there had been no

fraud on the probate court.

    On June 17, 2013, Kirksey filed a response to the omitted

heir's petition and made the same arguments as those made by

Gardner and Thompson; she additionally argued that the probate

court had "lost jurisdiction over the parties and subject

matter."

    On June 18, 2013, the probate court conducted a hearing

on the omitted heirs' petition.

    On July 8, 2013, the omitted heirs filed a complaint

against    Kirksey,   Gardner,   and   Thompson   in   the   Jefferson

Circuit Court, asserting various claims related to Kirksey's

alleged improper distribution of the wrongful-death-settlement

proceeds.4



    4
     We note that by filing their action, the omitted heirs
essentially sought the same relief in the Jefferson Circuit
Court they are seeking in the probate court.       Mainly, the
omitted heirs have sought to hold Kirksey liable for her
alleged improper distribution of the wrongful-death-settlement
proceeds.
                                 12
1130385, 1130403

       On August 26, 2013, the probate court issued an order

granting      the    omitted    heirs'    motion    to   "reopen"      Graves's

estate,    setting      aside    its     order    discharging    Kirksey    as

administrator         ad   litem,        and     appointing      the     county

administrator to preside over future proceedings –- which the

probate court identified as a redistribution of the wrongful-

death-settlement        proceeds;      the     probate   court   also   denied

Kirksey's motion to dismiss Belt's interpleader complaint for

lack of subject-matter jurisdiction.

       On September 25, 2013, the omitted heirs filed a motion

challenging the probate court's subject-matter jurisdiction

over    the    distribution       of     the     wrongful-death-settlement

proceeds, requesting that the probate court vacate its August

26, 2013, order insofar as it "reopened" Graves's estate and

appointed      the    county    administrator       to   preside    over   the

proceedings, because letters of administration had never been

issued to initially open Graves's estate, and requesting that

the probate court transfer the interpleaded funds to the

Jefferson Circuit Court pending a determination in the action

in that court that had been filed by the omitted heirs.




                                       13
1130385, 1130403

    On September 26, 2013, Kirksey filed a motion asking the

probate court to reconsider its August 26, 2013, order and to

enter a new order finding that she had not committed a fraud

on the probate court.

    On November 1, 2013, Belt filed a response to the omitted

heirs' September 25, 2013, motion and argued that the probate

court had jurisdiction over the interpleader action.

    On November 25, 2013, the probate court entered the

following order:

         "This matter comes before the Court on two
    separate motions. On November 5, 2013, the Court
    heard oral argument on the motion of Defendant
    Bessie Kirksey, seeking to have the Court reconsider
    its Order of August 26, 2013, reopening the Estate
    of Willie Mae Graves, as well as the motion of the
    [omitted heirs] seeking to have the Court determine
    whether ... it has jurisdiction to continue to
    preside over this matter. A third Motion filed by
    Interpleader Plaintiffs Keith T. Belt, Jr. and the
    Belt Law Firm, P.C. seeking a discharge will be held
    in abeyance per the agreement of all counsel.

         "The motions now before the court raise issues
    of whether the appointment of an Administrator ad
    Litem granted such AAL the authority to maintain and
    settle a wrongful death case citing the concurring
    opinion of Justice Bolin in Golden Gate Nat. Senior
    Care, LLC v. Roser, 94 So. 3d 365 (Ala. 2012). The
    cited opinion is admitted to be mere dicta and this
    court is compelled to follow the law as stated in the
    controlling case of Affinity Hospital, LLC v.
    Williford, 21 So. 3d 712 (Ala. 2009).


                             14
1130385, 1130403

         "The motions raise the issue of this court's
    jurisdiction to act in this case relying principally
    upon Ex parte Rodgers, [141 So. 3d 1038 (Ala. 2013),]
    and Justice Murdock's special concurring opinion in
    Ex parte Taylor, 93 So. 3d 118 (Ala. 2012). Neither
    of these opinions is controlling in this case. The
    Rodgers case holds that an administrator, in his or
    her capacity as administrator, may not be compensated
    from wrongful death proceeds based upon the statutory
    formula for compensation of personal representatives
    because the proceeds from the wrongful death recovery
    are not assets of the estate. It was not a
    jurisdiction case and the appeal in that case was
    from the Circuit Court for Jefferson County and
    raised no jurisdictional issue. In fact, Justice
    Bolin wrote a specially concurring opinion suggesting
    that while the personal representative may not be
    compensated in his or her capacity as personal
    representative of the decedent's estate, he or she
    may and should be compensated as a trustee.

         "The movants next rely upon the special
    concurring opinion of Justice Murdock in Ex parte
    Taylor, supra, in which Justice Bolin concurred. The
    issue of probate jurisdiction was not before the
    court in that case and it should be emphasized that
    the rationale in the special concurring opinion,
    while well stated, is one side of the issue, and is
    not a holding of the Supreme Court nor does it
    necessarily state the opinion of a majority of the
    justices. In that opinion, after citing 12-13-1 [et
    seq., Ala. Code 1975,] Justice Murdock states,

              "'The    foregoing    categories    of
         jurisdiction concern matters relating to
         the administration of a decedent's estate;
         they do not authorize the probate court to
         entertain a motion concerning the approval
         of the settlement of a wrongful-death claim
         by a personal representative or to enter an
         order concerning the distribution of the
         proceeds from a settlement in such an

                             15
1130385, 1130403

         action as part of the final settlement of
         the estate. Likewise, matters concerning
         the personal representative's settlement of
         a wrongful-death claim and the distribution
         of the proceeds therefrom do not fall
         within the Mobile Probate Court's general
         equity jurisdiction, which is limited to
         matters of equity "in the administration of
         the estates," Act No. 91-131, Ala. Acts
         1991, and to "any proceeding involving a
         testamentary or inter vivos trust." Ala.
         Code 1975, § 19-3B-203.'

         "However, the reference to Ala. Code 1975, §
    19-3B-203 makes no reference to the interpretation of
    that code section construed by the full Court in
    Regions v. Reed, 60 So. 3d 868 (Ala. 2010), in an
    opinion also authored by Justice Murdock:

              "'Thus,   the   probate    courts    of
         Jefferson, Mobile, and Shelby Counties have
         concurrent jurisdiction with the circuit
         courts of those counties to hear any
         proceeding   brought   by   a   trustee   or
         beneficiary concerning the administration
         of a trust. In other words, the reference
         in subsection (b) of § 19-3B-203 to probate
         courts that have been granted "statutory
         equitable jurisdiction" is an identifying
         reference,   not   a   limitation   on   the
         jurisdiction of the courts so identified.
         It is those probate courts to which
         subsection    (b)     grants     "concurrent
         jurisdiction" with the circuit courts to
         hear actions concerning the administration
         of a trust brought by a trustee or
         beneficiary.'

    "60 So. 3d at 880.

