author:
MADDOX, Retired Justice.
      JOHNSTONE, Justice HARWOOD, Justice

text:
    Robert CROWL v. KAYO OIL COMPANY.
    1002058.
    Supreme Court of Alabama.
    Oct. 18, 2002.

      Michael E. Auffenorde of Auffenorde & Auffenorde, P.C., Huntsville, for appellant.
    D. Edward Starnes III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   MADDOX, Retired Justice.

The dispositive issue on this appeal, involving a premises-liability question, is whether the plaintiff, whose complaint asserted claims against several fictitiously named defendants, as permitted by Rule 9(h), Ala. R. Civ. P., exercised “due diligence” to ascertain the name of the appel-lee in this case, Kayo Oil Company (“Kayo”), so that Kayo could be substituted as a defendant and the substitution of Kayo as a defendant would relate back to the date of the filing of the original complaint under the provisions of Rule 15(c), Ala. R. Civ. P.

The trial court granted a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss filed by Kayo, and because the trial court considered matters outside the pleadings in ruling on Kayo’s motion to dismiss, we treat Kayo’s motion as a motion for a summary judgment. The judgment was made final by the trial court pursuant to Rule 54(b), Ala. R. Civ. P.; claims against Conoco, Inc., are still pending in the trial court. After carefully considering the arguments of the parties, we find that the trial court did not err in holding that Crowl did not exercise “due diligence” in determining the identity of the fictitiously named defendant; therefore, we affirm the judgment of the trial court.

Facts and Procedural History

On September 11, 1997, Robert Crowl slipped and was injured at a gasoline service station located at 800 Oakwood Avenue in Huntsville. On August 31, 1999, shortly before the two-year statute of limitations for his cause of action would have run, Crowl sued Conoco, Inc., and six fictitiously named defendants, alleging that they had negligently and wantonly failed to maintain the parking lot of the service station. On September 21, 1999, service was attempted by leaving a copy of the summons and complaint and a set of interrogatories at the service station at 800 Oakwood Avenue. On November 17, 1999, Crowl filed an application for the entry of default with a supporting affidavit. On April 10, 2000, the trial court entered a default judgment against Conoco, Inc., in the amount of $200,000 together with costs.

On April 6, 2001, Conoco, Inc., filed an answer to the complaint and a Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment, with supporting affidavits attached. In its Rule 60(b) motion, Conoco, Inc., alleged that the judgment entered on April 10, 2000, was void, and was due to be set aside, because, it said, it did not perform business operations at the service station; it had no ownership interest in the business or real property at the service station; no agent appointed to receive service of process on behalf of Cono-co, Inc., was at the station on September 21, 1999, and it had received no notice that an action had been filed. In addition, Co-noco, Inc., identified Kayo as the owner of the service station at the time the plaintiff was injured. The motion and affidavits state that Conoco, Inc., and Kayo both first learned of the action on March 19, 2001.

On April 27, 2001, the trial court vacated the judgment it had previously entered against Conoco, Inc.

The trial court, in its order setting aside the default judgment, stated only that “[t]he Court, having considered Defendant Conoco, Inc.’s motion to set aside a default judgment entered by the Court on April 10, 2000, finds that the motion is due to be granted.”

We note that in its motion to set aside the default judgment, Conoco, Inc., cited this Court’s cases of Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983), and Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993)(“One of the requisites of personal jurisdiction over a defendant is ‘perfected service of process giving notice to the defendant of the suit being brought’ [quoting Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d at 884] .... A judgment rendered against a defendant in the absence of personal jurisdiction over the defendant is void.”), and Rule 4(c)(6), Ala. R. Civ. P., which provides the manner in which a corporation may be served. In its motion, Conoco, Inc., stated:

“5. Simply leaving the summons and complaint at a location where Conoco branded gasoline is sold is not proper service on Conoco Inc. It is undisputed that no agent authorized by appointment or by law to receive service of process on behalf of Conoco Inc. was present at 800 Oakwood Avenue on September 21, 1999. Exhibit 2. Likewise, 800 Oakwood Avenue is not a usual place of business of Conoco Inc., and no agent of Conoco Inc. was present at 800 Oakwood Avenue on September 21, 1999. The act of leaving the summons and complaint at 800 Oakwood Avenue with an unknown individual does not satisfy Rule [4(c)(6)].”

