Timothy Brian Johnson and Phillip Barnes v. Judith Mayers

Rel: June 27, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2025-0297
_________________________

Timothy Brian Johnson and Phillip Barnes

v.

Judith Mayers

Appeal from Lamar Circuit Court
(CV-24-8)

SELLERS, Justice.
SC-2025-0297

Timothy Brian Johnson and Phillip Barnes, who are the nephews

of Samuel D. Johnson, deceased, appeal from a judgment of the Lamar

Circuit Court ("the circuit court") declaring that § 43-8-224, Ala. Code

1975, Alabama's antilapse statute, does not apply to Johnson's will and

that, therefore, Judith Mayers is the sole beneficiary under the will. We

affirm.

I. Facts

Johnson ("the testator") executed a will in October 1990. Article

II of the will provides:

"I give, devise and bequeath, absolutely and forever, all of the
property owned by me at the time of my death, real and
personal, of whatever kind and character, and wherever
situated, to [my father] Coy D. Johnson. In the event that
such person does not survive me, then I give, devise and
bequeath absolutely and forever my said residual estate
equally to [my siblings] Roger D. Johnson, Denny R. Johnson,
Judith A. Mayers, and Janice M. Barnes. If none of such
persons shall survive me, then the same shall pass to my
nearest living heirs. Reference to 'heirs' means those persons
other than creditors who would take my property under the
laws of the State of Alabama in force at the time of my death
if I had died intestate, unmarried and domiciled in such
state."

(Emphasis added.)

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The testator died in July 2022; Mayers was the only named

beneficiary in the will who survived him. In December 2022, the Lamar

Probate Court ("the probate court") entered an order admitting the will

to probate and issuing letters of administration cum testamento annexo

to Mayers.1 At Mayers's request, the circuit court removed the

administration of the testator's estate from the probate court to the

circuit court pursuant to § 12-11-41, Ala. Code 1975.2 While the

administration of the estate was pending in the circuit court, Mayers, in

her capacity as the administratrix cum testamento annexo of the estate

and individually as a named beneficiary under the will, petitioned the

circuit court for an order construing the will. Mayers specifically sought

1The will named Roger Johnson or, alternatively, Denny Johnson

as the executor of the will; both predeceased the testator. See § 43-2-27,
Ala. Code 1975 ("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 .…").

2Section 12-11-41, Ala. Code 1975 provides, in relevant part, that

"[t]he administration of any estate may be removed from the probate
court to the circuit court at any time before a final settlement thereof …."

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a judgment declaring that the antilapse statute did not apply to the

testator's will and that, therefore, she was the sole beneficiary under the

terms of the will. The circuit court entered a judgment finding that the

will was unambiguous, that the antilapse statute did not apply to the

will, and that Mayers was the sole beneficiary under the terms of the will.

This appeal followed.

II. Standard of Review

We review a trial court's construction of a will under a de novo

standard of review. Harrison v. Morrow, 977 So. 2d 457, 459 (Ala. 2007).

III. Jurisdiction

Initially, we address Mayers's contention that the judgment of the

circuit court construing the will is not a final judgment capable of

supporting an appeal because, she says, there has been no final

settlement of the estate administration and the circuit court did not

certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

Section 12-22-20, Ala. Code 1975, provides, in relevant part, that "[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

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probate judge." Here, Mayers petitioned the circuit court for construction

of the will pursuant to § 6-6-225(3), Ala. Code 1975, which authorizes an

administrator to seek a declaration of rights "[t]o determine any question

arising in the administration of the estate …, including questions of

construction of wills and other writings." Section 6-6-222, Ala. Code

1975, provides, in relevant part, that "[c]ourts of record … shall have

power to declare rights, status, and other legal relations whether or not

further relief is or could be claimed" and that "[t]he declaration may be

either affirmative or negative in form and effect, and such declarations

shall have the force and effect of a final judgment." See also § 6-6-221,

Ala. Code 1975 (providing that the purpose of the Declaratory Judgment

Act, § 6-6-220 et seq., Ala. Code 1975, "is to settle and to afford relief from

uncertainty and insecurity with respects to rights, status, and other legal

relations and is to be liberally construed and administered"), and

Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995) ("An appeal will

ordinarily lie only from a final judgment; that is, a judgment that

conclusively determines the issues before the court and ascertains and

declares the rights of the parties."). Here, the circuit-court judgment

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completely disposed of every issue raised by Mayers in her petition; it

declared that the antilapse statute did not apply to the testator's will and

that Mayers was the sole beneficiary under the terms of the will. Unlike

in general civil cases, an order entered in a probate proceeding may be

considered final although it does not dispose of the entire probate

proceeding. See Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App. 2000)