         "There is a limitation in 19-3B-203(b) to inter
    vivos and testamentary trusts. While the concurring

                             16
1130385, 1130403

    opinion in Ex parte Taylor concludes that the trust
    or quasi trust formed for the proceeds of a wrongful
    death recovery is neither, it may also be argued that
    the trust is an inter vivos trust.

         "But the jurisdiction of this court in this case
    is not dependant upon the Uniform Trust Code. Ala.
    Code 1975, § 43-2-111 is a part of the probate code
    of this state. It is contained in Article 5 of Title
    43 which is titled 'Liability of Executors and
    Administrators'     and    states,    'The   personal
    representative and the sureties on his bond are
    liable to the parties in interest for the due and
    legal distribution of all damages recovered by such
    representative under sections ... 6-5-410[, Ala. Code
    1975, the wrongful-death act]... and are subject to
    all remedies which may be pursued against such
    representative    and     sureties    for  the    due
    administration   of    personal   assets.'  (Emphasis
    supplied). The sureties on the bond are bound to the
    probate court and no other court. The probate court
    has jurisdiction over the administrator and is the
    only party in interest who can call upon the surety
    for the payment of the penal sum of the bond. One of
    the remedies referred to in the code section which is
    available to the persons of interest who are wronged
    by the improper distribution of funds held by the
    administrator is to obtain an order from the probate
    court directing the proper administration of the
    funds and calling in the bond for failure to do so.
    It is clear that this court has original general
    jurisdiction to enforce this section of the code.

         "With regard to the motion to reconsider, the
    Court holds that its previous finding of fraud on the
    Court is properly supported by the Court's record.
    There is no question that the Court's prior orders
    regarding the Estate of Willie Mae Graves relied upon
    information supplied by the Administrator ad Litem,
    Bessie Kirksey, in open court which has now been
    proven to be inaccurate. Regardless of her position
    that she did not intend to cause harm while making

                             17
1130385, 1130403

    those statements, the statements were nonetheless
    relied upon by the Court thereby creating a fraud on
    the Court as a matter of law. This court has now
    heard the arguments of counsel on its motion to
    reconsider but has heard no evidence controverting
    the evidence taken in open court which induced this
    court to close the estate. The information then
    presented has been proven in open court to be untrue
    and this court has ruled that the order discharging
    the administrator ad litem is due to be and has been
    set aside and the estate has been reopened. There
    being no new or additional evidence presented to this
    court, the motion to reconsider is hereby denied.

         "For the foregoing reasons, and the Court's
    finding that it does have jurisdiction to continue to
    preside over the matters which are currently before
    the Court, the motion to construe jurisdiction is
    hereby denied. The Court finds that jurisdiction will
    be maintained in the Probate Court.

         "There being no just cause for delay, this is
    determined to be a final order under [Rule 54(b),
    Ala. R. Civ. P.]."

Kirksey appealed; the omitted heirs cross-appealed, which

cross-appeal we are treating as a petition for a writ of

mandamus.

                          Discussion

    Initially, we note:

         "Not every order has the requisite element of
    finality that can trigger the operation of Rule
    54(b)[, Ala. R. Civ. P.]. Moss v. Williams, 747 So.
    2d 905 (Ala. Civ. App. 1999). Therefore, a trial
    court should certify a nonfinal order as final
    pursuant to Rule 54(b) only 'where the failure to do
    so might have a harsh effect.' Brown v. Whitaker

                              18
1130385, 1130403

    Contracting Corp., 681 So. 2d 226, 229 (Ala. Civ.
    App. 1996) (overruled on other grounds, Schneider
    Nat'l Carriers, Inc. v. Tinney, 776 So. 2d 753 (Ala.
    2000)). Rule 54(b) certifications are not to be
    entered routinely and should be made only in
    exceptional cases. Parrish v. Blazer Fin. Servs.,
    Inc., 682 So. 2d 1383 (Ala. Civ. App. 1996).
    '"Appellate review in a piecemeal fashion is not
    favored."' Harper Sales Co. v. Brown, Stagner,
    Richardson, Inc., 742 So. 2d 190, 192 (Ala. Civ. App.
    1999) (quoting Brown v. Whitaker Contracting Corp.,
    681 So. 2d at 229)."

Goldome Credit Corp. v. Player, 869 So. 2d 1146, 1148 (Ala.

2003).

         "For an order to be susceptible to Rule 54(b)
    certification, the order must dispose of at least one
    of a number of claims or one of multiple parties,
    must make an express determination that there is no
    just reason for delay, and must expressly direct the
    entry of a judgment as to that claim or that party.
    Jakeman v. Lawrence Group Mgmt. Co., 82 So. 3d 655,
    659 (Ala. 2011) (citing Committee Comments on 1973
    Adoption of Rule 54(b), Ala. R. Civ. P.). ...

              "'Pursuant to Rule 54(b), a trial court
         may direct "the entry of a final judgment
         as to one or more but fewer than all of the
         claims or parties." But Rule 54(b) makes an
         order final –- and therefore appealable –-
         "only where the trial court 'has completely
         disposed of one of a number of claims, or
         one of multiple parties.'" Tanner v.
         Alabama Power Co., 617 So. 2d 656, 656
         (Ala. 1993) (quoting Committee Comments on
         the 1973 adoption of Rule 54(b)) (emphasis
         added in Tanner). In other words, for a
         Rule 54(b) certification of finality to be
         effective, it must fully adjudicate at
         least one claim or fully dispose of the

                             19
1130385, 1130403

            claims as    they     relate    to    at   least   one
            party.'

      "Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala.
      1999). 'An appeal will not lie from a nonfinal
      judgment.' Baugus v. City of Florence, 968 So. 2d
      529, 531 (Ala. 2007)."

Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1165-

66 (Ala. 2012).

      The probate court's November 25, 2013, order did not

completely adjudicate a claim.               Accordingly, the        probate

court's order was not a final judgment, and the probate

court's Rule 54(b), Ala. R. Civ. P., certification of that

nonfinal order was improper.         "An appeal will not lie from a

nonfinal judgment."       Baugus v. City of Florence, 968 So. 2d

529, 531 (Ala. 2007).          We therefore dismiss Kirksey's appeal

(case no. 1130385).

      Although an appeal will not lie from a nonfinal judgment,

in certain instances a party can challenge a nonfinal order by

a petition for a writ of mandamus.               This Court has treated a

notice of appeal as a petition for a writ of mandamus,

Morrison Rests., Inc. v. Homestead Vill. of Fairhope, Ltd.,

710   So.   2d   905   (Ala.    1998),     and,   conversely,    treated   a

petition for a writ of mandamus as a notice of appeal, Ex


                                    20
1130385, 1130403

parte Burch, 730 So. 2d 13 (Ala. 1999).      As noted in F.L.