In its motion to set aside the default judgment, Conoco, Inc., citing Wright v. Rogers, 435 So.2d 90, 91 (Ala.Civ.App.1983), also alleged that “[i]n Alabama, ‘[s]trict compliance with the Rules of Civil Procedure regarding service of process is required.’ ” Conoco, Inc., also cited other Alabama and federal cases in which courts held that service of process of an individual connected with or employed by a corporation did not constitute proper service on the corporation.

On May 3, 2001, Crowl filed an amended complaint substituting Kayo as a defendant for the entities originally identified as fictitiously named parties 1, 2, 3, 4, and 5 in the original complaint.

On June 6, 2001, Kayo filed a motion to dismiss and a brief in support of the motion with attached exhibits and affidavits. Kayo argued that Crowl’s claims against it were barred by the two-year statute of limitations. In its motion to dismiss, Kayo pointed out that Crowl’s amended complaint substituting Kayo for fictitiously named parties was filed in May 2001, over three and one-half years following the accident. Kayo argued in the trial court, and argues to this Court, that the substitution of Kayo for fictitiously named parties should not be allowed to relate back to the date of the filing of the original complaint because, it says, Crowl cannot show that he was ignorant of the true identity of the fictitiously named defendant and that he used due diligence in attempting to discover it. Kayo attached to the motion the affidavit of Charles E. Haygood, the city clerk/treasurer for the City of Huntsville, who stated that his office keeps a listing of current holders of business licenses in the City of Huntsville. He stated in the affidavit that “[i]f a citizen calls and provides the name and address of a business in Huntsville, our office is capable of providing them with the name of the entity which holds the business license.” He further stated that in 1997 and 1998 Kayo was the holder of the business license for the gasoline service station located at 800 Oakwood Avenue. Also attached to the motion was a letter from Wayland Cooley, tax assessor for Madison County, and certified copies of property tax records relating to the property in question.

I.

Because we treat this appeal as an appeal from a summary judgment, we first state our standard of review. Recently, in Rosen v. Montgomery Surgical Center, 825 So.2d 735 (Ala.2001), this Court stated:

“Our review of a summary judgment is de novo.
“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’
“Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).”

825 So.2d at 737 .

II.

The dispositive issue on this appeal is whether Crowl exercised “due diligence” in ascertaining that Kayo was one of the fictitiously named defendants in his original complaint, as required by the provisions of Rule 9(h), Ala. R. Civ. P., which states:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c), Ala. R. Civ. P., provides that “[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”

Crowl argues that he exercised “due diligence” in discovering Kayo’s identity. In his reply brief to this Court, Crowl’s counsel states:

“The correct standard is not whether Crowl discovered the identity of Kayo Oil Company before or after the statute ran or before or after the suit was filed, but rather if [Crowl] utilized due diligence in identifying Conoco, Inc. as a defendant and then in discovering the identity [of] any other potential defendant against whom it has a cause of action after suit has been filed. ... Mr. Crowl had no knowledge of a cause of action against Kayo Oil Company until Conoco, Inc. filed affidavits from the Senior Director and President of Kayo Oil Company, William R. Glover[,] stating that Kayo conducted ‘business operations’ at the gas station. [Kayo] does not deny in its brief that at the time he was injured, Mr. Crowl stopped at a Conoco gas station. The gas station provides with prominent signage that it is a Conoco gas station. Conoco, Inc. advertises itself in the phone directory as doing business at 800 Oakwood Avenue. Kayo Oil Company provides no identification of its identity at the premises or in the phone directory.
“Kayo Oil Company does not deny that Mr. Crowl was ignorant of its identity. Since Kayo Oil Company has made no argument that Mr. Crowl was aware of its identity, the issue is whether [Crowl] used due diligence in attempting to discover its identity.”

(Crowl’s reply brief, pp. 5-6.) Crowl further states in his brief:

“Here, Mr. Crowl instituted discovery which would have identified any other potential defendants at the time of the filing of his lawsuit. This is sufficient under [the law] to meet the requirements of due diligence. After Conoco, Inc. defaulted, Mr. Crowl was unable to pursue further discovery against them because of the defaulting defendant which appeared to refuse to respond. [Kayo] has cited no authority to this Court imposing an additional duty of discovery when a defendant has failed or refused to respond to a complaint. In fact, by its very nature, a defendant prevents such discovery. Although it was later determined that, despite the request of Mr. Crowl to serve the summons by certified mail, the clerk’s office used Sheriffs service and the default judgment was set aside. However, this is not the same as failing to use due diligence.”