("A probate proceeding consists of a continuing series of events, in which

the probate court may make decisions at various points in the

administration of the estate on which later decisions will be based. The

need to review controlling, intermediate decisions before an error can

harm later phases of the proceeding has been held to justify modifying

the [final-judgment] rule."). In this case, a final settlement of the estate

administration is dependent on the proper identification of the heirs of

the estate. See McKenzie v. Jenson, 212 Ala. 92, 95, 101 So. 755, 757

(1924) ("An administrator holds an estate in trust for those entitled

thereto. A part of his duty is to ascertain who is the rightful beneficiary

of the estate in his hands, and to see that it goes to such beneficiary

without needless delay nor diminution."). Thus, a declaratory judgment

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entered during the administration of an estate that conclusively

determines the issues before a probate or circuit court is a final,

appealable judgment under § 12-22-20, and a Rule 54(b) certification is

unnecessary. See, e.g., Kirksey v. Johnson, 166 So. 3d 633, 653 (Ala.

2014) (Moore, C.J., concurring in the result in case no. 1130385 and

dissenting in case no. 1130403) (stating his belief that the appellants had

"invoked this Court's jurisdiction to hear their appeals as of right

pursuant to § 12-22-20, Ala. Code 1975," and that § 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)[,

Ala. R. Civ. P.])." Notably, this Court has exercised jurisdiction over

appeals from probate-court orders involving declaratory judgments

concerning the antilapse statute and who was entitled to take under a

decedent's will, although our decisions in those cases did not discuss

jurisdiction and the orders appealed from were not certified as final

pursuant to Rule 54(b). See Norwood v. Barclay, 298 So. 3d 1051 (Ala.

2019) (reversing order of probate court, entered during the

administration of an estate, declaring that the antilapse statute did not

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apply to the decedent's will and that decedent's nieces were therefore not

entitled to any part of the estate), and Shirley v. Dawkins, 369 So. 3d 127

(Ala. 2022) (reversing order of probate court, entered during the

administration of an estate, declaring that antilapse statute did not apply

and that the testator's grandson was therefore not entitled to inherit

under the decedent's will). Finally, although § 12-22-20 references final

orders of the probate court and does not specifically provide a right to

appeal from similar orders of the circuit court, this Court has

" 'traditionally treated such orders of the circuit court as though they

were orders of the probate court.' " Player v. J.C., 299 So. 3d 945, 949

(Ala. 2020) (quoting Tate v. Kennedy, 578 So. 2d 1079, 1080 n. 2 (Ala.

1991)). We conclude that we have appellate jurisdiction over the circuit-

court judgment entered in this case because the judgment resolves all the

claims raised by Mayers in her petition, making the judgment final and

appealable. Dow, 659 So. 2d at 113.

IV. Discussion

The dispositive issue on appeal is whether the circuit court erred in

concluding that the antilapse statute does not apply in this case and that,

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therefore, Mayers is the sole beneficiary under the terms of the testator's

will. Section 43-8-222, Ala. Code 1975, provides that "[t]he intention of a

testator as expressed in his will controls the legal effect of his

dispositions. The rules of construction expressed in the succeeding

sections of this article [i.e., Title 43, Chapter 8, Article 8, which includes

§ 43-8-224, the antilapse statute,] apply unless a contrary intention is

indicated by the will." The antilapse statute, § 43-8-224, provides:

"If a devisee who is a grandparent or a lineal descendant
of a grandparent of the testator is dead at the time of
execution of the will, fails to survive the testator, or is treated
as if he predeceased the testator, the issue of the deceased
devisee who survive the testator by five days take in place of
the deceased devisee and if they are all of the same degree of
kinship to the devisee they take equally, but if of unequal
degree then those of more remote degree take by
representation. One who would have been a devisee under a
class gift if he had survived the testator is treated as a devisee
for purposes of this section whether his death occurred before
or after the execution of the will."

The antilapse statute is a default provision that can be overridden

by a testator's will. It operates as a rule of construction, designed to carry

out the presumed intent of a testator in the event a beneficiary

predeceases the testator. Wills stand against any notion of immortality

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and devises in a will to individuals should anticipate the possibility that

a named beneficiary may not survive the testator. In this case, the

operative will was executed 32 years before the testator's death, and, at

the time of his death, several named beneficiaries were not alive. So, if

a will fails to require survivorship and to provide for a contingency should

a beneficiary predecease the testator, the antilapse statute preserves a

devise to benefit family members and to prevent a devise from passing

pursuant to the laws of descent and distribution, which may result in

property not passing to the natural objects of a testator's bounty. Thus,

when the above statutes are read together, it is apparent that the

antilapse statute would apply only if a testator fails to require

survivorship and to name contingent beneficiaries to receive a devise.