Crane & Sons, Inc. v. Malouf Construction Corp., 953 So. 2d

366 (Ala. 2006), this Court's actions in the above cases is

consistent with Rule 1, Ala. R. App. P., which provides:

"[These rules] shall be shall be construed so as to assure the

just, speedy, and inexpensive determination of every appellate

proceeding on its merits."   Likewise, Rule 2(b), Ala. R. App.

P., also calls for the suspension of the requirements or

provisions of any of the Rules of Appellate Procedure "[i]n

the interest of expediting decision."   In F.L. Crane & Sons,

this Court explained the reasoning for using the flexibility

afforded by Rules 1 and 2 in the situations presented in that

case and in Morrison Restaurants, Ex parte Burch, and the

present case:

         "In Ex parte Burch, we treated a petition for
    the writ of mandamus addressed to a trial court's
    denial of a motion in limine as a notice of appeal.
    We stated in Burch that there is 'no bright-line test
    for determining when this Court will treat a
    particular filing as a mandamus petition and when it
    will treat it as a notice of appeal.' 730 So. 2d at
    146. Instead, we consider the facts of the particular
    case in deciding whether to treat the filing as a
    petition or as an appeal:

         "'The question we come to, then is this: Do
         the circumstances of this case make it such
         that the policies set forth in Rule 1[,

                              21
1130385, 1130403

          Ala. R. App. P.,] will be served by
          resolving the matter presented to us? Or,
          will those policies be better served by
          requiring, as we do in the normal case,
          strict compliance with our appellate rules
          and thus not reviewing the trial court's
          interlocutory ruling?'

    "730 So. 2d at 147.

         "In Burch, we treated the petition as a petition
    for a permissive appeal under Rule 5, Ala. R. App.
    P., because the hearing transcript revealed the trial
    court's belief that this Court's resolution of the
    motion in limine was 'important to materially
    advancing th[e] litigation.' 730 So. 2d at 147–48.
    Similarly, we believe that deciding the issue of the
    enforceability of this forum-selection clause on its
    merits   will   further   the  'just,   speedy,   and
    inexpensive determination ... on [the] merits' of the
    case favored by Rule 1, Ala. R. App. P."

953 So. 2d at 372.

    As in Ex parte Burch, consideration of the subject-matter

jurisdiction of the probate court –- an issue raised by the

omitted   heirs   in   their   cross-appeal    –-   is   important   to

materially advancing this litigation.         Therefore, although we

are dismissing Kirksey's appeal, we treat the omitted heirs'

cross-appeal as a petition for a writ of mandamus requesting

this Court to direct the probate court to dismiss this case on

the basis that that court lacks subject-matter jurisdiction




                                 22
1130385, 1130403

over    the       distribution       of     the    wrongful-death-settlement

proceeds.

       We review the omitted heirs' petition according to the

following standard of review:

            "'Mandamus is a drastic and extraordinary writ,
       to be issued only where there is (1) a clear legal
       right in the petitioner 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) properly invoked
       jurisdiction of the court.' Ex parte Integon Corp.,
       672 So. 2d 497, 499 (Ala. 1995). The question of
       subject-matter jurisdiction is reviewable by a
       petition for a writ of mandamus. Ex parte Flint
       Constr. Co., 775 So. 2d 805 (Ala. 2000)."

Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480

(Ala. 2003).

       In   its     November   25,    2013,       order,   the   probate   court

concluded that "it does have jurisdiction to continue to

preside over the matters which are ... before" it.                           The

matters that were before the probate court when it entered

that order were Kirksey's motion to reconsider the probate

court's August 26, 2013, order –- which "reopened" Graves's

estate,       set    aside     its        order    discharging     Kirksey    as

administrator ad litem, appointed the county administrator to

preside over future proceedings, and denied Kirksey's motion


                                           23
1130385, 1130403

to dismiss Belt's interpleader complaint for lack of subject-

matter jurisdiction –- as well as the omitted heirs' September

25, 2013, motion –- which challenged the probate court's

subject-matter    jurisdiction   over   the   distribution   of   the

wrongful-death-settlement proceeds.       The nucleus of each of

those matters is the same: the alleged improper distribution

of   the   wrongful-death-settlement    proceeds.    As    explained

below, the probate court's conclusion that the settlement of

the wrongful-death action was on behalf of the estate of the

decedent led it to believe that it had jurisdiction over the

distribution of the wrongful-death-settlement proceeds.5

     A wrongful-death action is not brought by the estate of

the decedent; accordingly, the proceeds from a wrongful-death

action are not part of the decedent's estate.             As Justice

     5
     We note that the question of Kirksey's capacity, as
administrator ad litem, to bring the wrongful-death action is
not before this Court.       In Affinity Hospital, LLC v.
Williford, 21 So. 3d 712, 718 (Ala. 2009), this Court held
that, in maintaining a wrongful-death action, a plaintiff was
"acting in her capacity as an administrator ad litem, was a
'personal representative' within the meaning of Ala. Code
1975, § 6-5-410, and was, therefore, vested with the authority
conferred by that section to file a wrongful-death action."
Accordingly, we limit our analysis to the narrow issue
involving the subject-matter jurisdiction of the probate court
to oversee the distribution of the wrongful-death-settlement
proceeds received by Kirksey as the personal representative of
the decedent.
                                 24
1130385, 1130403

Murdock noted in his special concurrence to Ex parte Taylor,

93   So.   3d   118,   118   (Ala.   2012)(Murdock,   J.,   concurring

specially):

     "[A]n estate cannot file a wrongful-death action. See
     Ala. Code 1975, § 6–5–410; Downtown Nursing Home,
     Inc. v. Pool, 375 So. 2d 465, 466 (Ala. 1979) (noting
     that the 'right' to file a wrongful-death action is
     'vested in the personal representative alone').1 As
     a corollary, the proceeds from the settlement of the
     wrongful-death claim that arose out of Newman's death
     are not a part of Newman's estate. See, e.g., Steele
     v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)
     ('[D]amages awarded pursuant to [§ 6–5–410] ... are
     not part of the decedent's estate.').

           "This Court has long recognized that,

           "'[i]n     prosecuting     [wrongful-death]
           actions, the personal representative does
           not act strictly in his capacity as
           administrator   of   the   estate   of  his
           decedent, because he is not proceeding to
           reduce to possession the estate of his
           decedent, but rather he is asserting a
           right arising after his death, and because
           the damages recovered are not subject to
           the payment of the debts or liabilities of
           the decedent. He acts rather as an agent of
           legislative     appointment      for    the
           effectuation of the legislative policy....'