(Crowl’s reply brief, p. 9.)

We note that Crowl, in response to the motion to dismiss, attached copies of pages from the Huntsville telephone book for the years 1997 to 2001, both from the “white pages” and the “yellow pages”; these copies show that Conoco was listed as operating'a gasoline service station at 800 Oak-wood Avenue, Huntsville, Alabama, and that Kayo was not listed. In addition, Crowl attached photographs of the station located at 800 Oakwood Avenue, which clearly show “Conoco” signs on the property. In his response to Kayo’s motion to dismiss, Crowl stated:

“The record before [the trial court] indicates that [Crowl] proceeded with reasonable diligence, instituting discovery to be served upon the named defendant [Conoco, Inc.,] with a summons and complaint. The failure of any of the served parties to respond, not the failure of [Crowl] to exercise due diligence, is responsible for any delay presented to the Court. As was pointed out by [Co-noco’s] counsel in its Motion to set Aside the Default Judgment, which included a supporting affidavit provided by this defendant [Kayo], [Kayo] sold gasoline at the location where [Crowl] was caused to be injured. No other trade name was provided or information revealed to [Crowl] indicating that the named defendant [Conoco, Inc.,] was not the proper party. The length of time from the filing of the complaint to the substitution of the fictitious party defendants was due to the default to the initial lawsuit. No other case has been cited to this court by [Kayo] which would indicate that there was any additional duty when a defendant has failed or refused to respond and a default has been entered.”

Kayo argues that Crowl could have made a simple telephone call to the office of the tax assessor for Madison County or that he could have examined the property tax records for the property in question and found that the property was assessed for tax purposes in Kayo’s name. Kayo also says that Crowl could have checked with the City of Huntsville and determined the name of the entity that held the business license on the property at which he was injured at the time he was injured. It should be noted that this is a premises-liability suit and that Crowl, in his complaint, described fictitiously named defendant no. 1 as “that entity or those entities who or which are owners of premises located at 800 Oakwood Avenue, NE, Huntsville, Alabama.” Kayo further argues that the record does not show that Crowl did anything, much less that he exercised due diligence, to determine its identity.

This Court, in Fulmer v. Clark Equipment Co., 654 So.2d 45, 46 (Ala.1995), discussed the question presented to us. In that case we stated:

“Rule 9(h) and Rule 15(c), Ala. R. Civ. P., allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted. Such a substitution is allowed to relate back to the date of the original complaint if the original complaint adequately described the fictitiously named defendant and stated a claim against such a defendant. In order for the substitution to relate back, the plaintiff must have been ignorant of the true identity of the defendant and must have used due diligence in attempting to discover it. Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992).”

We agree with Kayo’s argument that Crowl did not exercise “due diligence” to discover its identity as one of the fictitiously named defendants in Crowl’s complaint. In his complaint Crowl described fictitiously named defendant no. 1 as follows: “[Wjhether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which are owners of premises located at 800 Oakwood Avenue, NE, Huntsville, Alabama.” The record in this case shows that had Crowl examined the property tax records for that property, he would have found that the property had been assessed in Kayo’s name.

This Court, in Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992), held that the plaintiff, who had been injured by a blower fan, had not exercised due diligence in determining the identity of a fictitiously named defendant when the plaintiff failed to timely inspect the fan (which had the defendant’s name stamped on an identification plate). This Court stated:

“Jones bases much of his argument on the assertion that USX [the owner of the plant at which Jones was employed] refused access to the fan and, to avoid a court-ordered inspection, named Baltimore Aircoil as the manufacturer. It is relevant to the question of due diligence that an inspection of the fan would almost certainly be necessary to maintain the product liability action against any defendant. If Jones’s assertions that USX refused access are true, then due diligence would have required an attempt to obtain a court-ordered inspection. The injury occurred on July 1, 1988, and the complaint was filed on May 21, 1990. Jones himself was given access to the fan, apparently in January or February 1991, but there apparently was no effort, after USX’s pre-complaint refusal of access, to gain access for an inspection by his attorney or any safety expert. These failures throughout 1990 (and earlier) to inspect the fan in regard to either its manufacturer or its safety features were made more critical by Baltimore Aircoil’s answer on July 3, 1990, and especially by its motion for summary judgment filed in December 1990. When Jones did begin efforts in 1991 to determine the true manufacturer, his efforts were sporadic and ineffectual, and he did not amend to state a claim against the true manufacturer until September 17,1991.
“Therefore, the trial court correctly held that the amendment substituting Resorcon, Inc., does not relate back to the date of the original complaint and that the action against Resorcon is barred by the statute of limitations.”