Here, pursuant to Article II of the will, the testator left his entire estate

to his father, Coy Johnson. In the event that Coy predeceased him (which

did in fact occur), the will provided that the residue of the estate would

be divided "equally" among his siblings, Roger Johnson, Denny Johnson,

Mayers, and Janice Barnes. Finally, the will provided that, if "none of

such persons shall survive me, then the same shall pass to my nearest

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living heirs." Mayers is the only named beneficiary under the will who

survived the testator. The nephews, who are issue of the testator's

deceased siblings, contend that the use of the term "equally" evinces an

intent that each of the beneficiaries would inherit a one-fourth share of

the residuary estate and that, pursuant to the antilapse statute, they

are entitled to inherit under the will through representation. However,

that is not the case in situations where, as here, the will includes

language of survivorship3 reflecting the testator's intent to limit any

testamentary gift to only those named beneficiaries who survive the

testator, therefore defeating application of the antilapse statute. 4 The

3See Belardo v. Belardo, 187 Ohio App. 3d 9, 15, 930 N.E.2d 862,

866 (2010) (noting that there are "no certain or exact words of
survivorship to indicate intent to avoid the [antilapse] statute").

4Although it does not appear that this Court has directly addressed

the issue whether the use of survivorship language in a will defeats
application of the antilapse statute, the majority of courts in other
jurisdictions that have addressed the issue have reached the same result.
See, e.g., Polen v. Baker, 92 Ohio St. 3d 563, 567 n. 2, 752 N.E.2d 258,
261 n. 2 (2001) (citing cases from various jurisdictions holding that
survivorship language in a will defeats application of the antilapse
statute). In Polen, the Supreme Court of Ohio specifically concluded that,
through the use of "words of survivorship," the testator had evidenced an

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will also includes an alternative-devise provision in the event that all the

named beneficiaries failed to survive the testator, thus further evincing

an intent that the antilapse statute not apply in this case. See, e.g.,

Ruotolo v. Tietjen, 93 Conn. App. 432, 446, 890 A.2d 166, 175 (2006)

(noting that the use of an alternative devise in a will indicates an intent

on the part of the testator to avoid application of the antilapse statute,

thus overriding the antilapse statute). Specifically, the will provides that

the testator's residuary estate will be divided equally between four

named beneficiaries, specifically indicating that, if "none of such persons

shall survive me, then the same shall pass to my nearest living heirs."

The clear meaning here is that only if all four of the named beneficiaries

predeceased the testator could the residuary estate devolve to the

"nearest leaving heirs." So long as one of the named beneficiaries

survived the testator, the residuary estate would be equally distributed

intent to avoid application of the antilapse statute and to provide for a
per capita distribution to the surviving named beneficiaries, with each
surviving beneficiary to take "an absolute, or unencumbered, respective
share." 92 Ohio St. 3d at 568, 752 N.E.2d at 262.

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to those persons specifically named who were alive at the testator's death.

Because Mayers was the only named survivor, she is entitled to inherit

the entire residuary estate. 5

5The nephews rely heavily on Norwood v. Barclay, 298 So. 3d 1051

(Ala. 2019), and Shirley v. Dawkins, 369 So. 3d 127 (Ala. 2022), in support
of their contention that the antilapse statute applies in this case. Those
cases are distinguishable, however, because the wills at issue therein did
not include "survivorship" language, nor did they provide for an
alternative disposition of property in the event that the testator failed to
anticipate the early death of either the sole beneficiary of an estate or a
beneficiary designated to share property equally with another
beneficiary. In Norwood, this Court explained that the testator had
executed a will that left her entire estate to her sister, that the sister had
predeceased the testator, that the testator had made no provision for that
contingency, and that the testator's nieces were therefore entitled to take
the sister's share of the estate under the antilapse statute. In Shirley, the
testator had executed a will that left his entire estate to his wife and, if
she predeceased him (which did in fact occur), to his two children, Donald
and Deborah in equal shares, to share and share alike. We explained
that Donald had predeceased the testator; that the testator's will had
failed to provide for an alternate distribution in the event of the early
death of Donald; that the testator's will gave no indication that the
antilapse statute should not apply; and that Donald's issue were
therefore entitled to take under the will pursuant to the antilapse
statute. Here, the will at issue not only contains survivorship language
reflecting an intent that only the named beneficiaries who survive the
testator will take under the will, but it also includes an alternative devise
in the event that none of those beneficiaries survive the testator.

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Based on the foregoing, we find that the testator's intent regarding

who was entitled to inherit his residuary estate can be ascertained from

the clear and unambiguous language of the will. He designated his

beneficiaries by name and included words of survivorship relating to

them. He further provided an alternative devise in the event that none

of the named beneficiaries survived him. Thus, the language used

manifests an intent on the part of the testator to defeat the application

of the antilapse statute. To find otherwise would undermine the

intention of the testator as expressed in the will.

V. Conclusion

The judgment of the circuit court, finding that the antilapse statute

does not apply in this case and that Mayers, therefore, is the sole

beneficiary under the terms of the testator's will, is affirmed.

AFFIRMED.

Stewart, C.J., and Wise, Bryan, Mendheim, Cook, McCool, and

Lewis, JJ., concur.

Shaw, J., concurs in the result.

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