     "Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759,
     761 (1965); see also Steele, 623 So. 2d at 1141
     (noting that the 'personal representative ... act[s]
     as agent by legislative appointment for the
     effectuation of a legislative policy of the
     prevention of homicides through the deterrent value
     of the infliction of punitive damages'). 'Upon a
     recovery, [the personal representative] acts as a

                                     25
1130385, 1130403

    quasi trustee for those who are entitled thereto
    under the statute of distribution. Such damages are
    not subject to administration and do not become part
    of the deceased's estate.' United States Fid. & Guar.
    Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149,
    155, 274 So. 2d 615, 621 (1973). Indeed, commenting
    on an earlier version of Alabama's wrongful-death
    statute, this Court noted that the legislature has

         "'impose[d] upon the administrator a trust
         separate    and    distinct    from    the
         administration. The trust is not for the
         benefit of the estate, but of the widow,
         children, or next of kin of the deceased.
         The administrator fills this trust, but he
         does not do it in the capacity of
         representative of the estate. It is
         altogether      distinct      from     the
         administration,   notwithstanding   it  is
         filled by the administrator.'

    "Hicks v. Barrett, 40 Ala. 291, 293           (1866)
    (discussing Ala. Code of 1852, § 1938).

    "____________________

         "1Because we do not have the record on appeal
    before us, however, I cannot confirm whether the
    wrongful-death action was filed by Jerry, as personal
    representative of Newman's estate, or by the estate
    itself, as the Court of Civil Appeals states in its
    opinion. Concomitantly, in reference to the Court of
    Civil        Appeals'        description          of
    litigation-settlement-restriction language contained
    in Jerry's letters of administration, the probate
    court has no power to issue such a restriction as to
    the settlement of litigation in which the estate has
    no interest, i.e., a wrongful-death action. ..."

93 So. 3d at 119.




                             26
1130385, 1130403

    With these principles in mind, we now address whether the

probate court had the authority to oversee the distribution of

the wrongful-death-settlement proceeds received by Kirksey and

to condition her discharge as administrator ad litem on the

probate court's approval of Kirksey's distribution of the

wrongful-death-settlement proceeds –- funds that were never

part of Graves's estate and in which the probate court has no

interest; we hold that it did not.

    The    legislature    established      the   subject-matter

jurisdiction of the probate courts in § 12-13-1, Ala. Code

1975, which states:

         "(a) The probate court shall have original and
    general jurisdiction as to all matters mentioned in
    this section and shall have original and general
    jurisdiction as to all other matters which may be
    conferred upon them by statute, unless the statute so
    conferring   jurisdiction    expressly    makes   the
    jurisdiction special or limited.

         "(b) The probate court shall have original and
    general jurisdiction over the following matters:

              "(1) The probate of wills.

               "(2)   The   granting    of   letters
          testamentary and of administration and the
          repeal or revocation of the same.

               "(3) All controversies in relation to
          the    right   of   executorship   or   of
          administration.

                             27
1130385, 1130403

              "(4) The settlement of accounts            of
         executors and administrators.

              "(5) The sale and disposition of the
         real and personal property belonging to and
         the distribution of intestate's estates.

              "(6) The appointment and removal of
         guardians for minors and persons of unsound
         mind.

              "(7) All controversies as to the right
         of guardianship and the settlement of
         guardians' accounts.

              "(8) The allotment of dower in land in
         the cases provided by law.

              "(9) The partition      of   lands   within
         their counties.

              "(10) The change of the name of any
         person residing in their county, upon his
         filing a declaration in writing, signed by
         him, stating the name by which he is known
         and the name to which he wishes it to be
         changed.

              "(11) Such other cases as jurisdiction
         is or may be given to such courts by law in
         all cases to be exercised in the manner
         prescribed by law.

         "(c) All orders, judgments and decrees of
    probate courts shall be accorded the same validity
    and presumptions which are accorded to judgments and
    orders of other courts of general jurisdiction."

    Additionally, the Jefferson Probate Court "has concurrent

jurisdiction   with   the   circuit   court   in   any    proceeding


                                28
1130385, 1130403

involving a testamentary or inter vivos trust."     § 19-3B-203,

Ala. Code 1975.    See Jett v. Carter, 758 So. 2d 526, 529 (Ala.

1999)("Act No. 1144, Ala. Acts 1971 (Reg. Session), a local

act, applies to cases originating in the Jefferson Probate

Court. It grants to the Jefferson Probate Court 'general

jurisdiction concurrent with that of the Circuit Courts of

this State, in equity, in the administration of the estates of

deceased persons, minors and insane or non compos mentis

persons,   including   testamentary   trust   estates.'   (§   1.)"

(emphasis added)).

    As Justice Murdock noted in his special concurrence in Ex

parte Taylor in relation to the subject-matter jurisdiction of

the Mobile Probate Court in a similar situation:

         "The foregoing categories of jurisdiction[, §§
    12-13-1(b)(3)-(5), Ala. Code 1975,] concern matters
    relating to the administration of a decedent's
    estate; they do not authorize the probate court to
    entertain a motion concerning the approval of the
    settlement of a wrongful-death claim by a personal
    representative or to enter an order concerning the
    distribution of the proceeds from a settlement in
    such an action as part of the final settlement of the
    estate. Likewise, matters concerning the personal
    representative's settlement of a wrongful-death claim
    and the distribution of the proceeds therefrom do not
    fall within the Mobile Probate Court's general equity
    jurisdiction, which is limited to matters of equity
    'in the administration of the estates,' Act No.
    91–131, Ala. Acts 1991, and to 'any proceeding

                                29
1130385, 1130403

       involving a testamentary or inter vivos trust.' Ala.
       Code 1975, § 19–3B–203."

93 So. 3d at 122.

       However, in the present case, the probate court did not

hold    that   it    had     subject-matter        jurisdiction        over    the

distribution        of     the    wrongful-death-settlement              proceeds

pursuant to the legislature's general grant of jurisdiction

under § 12-13-1.           Rather, as set forth above, the probate

court    stated     the    following     in     regard    to   whether    it   had

subject-matter       jurisdiction        over    the     distribution     of   the

wrongful-death-settlement proceeds:

            "There is a limitation in 19-3B-203(b) to inter
       vivos and testamentary trusts. While the concurring
       opinion in Ex parte Taylor concludes that the trust
       or quasi trust formed for the proceeds of a wrongful
       death recovery is neither, it may also be argued that
       the trust is an inter vivos trust."

Although    the     probate      court   did    not    address   the     question

whether it had subject-matter jurisdiction under § 19-3B-203,

Ala. Code 1975, a trust formed by the receipt of the proceeds

in a wrongful-death action cannot be construed as an inter

vivos trust, which is a "[t]rust created during lifetime of

settlor and to become effective in his lifetime as contrasted

with a testamentary trust which takes effect at death of


                                         30
1130385, 1130403

settlor or testator."     Black's Law Dictionary 821 (6th ed.

1990).

    Regardless, the probate court further stated that it had

subject-matter   jurisdiction   over   the   distribution   of   the

wrongful-death-settlement proceeds pursuant to § 43-2-111,

Ala. Code 1975, which provides:

         "The personal representative and the sureties on
    his bond are liable to the parties in interest for
    the due and legal distribution of all damages
    recovered by such representative under sections ...
    6-5-410 ... and are subject to all remedies which may
    be pursued against such representative and sureties
    for the due administration of personal assets."