604 So.2d at 373-74. In Bowen v. Cummings, 517 So.2d 617 (Ala.1987), this Court stated:

“First, as this Court stated in Threadgill v. Birmingham Bd. of Ed., 407 So.2d 129 (Ala.1981):
“ ‘[T]he fictitious party provision of Rule 9(h), [Ala. R. Civ. P.], is intended to operate principally in the area of emergency cases where neither the name nor the identity of the defendant is known, as where the cause of action is known but the party liable is not, and there is urgent need to get service of process upon the party against whom the plaintiff has an action, or there is need for immediate seizure of property.’
407 So.2d at 132. Fictitious party practice should not be abused, and it was not intended for use whenever it is merely inconvenient for the plaintiff to learn the name of the true defendant.
“ ‘Rule 9(h) is not intended to give plaintiffs additional time beyond the statutorily prescribed period within which to formulate causes of action. Instead, the principal reason for the rule is to toll the statute of limitations in emergency cases where plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity. Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978).’
“Columbia Eng’g Int’l, Ltdfv. Espey, 429 So.2d [955] at 959 [(Ala.1983)]. (Emphasis added [in Bowen ].)
“It is clear from the record that the only effort plaintiff made to get the hospital records came four months before the suit was filed, and this effort was unsuccessful. Likewise, the record is clear that plaintiffs attorney never attempted to discover the medical records, although he had written authorization from the plaintiff to do so. Rule 9(h) was not meant to allow a party to sit back for almost two years and make only one attempt at learning the defendant’s name, and then, failing, simply to list fictitious defendants. This would work a substantial injustice to the defendant and would violate the purpose behind our discovery statutes and our statutes of limitations.”

517 So.2d at 618. In Kinard v. C.A. Kelly & Co., 468 So.2d 133 (Ala.1985), this Court held that a plaintiffs substitution for fictitiously named defendants did not relate back because of the plaintiffs delay in attempting to discover the identity of the defendants. This Court stated:

“The diligent plaintiff who is truly ignorant of the defendant’s identity at the time of filing the original complaint is not penalized. The recalcitrant plaintiff cannot, however, use [Rule 9(h)] to gain what might otherwise amount to an open-ended statute of limitations. We opine that the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant’s true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.
“In this case the plaintiff was injured on August 12, 1979. She filed her action on August 8, 1980, but did not propound interrogatories in an attempt to determine the true identities of the owners until January of 1983. In our opinion, the plaintiff did not act reasonably in waiting for that length of time before attempting to determine the defendants’ identities. She should not be allowed, therefore, to substitute them for the fictitious parties named in the complaint.”

468 So.2d at 135-36.

Crowl insists that he exercised due diligence; in support of his position he cites Roberts v. Cochran, 656 So.2d 353 (Ala.1995). In Roberts, this Court held that the plaintiffs amendment did relate back to the date of the filing of the original complaint, where the plaintiff learned information implicating the new defendant in a deposition taken a year after the statutory period of limitations had run. This Court stated:

“After having difficulty in locating Fields and serving him with the complaint, Roberts took Fields’s deposition on November 19,1993. ...
“... Although Roberts was aware that Cochran had a duty to operate her automobile so as not to willfully or wantonly injure her, this knowledge, without additional information suggesting a breach of that duty, was insufficient to require Roberts to name Cochran as a defendant before November 19, 1993, when she learned during Fields’s deposition that Cochran might have applied her emergency brake instead of her regular brakes. Rule 9(h) was not intended to excuse ignorance of the fact of a cause of action, but it was intended to excuse ignorance of the name of the party against whom a cause of action is stated. Roberts had no information before November 19,1993, that would have indicated that she had a cause of action against Cochran, and it is the public policy of this state that civil actions are not to be commenced without ‘substantial justification.’ See Ala.Code 1975, § 12-19-270 et seq. (‘The Alabama Litigation Accountability Act’), which sets forth certain penalties to be assessed against attorneys and/or parties who file civil claims that lack ‘substantial justification,’ i.e., that are ‘frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation.’ Section 12-19-271(1).”