Section 43-2-111   authorizes an action against a personal

representative regarding the distribution of proceeds of a

wrongful-death action; it does not vest the probate court with

subject-matter jurisdiction to oversee the distribution of the

proceeds of a wrongful-death action, in which the estate of

the decedent has no interest.    Accordingly, the probate court

did not have subject-matter jurisdiction under § 12-13-1, §

43-2-111, or § 19-3B-203 over the settlement of the wrongful-

death action and Kirksey's distribution of the wrongful-death-

settlement proceeds. Rather, subject-matter jurisdiction lies

with the circuit court.


                                31
1130385, 1130403

     Therefore, the probate court does not have subject-matter

jurisdiction     over     the    interpleader     action       because    the

interpleaded funds are not part of Graves's estate but are the

proceeds of the        settlement of the wrongful-death action.

Accordingly,     Belt's    interpleader        action     is   due   to    be

dismissed.

     Further, although a probate court has                 subject-matter

jurisdiction over a petition to vacate its discharge of an

administrator ad litem, in this case we note that the only

basis for doing so was to attempt to correct Kirksey's alleged

improper     distribution       of     the    wrongful-death-settlement

proceeds.    Likewise, the probate court's appointment of the

county administrator and its "reopening" of Graves's estate –-

when no letters of administration have been issued –- were

also based on its attempt to oversee the distribution of the

wrongful-death-settlement proceeds, which the probate court

has no authority to do.         Accordingly, the probate court acted

beyond its authority in taking those actions.              Therefore, the

omitted heirs have a clear legal right to the relief they seek

–-   dismissal    of    the     case    for   lack   of    subject-matter

jurisdiction.


                                       32
1130385, 1130403

                                   Conclusion

       For the reasons explained above, the probate court did not

have    subject-matter         jurisdiction     to    oversee      either   the

settlement     of        the     wrongful-death      action   or     Kirksey's

distribution        of     the     wrongful-death-settlement          proceeds

pursuant to the statute of distributions.                 Accordingly, the

actions of the probate court regarding the settlement of the

wrongful-death       action       and   Kirksey's    distribution      of   the

proceeds of the wrongful-death action are void.                 Therefore, we

grant the omitted heirs' petition for a writ of mandamus and

direct the probate court to vacate its August 26, 2013, and

November 25, 2013, orders and to dismiss Belt's interpleader

action.    Furthermore, we direct the probate court to vacate

its May 4, 2012, order insofar as it purported to approve the

wrongful-death settlement and order the distribution of the

funds to Kirksey, Thompson, and Gardner.

       1130385 –- APPEAL DISMISSED.

       Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.

       Murdock, J., concurs specially.

       Moore, C.J., and Stuart, J., concur in the result.

       1130403 –- PETITION GRANTED; WRIT ISSUED.


                                        33
1130385, 1130403

    Main, Wise, and Bryan, JJ., concur.

    Bolin, Murdock, and Shaw, JJ., concur specially.

    Stuart, J., concurs in the result.

    Moore, C.J., dissents.




                             34
1130385, 1130403

BOLIN, Justice (concurring specially in case no. 1130403).

    I note initially that I concur with this Court's main

opinion, including its conclusion that the omitted heirs'

cross-appeal be treated as a petition for a writ of mandamus

because the probate court's November 25, 2013, order was not

a judgment subject to certification of finality under Rule

54(b), Ala. R.        Civ. P.; the question of a court's subject-

matter jurisdiction is reviewable by a petition for a writ of

mandamus.

    Moreover, as a former probate judge, I am experienced and

familiar with the interplay of opening a decedent's estate in

the probate court for the primary purpose of allowing a

personal representative to file a wrongful-death claim in the

circuit court.    Although I concur fully with this Court's main

opinion--vacating the probate court's orders based on that

court's lack of subject-matter jurisdiction to oversee the

distribution     of    the   wrongful-death-settlement          proceeds--I

write specially to note that on July 11, 2011, when the

learned     probate    judge     appointed      Bessie   Kirksey    as   the

administrator     ad     litem    for     the    purpose   of      gathering

"information to investigate a wrongful death claim," the judge


                                     35
1130385, 1130403

was informed generally by this Court's decision in Affinity

Hospital,     L.L.C.   v.    Williford,    21    So.    3d   712    (Ala.

2009)(holding that the probate court's order appointing an

administrator ad litem to investigate a possible wrongful-

death action on behalf of the deceased patient's estate also

granted administrator ad litem the authority to file such an

action).     As demonstrated in the present opinion, this Court

has subsequently, and more narrowly, construed                the plain

wording of § 6-5-410, Ala. Code 1975, to recognize a personal

representative as the proper party to initiate a wrongful-

death action. It is my judgment that Affinity Hospital, by

improperly     allowing     an   administrator    ad    litem      (again,

appointed by the probate court for a specific purpose) to

pursue   a   wrongful-death      action,   blurred     the   distinction

between the probate court's role and the circuit court's role

in wrongful-death actions, because it is the probate court

that generally monitors the actions of its own appointees. The

confusion created was exacerbated by the fact that it is the

probate court where heirship is usually determined, although

the beneficiary recipients (heirs at law of the decedent

pursuant to the statute of distributions) of damages as a


                                   36
1130385, 1130403

result of a circuit court wrongful-death action are one and

the same.      It     is my judgment that the above combined to

substantially create much of the ensuing uncertainty as to

whether the probate court here had any oversight of, or, put

a   better     way,    jurisdiction      to      judicially      supervise     the

safeguarding and proper disbursement of, the corpus created by

a successful wrongful-death action.

     Whether justified or not, the confusion in this area of

estate/wrongful-death law has caused this Court to ultimately

remove   any    doubt       by   delineating      that     a   probate   court's

jurisdiction,          in    overseeing          matters       concerning      the

administration of an estate, does not include those matters

pertaining     to     the   settlement      or    the    distribution     of   the

proceeds of a wrongful-death action, because such proceeds are

not part of the decedent's estate. See, e.g., Ex parte Taylor,

93 So. 3d 118 (Ala. 2012), in which Justice Murdock wrote

specially      to     discuss    the   role      delegated      to   a   personal

representative by § 6–5–410, Ala. Code 1975, and the proper

distribution of proceeds derived from a wrongful-death action,

when the probate court has issued an order concerning the

distribution of those proceeds; Golden Gate Nat'l Senior Care,


                                       37
1130385, 1130403

LLC v. Roser, 94 So. 3d 365 (Ala. 2012), a case in which I

concurred specially to express my judgment that a wrongful-

death   action    may     be    instituted           only    by   a        personal

representative,    and    not    by        an    administrator        ad     litem,

referencing Justice Murdock's special writing in Ex parte

Taylor explaining the role of a personal representative in the

context of a wrongful-death action;              Ex parte Rodgers, 141 So.

3d 1038, 1042 (Ala. 2013), another case in which I concurred

specially and referenced Justice Murdock's special writing in

Ex parte Taylor; and, finally, Ex parte Wilson, 139 So. 3d 161

(Ala. 2013), in which I concurred specially regarding the

inability   of    an    administrator           ad   litem   to   initiate        a

wrongful-death action when the question of the capacity of the

administrator ad litem to bring such an action is properly and

timely presented to the trial court.

    It is always easy to state what the law is, or what a

trial court should or should not have properly done, with the

cool reflection afforded an appellate court. I write specially

to note, however, that when the probate judge appointed an

administrator ad litem on July 11, 2011, he was acting in

conformity with this Court's precedent in Affinity Hospital,


                                      38
1130385, 1130403

which empowered a probate court appointee to institute a

wrongful-death proceeding without there being in existence a

decedent's      estate   or        a      properly      appointed      personal

representative.       Although the subsequent responsibility for

the proper conduct of a wrongful-death action should have been

borne   by    the   circuit    court,        the    probate    judge    in    this

proceeding did not have the benefit of the above-cited and

later released special writings, none of which was controlling

precedent, as the probate court noted in its November 25,

2013, order.

    In conclusion, it is no surprise to me that the probate

court cautiously intervened and the instant scenario occurred,

given   (1)    that    the    probate         court,    in     appointing      the

administrator ad litem, was guided by this Court's decision in

Affinity     Hospital;   (2)       that      the    administrator      ad    litem

appointed by the probate court was empowered to litigate a

wrongful-death      action    to    a   jury       verdict    or   effectuate    a

settlement of potentially a large corpus of funds, despite the

fact that there was no estate proceeding determining heirship

and, in contravention of § 6-5-410, Ala. Code 1975, had been

no appointment of a personal representative; and (3) that,


                                        39
1130385, 1130403

most importantly, the probate judge was bound by section C of

the Compliance provision of the Canons of Judicial Ethics

pertaining to probate judges, which states that "[a] probate

judge should consider himself the conservator of all estates

under   his    jurisdiction."   "Compliance        with   the    Canons   of

Judicial      Ethics,"   following    Canon   7,   Canons   of    Judicial

Ethics.    Although there was no "estate" before the probate

judge as referred to in the Canon, there was certainly the

appointment of a party who, given the state of the law, could

create a corpus of funds payable to heirs –- as close to a

decedent's intestate estate as is possible without the actual

creation thereof.




                                     40
1130385, 1130403

MURDOCK, Justice (concurring specially).

      The main opinion concludes its review of the propriety of

the probate court's Rule 54(b), Ala. R. Civ. P., certification

of its November 25, 2013, order by reasoning that the probate

court's   order      was   not   properly        certifiable    as    a   final,

appealable judgment under Rule 54(b) because that order did

not "completely adjudicate" a claim.                ___ So. 3d at ___.        To

be    clear,   not    only    did   the     probate       court's    order   not

"completely" adjudicate a claim, it did not even "partially"

adjudicate a claim.          Indeed, to the contrary, it "undid" an

otherwise final adjudication of a claim, thereby leaving that

claim open for further consideration by the probate court.

Our   precedents     specifically         hold    that,    except    in   unique

circumstances not present here, the grant of a Rule 60(b),

Ala. R. Civ. P., motion is not appealable for this very

reason, i.e., it vacates a final judgment and contemplates

further proceedings in the trial court.               See, e.g., Washington

Mut. Bank, F.A. v. Campbell, 24 So. 3d 435, 439 (Ala. 2009)

(noting that "[a]n order granting a Rule 60(b), Ala. R. Civ.

P.,   motion   generally      is    not    appealable       because   'further




                                      41
1130385 and 1130403

proceedings are contemplated by the trial court.'                   Ex parte

Overton, 985 So. 2d 423, 424 (Ala. 2007).").

    The "claims" to which Rule 54(b) refers are the claims for

substantive    relief    asserted     by     plaintiffs      that     create

lawsuits.     See Rule 54, Ala. R. Civ. P. (addressing "claims

for relief ..., whether ... a claim, counterclaim, cross-

claim, or third-party claim").         Rule 54(b) addresses orders

that conclusively or finally dispose of such "claims," not

orders that reject defenses asserted by defendants and thereby

leave the plaintiff's claims that are the subject of the Rule

54(b) certification pending for further proceedings.

    In   the   present   case,   the       omitted   heirs    effectively

occupied the position of defendants in relation to Bessie

Kirksey's claims; they "defended" against Kirksey's claims, in

part, by seeking to persuade the probate court to dismiss

those claims for lack of subject-matter jurisdiction.                    The

probate court did not do that.        Although it did choose on the

merits to undo its prior adjudication of Kirksey's claims, it

denied the defendant's motion to dismiss Kirksey's claims on

the ground, asserted by the omitted heirs, that the probate

court lacked subject-matter jurisdiction over those claims.


                                 42
1130385 and 1130403

Thus, the probate court entered an order rejecting the defense

of lack of jurisdiction asserted by the omitted heirs, thereby

keeping Kirksey's claims alive for further proceedings.    Such

an order is not an order otherwise subject to a certification

of finality under Rule 54(b); it did not settle the parties'

substantive rights in relation to one another.       See, e.g.,

Banyan Corp. v. Leithead, 41 So.      3d   51,   54 (Ala. 2009)

(holding that the trial court erred in certifying an order as

a final, appealable judgment under Rule 54(b) because "the

order ... did not completely dispose of any of the substantive

claims in this case, nor did the order fully dispose of the

claims as they relate to at least one party").        See also,

e.g., State v. Brantley Land, L.L.C., 976 So. 2d 996, 999

(Ala. 2007)   ("'"Only a fully adjudicated whole claim against

a party may be certified under Rule 54(b)."'" (quoting James

v. Alabama Coalition for Equity, Inc., 713 So. 2d 937, 942

(Ala.   1997), quoting in turn Sidag Aktiengesellschaft      v.

Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir. 1987)

(emphasis omitted))); and Haynes v. Alfa Fin. Corp., 730 So.

2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b) certification of

finality to be effective, it must fully adjudicate at least


                              43
1130385 and 1130403

one claim or fully dispose of the claims as they relate to at

least one party.").

     The Chief Justice, in his special writing, expresses a

reluctance to accept a petition for a writ of mandamus as the

appropriate vehicle for seeking relief from this Court.                        He

points to § 12-22-20, Ala. Code 1975, which he reads as

permitting an appeal to this Court of the probate court's

order.       The language of § 12-22-20 quoted by the Chief

Justice, however, expressly permits an appeal only as to a

"final judgment, order or decree."