656 So.2d at 354-55. Although the time periods in question are indeed similar, the plaintiff in Roberts did attempt to serve and depose Fields, who provided the information necessary to determine the identity of the fictitiously named defendant. In addition, the plaintiff originally lacked information that would have required her to name Cochran as a defendant.

In this case, Crowl was injured on September 11, 1997. The statute of limitations for any injury to a person not arising from contract is two years. § 6-2-38, Ala. Code 1975. On August 31, 1999, the plaintiff sued Conoco, Inc., alleging negligence and wantonness. The last day to file an action in this case would be on September 11, 1999. A copy of the summons and complaint and interrogatories were left at 800 Oakwood Avenue on September 21, 1999. Although Crowl filed an application for the entry of default and secured a default judgment against Conoco, Inc., on April 10, 2000, the record is devoid of any evidence of any effort whatsoever on Crowl’s part to learn the names of the fictitiously named defendants, although that information could have been obtained from public records or simply by going to the service station where he was injured and asking the manager who owned or leased the property. It appears from the record and from the evidence that Crowl did nothing other than rely on the fact that Conoco owned and operated the gasoline service station because Conoco brand gasoline was sold there, which fact was confirmed by Conoco’s listing in the white pages and the yellow pages of telephone directories. It was only after Conoco, Inc., moved the court to set aside the default judgment over a year after it had been entered that Crowl learned that Kayo owned and operated the gasoline service station where he was injured. In Jones v. Resorcon, this Court placed a duty on the plaintiff to inspect the fan. In determining the identity of Kayo as one of the fictitiously named defendants in this case, Crowl could have inspected the tax records to determine who owned or leased the property, or he could have inquired of the managers or employees at the Conoco station as to who owned or leased the property.

Crowl’s basic argument seems to be that his lack of knowledge of Kayo’s identity resulted from the failure of Conoco, Inc., to answer the interrogatories attached to his complaint, but Rule 9(h) places the duty upon the plaintiff to exercise “due diligence” to identify a fictitiously named defendant.

We recognize that this Court has held, in similar cases involving motor vehicles, that the fact that a party’s name is painted in some manner on the motor vehicle that caused the injury raises a presumption or is prima facie evidence that the party whose name is painted on the vehicle owns the vehicle and that the driver was using it on the owner’s behalf; however, we do not believe that a plaintiff in a premises-liability action can satisfy the requirements of Rule 9(h), especially when, as here, the facts of who owned or leased the premises could have been so easily ascertained. In Jones v. Resorcon, Inc., supra, Resorcon argued to this Court:

“Resorcon argues that Jones did not exert a reasonable effort in discovering its true identity. Resorcon states in its brief: ‘It seems incomprehensible that a products liability suit would be filed against a manufacturer of an allegedly defective product without first-hand knowledge of the defect and the identity of the manufacturer.’ Resorcon asserts that Jones should not have depended on USX’s identification of the manufacturer but should have insisted on inspecting the product and making a personal determination as to the manufacturer’s identity. It argues further that, after Jones had notice that Baltimore Aircoil, the manufacturer named by USX, was not the manufacturer, Jones’s efforts to discover the manufacturer and to substitute that party as a defendant did not meet the standard of due diligence.”

604 So.2d at 378.

In Resorcon, this Court stated that “[i]t is relevant to the question of due diligence that an inspection of the fan would almost certainly be necessary to maintain the product liability action against any defendant.” 604 So.2d at 373. It would appear that the same principle should apply in a case involving premises liability and that in such a case it would be relevant to the question of due diligence to ascertain who owned or was responsible for the premises where the injury occurred.

Given the fact that Crowl did nothing to ascertain Kayo’s identity for over a year and a half after the expiration of the statute of limitations, other than rely on the facts that Conoco’s name was on the premises and that Conoco’s name was listed in telephone directories at the address of the premises, we believe that Crowl did not exercise due diligence and that Crowl’s amended complaint substituting Kayo for one of the fictitiously named defendants does not relate back to the filing of the original complaint. We hold that the trial court did not err in granting Kayo’s motion for a summary judgment.

III.

Crowl also argues that the trial court erred in refusing to allow him to conduct discovery to obtain evidence to use to oppose Kayo’s motion. Crowl asserts that he needs to conduct discovery to determine what parties owned or controlled the premises where the accident occurred, because this information “is crucial to the issues of negligence and wantonness.” (Brief of appellant, p. 21.) One of the issues presented by this appeal is whether the statutory period of limitations has run on any claim that Crowl might have against Kayo; the law is clear that a request for a continuance pursuant to the provisions of Rule 56(f), Ala. R. Civ. P., was within the sound discretion of the trial court, and that court’s decision not to permit discovery should be reversed on appeal only if the court abused its discretion. See Robbins v. Smith, 495 So.2d 577, 581 (Ala.1986). We do not find that the trial court erred in refusing to grant a continuance to permit Crowl to conduct discovery.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

This opinion was prepared by Retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, BROWN, and STUART, JJ., concur.

LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. I submit that we should reverse the summary judgment in favor of Kayo.

The record reveals no cause whatsoever for a reasonably diligent person to doubt that Conoco owned and operated the gas station. Indeed, Kayo actively and thoroughly disguised the station as a Conoco station. Due diligence does not require a plaintiff to suspect that a defendant has disguised its identity, and the courts should not reward a defendant for disguising its identity.

The case before us is the converse of Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992), cited by the main opinion to support its thesis that the plaintiff now before us failed to exercise due diligence. In Resorcon, the plaintiff failed to inspect the allegedly offending blower-fan and thereby failed to discover the defendant’s name stamped on an identification plate. In the case now before us, the plaintiff did inspect the allegedly offending gas station, but all the “identification plates” — that is, all of the signage maintained there by Kayo — proclaimed the identity of the defendant to be Conoco.

Crowl, the plaintiff now before us, has exercised due diligence. His case is analogous to Roberts v. Cochran, 656 So.2d 353 (Ala.1995), Merritt v. Cosby, 578 So.2d 1242 (Ala.1991), Ex parte FMC Corp., 599 So.2d 592 (Ala.1992), and Ex parte Stover, 663 So.2d 948 (Ala.1995). In each of these cases, this Court concluded that the plaintiff had exercised the requisite due diligence.

LYONS, J., concurs.

HARWOOD, Justice

(dissenting).

I dissent. I write to note the pertinence to this case of the following statement from Denney v. Serio, 446 So.2d 7, 11 (Ala.1984):

“Although this Court has refused to apply the relation-back principle to inordinate delays from the time of knowledge of the fictitious party’s true identity until actual substitution of the fictitious party’s true name — see Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981) (three-year delay too long); Shirley v. Getty Oil Co., 367 So.2d 1388 (Ala.1979)(17-month delay too long) — [Kayo] proffered no evidence establishing that [Crowl’s] dilatory substitution in fact prejudiced [it]. See generally Ex parte Tidmore, 418 So.2d 866 (Ala.1982)(two-year delay in substituting proper defendant too long where party sought to be added would be prejudiced thereby).”

The record contains no indication that Kayo ever asserted to the trial court that Crowl’s delay in substituting Kayo as a named defendant caused it any prejudice other than mere undesired involvement in the case.

LYONS, J., concurs.

      . Crowl, in his complaint, designated the fictitiously named defendants as follows:
      "No. 1, whether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which are owners of premises located at 800 Oakwood Avenue, NE, Huntsville, Alabama; No. 2, whether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which are lessor of said premises; No. 3, whether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which are lessees of said premises; No. 4, whether singular or plural, Plaintiff hereby intending to designate that entity or entities who or which provided maintenance and upkeep of said premises; No. 5, whether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which have any interest in said premises, made the basis of this suit; No. 6, whether singular or plural, Plaintiff hereby intending to designate that entity or those entities who or which exercised control over said premises. Plaintiff avers that the identity of the fictitious party defendants is otherwise unknown to Plaintiff at this time, but their true names will be substituted by amendment when the aforesaid lacking knowledge is ascertained.”
      (Emphasis omitted.)

      . The trial court's order of July 10, 2001, also granted a motion to dismiss filed by E.I. DuPont De Nemours and Company; that defendant is not a party to this appeal because Crowl appealed only the judgment of the trial court granting Kayo's motion to dismiss.