     Nor does the decision of this Court in Watts v. Town of

Green Valley, 282 Ala. 555, 213 So. 2d 398 (1968), support the

notion that an appeal is available in this case.                 The judgment

appealed in Watts, which the trial court there had refused to

vacate, was a final judgment.             That is, the judgment appealed

in   Watts   had   conclusively          adjudicated    the   rights    of    the

parties;     the   judgment        had    provided     the    plaintiffs      the

substantive relief requested in their complaint, i.e., an

order    requiring          an     election    regarding       the     possible

incorporation      of   a    new    town.     Similarly,      the    appeal    in

McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885 (1960), was


                                         44
1130385 and 1130403

from a judgment that had conclusively adjudicated the claims

at issue in that case -- salary claims brought by county

employees against various county commissioners.6 The fact that

the defenses asserted, but rejected by the trial court, in

both Watts and McDonald happened to be jurisdictional defenses

does not change the fact that the judgments entered by the

trial courts in those cases and appealed to this Court were in

and of themselves final judgments that finally decided the

claims asserted by the plaintiffs in those cases.                 The order

of   the   probate   court   here   vacating        its     otherwise    final

judgment    adjudicating     the    claims     of    certain     heirs       and

requiring    further   proceedings       as   to    those    claims     is   the

opposite.




     6
     Both Watts and McDonald were decided by this Court prior
to the promulgation of Rule 54.
                                    45
1130385 and 1130403

SHAW, Justice (concurring specially in case no. 1130403).

    The issue in these cases is whether the probate court

possessed jurisdiction to oversee the actions of the "personal

representative"   pursuing   a   wrongful-death   action    in   the

circuit court.    As the main opinion holds, it does not.         I

agree.

    Justice Bolin, in his special writing, expresses, among

other things, concern that this Court's holding in Affinity

Hospital, L.L.C. v. Williford, 21 So. 3d 712 (Ala. 2009), has

caused confusion as to whether an administrator ad litem may

be appointed to prosecute a wrongful-death action.         I do not

believe that Affinity Hospital causes any such confusion.

That case addressed a narrow question:    Did a "duly appointed"

administer ad litem have the capacity under the wrongful-death

act, § 6-5-410(a), Ala. Code 1975, to file a wrongful-death

action?7   I say "duly appointed" because the issue whether the

    7
     Although Affinity Hospital holds that an administrator
ad litem had the power to file a wrongful-death action, that
decision was not unprecedented, as the practice was noted in
numerous prior decisions: "There are several reported cases in
which it appears that an administrator ad litem, without
challenge, has filed a wrongful-death action. See, e.g., Ex
parte Sumter County, 953 So. 2d 1235 (Ala. 2006); Franks v.
Norfolk S. Ry., 679 So. 2d 214 (Ala. 1996); Fitts v. Minnesota
Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991); and Handley v.
Richards, 518 So. 2d 682, 683 (Ala. 1987) (Maddox, J.,
                                 46
1130385 and 1130403

administrator ad litem had initially been properly appointed

by the probate court was not a matter before the Court in

Affinity Hospital:

         "Trinity[8] also contends that an administrator
    ad litem can be appointed only in connection with an
    existing proceeding. Whether a proceeding must be
    pending or existing before an administrator ad litem
    can be appointed does not touch upon the issue
    presented in this case: Whether an administrator ad
    litem has the power, capacity, or authority to file
    a wrongful-death action under § 6-5-410. Instead,
    Trinity's argument challenges whether Williford was
    properly appointed in the first place.

         "However,  for   purposes   of  the   question,
    certified on this permissive appeal, the circuit
    court assumed that Williford was properly appointed
    as an administrator ad litem. Specifically, the
    circuit court's order certifying the question was
    based on the premise that Williford 'was duly
    appointed under Ala. Code [1975,] § 42-2-250 by the
    Jefferson County Probate Court as Administrator Ad
    Litem,' and the question it certified asks if 'the
    administrator ad litem' had 'the capacity to file
    this wrongful death suit ....' Trinity's issue is
    thus outside the scope of the questions certified in
    this case."



concurring specially)." Affinity Hosp., 21 So. 3d at 716.
See also Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So.
3d 365, 366 (Ala. 2012) (Bolin, J., concurring specially)
("The case that arguably created the practice of appointing an
administrator ad litem to file a wrongful-death action is
Franks v. Norfolk Southern Railway, 679 So. 2d 214 (1996).").
    8
     "Trinity" was a collective reference for Affinity
Hospital, L.L.C., d/b/a Trinity Medical Center, and David
Brittin, R.N.
                              47
1130385 and 1130403

Affinity Hosp., 21 So.3d at 718 n.4.            Affinity Hospital cannot

be read to speak to whether an administrator ad litem can be

properly appointed under § 43-2-250, Ala. Code 1975, to pursue

a   wrongful-death   action      in   the    first    place;   whether      the

appointment in that case met the criteria of § 43-2-250,

including issues as to whether an "existing" proceeding was

required and whether the estate needed representation, was not

addressed.

     That an administrator ad litem, properly appointed, may

file a wrongful-death action in no way confuses the issue

whether   a    probate   court    may      oversee   the   actions    of    the

"personal representative" in a wrongful-death action.                       The

probate court's attempts in the instant case to oversee the

distribution of the proceeds of the wrongful-death action

could   have    occurred   even    if      Bessie    Kirksey   had   been    an

administrator or executor.        Any purported mistakes or fraud in

the distribution of the proceeds could just have easily been

committed by an administrator or executor.                 Nothing in the

actual holding of Affinity Hospital contributed to the conduct

in the instant case.




                                      48
1130385, 1130403

MOORE, Chief Justice (concurring in the result in case no.

1130385 and dissenting in case no. 1130403).

    I concur with the conclusion of the main opinion that the

probate court lacked subject-matter jurisdiction to oversee

the wrongful-death settlement and the distribution of the

settlement proceeds. However, I concur in the result in case

no. 1130385 and dissent in case no. 1130403 because, pursuant

to § 12-22-20, Ala. Code 1975, I believe both cases are

properly before us on appeal from a "final decree of the

probate court, or from any final judgment, order or decree of

the probate judge." In my opinion, the Court, while correctly

identifying   the   jurisdictional   defect   in   the   probate

proceedings, unnecessarily treats the omitted heirs' cross-

appeal as a petition for the extraordinary writ of mandamus.

     The main opinion addresses as a threshold issue whether

the probate court's Rule 54(b), Ala. R. Civ. P., certification

of its November 25, 2013, order was proper. Having determined

that the order was not properly certified as a final order,

the main opinion goes on to treat the omitted heirs' cross-

appeal as a petition for a writ of mandamus. However, both

Bessie Kirksey and the omitted heirs expressly invoked this


                              49
1130385, 1130403

Court's   jurisdiction   to   hear       their   appeals     as     of   right

pursuant to § 12-22-20, Ala. Code 1975, not from a judgment

made final pursuant to Rule 54(b).