      . In its motion to dismiss, Kayo stated that Crowl's complaint was barred by the statute of limitations. In support of its motion to dismiss on that ground, Kayo submitted the following:
      "1. The pleadings, discovery, and other materials of record in this cause;
      "2. Kayo’s memorandum brief and its supporting evidentiary submissions.”
      In response to Kayo’s motion to dismiss, Crowl stated that "[djefendant’s motion, although styled as a Motion to Dismiss, makes reference to 'pleadings, discovery, and other materials of record in this cause,' and 'its supporting evidentiary submissions,’ ” and that " [therefore, it is in actuality a Motion for Summary Judgment under Rule 56[, Ala. R. Civ. PJ” In this case, the trial court, in ruling on the motion to dismiss, "considered the motions, answer thereto and briefs and arguments of counsel”; because the trial court did not exclude the affidavits and various exhibits, we treat the motion as a motion for a summary judgment. This Court, in Wesson v. McCleave, Roberts, Shields & Green, P.C., 810 So.2d 652 (Ala.2001), stated:
      "The trial court granted a motion the defendants had styled as a 'motion to dismiss.' However, this court has written;
      " 'When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977).

        "Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997). Because in ruling on the motion the trial court considered the exhibits Wesson had attached to his response to the motion to dismiss, this Court will consider this appeal as an appeal from a summary judgment.”
      810 So.2d at 655-56. See also Sims v. Lewis, 374 So.2d 298 (Ala.1979).

      .In his brief to this Court, Crowl states that "[Qiled contemporaneously with the summons and complaint were interrogatories and requests for production.” (Crowl’s brief, p. 4.) The interrogatories and requests for production, however, do not appear in the record before this Court. See Rule 10(a), Ala. R.App. P., which states;
      "The record on appeal, in both civil and criminal appeals, shall not contain the following, unless some particular question is raised with respect thereto and decided in the trial court and unless specifically designated by a party:

      "(4) pretrial discovery material that is not made a part of the trial court’s proceedings.”

        (Emphasis added.) See also Rule 10(b)(1), Ala. R.App. P., which states:
      "A party shall have the right to designate any parts or all of such papers, written charges, documents, exhibits, etc., by a written designation filed with the clerk of the trial court. However, if all of such records are designated, there shall, nevertheless, be omitted therefrom those items listed in [Rule 10(a), Ala. R.App. P., quoted above,] unless such item or items are specifically described in the written designation.”
      Although the interrogatories and requests for production do not appear in the record, Crowl refers this Court to the docket sheet, which contains the following entry, "S & C TO SHERIFF, DIS,” and to a page in Crowl’s "Response to Defendant Kayo Oil Company’s Motion to Dismiss,” where Crowl states:
      "[Crowl] specifically filed interrogatories and a request for production to be served on [Kayo] with the summons and complaint. Among other information, the discovery requested the correct name of [Kayo], requested the identity of any person not a named party to this action who acted in such a manner as to cause or contribute to the accident, the identity of the alleged owners of the property and the identity of the persons who managed or controlled the area where [Crowl] was injured.”
      Kayo itself seems to concede that discovery materials were left with the summons and complaint, because Kayo, in its brief to this Court, states, "Conoco was not properly served with the summons and complaint (and the accompanying discovery materials).” (Kayo’s brief, p. 18.) In view of the fact that this case was briefed and argued as if the interrogatories were a part of the record and the fact that the docket sheet clearly reflects that discovery materials were sent to the sheriff for service along with the summons and complaint, and considering the statement in Crowl’s opposition to Kayo’s motion to dismiss, we decide this case assuming that the interrogatories as described above were included in the material left at 800 Oakwood Avenue, Huntsville, on September 21, 1999. Because the interrogatories are not before this Court, we cannot determine exactly what facts Crowl sought to ascertain, only that he did attempt some discovery.

      . The default judgment is dated "April 2000.” The April 10, 2000, date is found in the trial court’s order vacating the default judgment, which is dated April 27, 2001.

      . Attached to the motion were the affidavits of Bill Owen, "Director, Safety, Health & Environmental, Marketing, North America of Co-noco, Inc.,” and William R. Grover, senior director and president of Kayo Oil Co.

      . Crowl also substituted E.I. DuPont De Nem-ours and Company for fictitiously named parties 1, 2, 5, and 6 in the original complaint.

      . See note 1 for the designation of fictitiously named defendants 2, 3, 4, and 5 that allegedly describe Kayo.