    Section 12-22-20 is an independent source of appellate

jurisdiction   that   does    not    depend      upon   a   trial    court's

certifying the challenged order as final under Rule 54(b).

Although an appeal from a Rule 54(b) order lies only if the

order "dispose[d] of at least one of a number of claims or one

of multiple parties," Ex parte Noland Hosp. Montgomery, LLC,

127 So. 3d 1160, 1165-66 (Ala. 2012), under § 12-22-20,

         "[a]n appeal lies to the circuit court or
    Supreme Court from any final decree of the probate
    court, or from any final judgment, order or decree of
    the probate judge; and, in all cases where it may of
    right be done, the appellate court shall render such
    decree, order or judgment as the probate court ought
    to have rendered."

(Emphasis added.) The main opinion attaches significance to

the probate court's Rule 54(b) certification of its November

25, 2013, order, when in fact, I believe the parties properly

invoked this Court's appellate jurisdiction under § 12-22-20,

Ala. Code 1975. Pursuant to that provision, I believe this

Court has jurisdiction to hear the parties' appeals, even if




                                    50
1130385, 1130403

the probate court had not certified its order as a final

judgment.

       In their September 25, 2013, motion, the omitted heirs

challenged the probate court's subject-matter jurisdiction and

asked the probate court to vacate its August 26, 2013, order

insofar    as   it   reopened    Willie     May   Graves's    estate    and

appointed the county administrator to preside over subsequent

proceedings. The procedural posture of this case                 closely

resembles that in Watts v. Town of Green Valley, 282 Ala. 555,

213 So. 2d 398 (1968). In Watts, a probate court exercised its

special statutory jurisdiction to order that an election be

held    among   residents   of   a   town   to    determine   whether    to

incorporate the town. Watts then moved the probate court to

set aside its order on the ground that the court lacked

subject-matter jurisdiction to issue the order. The alleged

jurisdictional defect resulted from the fact that one of four

individuals who had signed the petition to incorporate the

town was not a qualified elector, as required by statute. The

probate court determined that it had jurisdiction, and Watts

appealed to this Court.




                                     51
1130385, 1130403

    This Court reversed the order of the probate court on the

ground that the disqualification of the signatory deprived the

probate   court   of   jurisdiction   over   the   proceeding.   Our

reasoning and holding bears reiterating because I believe it

applies with equal force to the instant case:

         "Here, there was a [d]irect attack on the
    validity of the decrees, which direct attack
    questioned the jurisdiction of the court to render
    such decrees, and moved the court that they be
    vacated. Such direct attack was filed in the court
    that rendered the decrees. The alleged facts recited
    in the decree, or decrees, as to the jurisdiction of
    the court, was contradicted by primary records in the
    proceeding, and disclosed the lack of jurisdiction on
    the part of the court ....

          "....

         "The  question   of  jurisdiction   is  always
    fundamental and is a question of primary importance
    in every case, and if there is an absence of
    jurisdiction over subject matter, it is fatal. ...

          "....

         "...[A]n absence of jurisdiction was shown
    because one of the necessary condition precedents
    establishing such jurisdiction was proven to be not
    existing. ...

         "Here, if the subject matter before the probate
    court was an ordinary power vesting in the court
    without being dependent upon a special statute ...
    the rule relative to jurisdictional matters before
    the court may have been different. ...




                                52
1130385, 1130403

         "However, the power vested in the probate court
    ... was not an ordinary or general power vested in
    the court, but was a special limited or statutory
    power being exercised by a court of limited
    jurisdiction. ...

         "Here, the judicial act of the probate court in
    deciding it had jurisdiction was an erroneous
    conclusion in view of the facts before the court on
    direct attack of the court's decrees. Viewing the
    record of the probate court proceedings, it is clear
    from such record now before this court by transcript
    and bill of exceptions, that the court was without
    authority to enter its decrees from which rulings of
    that court this appeal was taken.

         "When the evidence clearly established lack of
    jurisdiction over the subject matter, the proceedings
    should have ended for they were void. ...

         "No issue has been raised as to the propriety of
    the motions to vacate the probate court's decrees
    from a procedural standpoint. However, we think such
    motions were proper procedure, and the court had the
    power to vacate its decrees on motion. An appeal is
    the proper remedy where the trial court fails to
    vacate a void decree. Doby v. Carroll, 274 Ala. 273,
    147 So. 2d 803 [(1962)]; McDonald v. Lyle, 270 Ala.
    715, 121 So. 2d 885 [(1960)].

         "It therefore follows that the probate court
    should have granted the motions seeking to vacate its
    decrees, such decrees being void for lack of
    jurisdiction on the part of the court."

282 Ala. at 559-62, 213 So. 2d at 402-04 (all but first

emphasis added).

    Additionally, in McDonald v. Lyle, 274 Ala. 273, 121 So.

2d 885 (1960), we declared that when a trial court issues a

                             53
1130385, 1130403

judgment that is void for lack of subject-matter jurisdiction

and fails   to    vacate that void judgment on motion of an

interested party, the appropriate remedy is an appeal. Thus,

under § 12-22-20, Ala. Code 1975, "an appeal is the proper

remedy where the probate court fails to vacate an allegedly

void judgment. Therefore, an appeal, not a petition for a writ

of mandamus, provides [the petitioners] the proper mode for

attacking   the    probate   court's   judgment.   Mandamus   is   an

extraordinary writ, and [the petitioners] cannot use it as a

substitute for an appeal." Ex parte Town of Valley Grande, 885

So. 2d 768, 771 (Ala. 2003)(emphasis added).

     Because the probate court's November 25, 2013, order,

like the orders in Watts and Town of Valley Grande, failed to

vacate its allegedly void order of August 26, 2013, I believe

that order was directly appealable under § 12-22-20, Ala. Code

1975. The probate court lacked subject-matter jurisdiction to

oversee the settlement of the wrongful-death action and the

distribution      of   the   wrongful-death-settlement   proceeds.

Therefore, "every order and judgment entered in this case

[with respect to that issue] was void, including the judgments

from which this appeal was taken. A void judgment will not


                                  54
1130385, 1130403

support an appeal." Bernals, Inc. v. Kessler-Greystone, LLC,

70 So. 3d 315, 321 (Ala. 2011)(vacating a default judgment and

dismissing an appeal from that and other orders, on the ground

that the trial court lacked jurisdiction to hear the case).

Section 12-22-20 instructs us, when hearing an appeal, to

"render such ... order or judgment as the probate court ought

to have rendered." Therefore, I believe we should dismiss both

Bessie Kirksey's appeal and the omitted heirs' cross-appeal,

vacate the probate court's orders of August 26, 2013, and

November 25, 2013, direct the probate court to dismiss the

interpleader action, and hold that the language of the probate

court's   May   4,   2012,   order    approving   the   wrongful-death

settlement and ordering the distribution of the proceeds is of

no effect.




                                     55