      . See Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345 (1955).

      . Crowl also argues that the trial court erred in granting the motion for a summary judgment because, Crowl says, there were pending interrogatories and requests for production, the answers to which were essential to his case. Crowl's attorney filed an affidavit in which he stated:
      “At the time, Robert E. Crowl purchased gasoline from a Conoco gas station. The responsibility [of] these entities for Mr. Crowl’s injuiy may depend not only on ownership, but control and maintenance of the property and written agreements between these defendants.
      "Said information is in the control and custody of the defendants and [Crowl] needs responses to his discovery or in the alternative to take depositions in order to determine such information.”
      Crowl cites Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769 (Ala.1994), and Noble v. McManus, 504 So.2d 248 (Ala.1987). While it is true that in those cases this Court held that summary judgment was not proper because there were outstanding discovery requests, the facts sought by the discovery in those cases were critical to the plaintiffs’ cases. In this case, Crowl has failed to show how information in the possession of Conoco, Inc., can possibly shed light on the issue that is the subject of Kayo’s motion for a summary judgment; that Crowl did not exercise due diligence in identifying Kayo; and that Crowl’s amendment does not relate back to the original complaint. See Copeland v. Samford Univ., 686 So.2d 190 (Ala.1996).


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Knox KERSHAW II, as executor of the estate of Miriam M. Kershaw, deceased v. Royce KERSHAW, Jr., and Kershaw Manufacturing Company, Inc.
    1011253.
    Supreme Court of Alabama.
    Oct. 25, 2002.

      James N. Walter, Jr., and Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellant.
    Richard H. Gill and Shannon L. Holliday of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellees.
   LYONS, Justice.

Knox Kershaw II (hereinafter “Knox”) commenced an action in various capacities against his brother, Royce Kershaw, Jr. (hereinafter “Royce”), and Kershaw Manufacturing Company, Inc. (hereinafter “KMC”), arising out of matters occurring with respect to the administration of the estate of their mother, Miriam M. Ker-shaw. Royce and Knox are the only children of Royce Kershaw, Sr., and Miriam M. Kershaw. The trial corad, after a hearing at which testimony was presented, entered a judgment enforcing in terrorem clauses in inter vivos trusts created by Miriam M. Kershaw (hereinafter “Mrs. Kershaw”) and in her will. In so holding, the trial court determined that Knox was not entitled to any interest under Mrs. Kershaw’s will or under any trust established by her of which he was a beneficiary. The trial court further held that other claims made by Knox were moot. The trial court then severed matters relating to the administration of Mrs. Kershaw’s estate and certified the judgment enforcing the in terrorem clauses as final and immediately appealable pursuant to Rule 54(b), Ala. R. Civ. P. Knox appeals. We affirm in part, reverse in part, and remand.

I. Factual Background

Miriam M. Kershaw’s late husband, Royce Kershaw, Sr. (hereinafter “Royce Sr.”), and his brother, Knox, founded KMC. Royce Sr. and his brother Knox litigated over matters related to KMC for decades. Eventually, Royce Sr. became the sole owner of KMC.

Upon Royce Sr.’s death in 1971, the KMC stock passed by inheritance to his family and to family trusts. Mrs. Kershaw received certain shares of cumulative preferred stock of KMC, and she remained a director of the company. Royce and Knox each owned certain shares of preferred and common stock of KMC, and First Alabama Bank of Montgomery (now Regions Bank) owned certain shares of KMC preferred and common stock under the terms of testamentary trusts created pursuant to Royce Sr.’s will.

After their father’s death, Royce and Knox began to run the company and discord among brothers reappeared in the second generation. The difficulties culminated in 1983 with an agreement pursuant to which Knox’s interest in KMC was purchased for approximately $12 million. At the time of the sale, Mrs. Kershaw, Royce, Knox, and First Alabama Bank of Montgomery entered into an agreement (“the 1983 Agreement”), which includes the following provision:

“6. Sale of Stock or Assets or Merger. Royce Kershaw hereby agrees that during his lifetime
“(e) he will not vote his shares of Class A Common Stock of KMC in favor of a sale of all or substantially all of the assets of KMC unless KMC will be completely liquidated and dissolved immediately after any such sale of assets.”

Paragraph 12 of the 1983 Agreement provides that it is binding upon and inures to the benefit of the successors, assigns, heirs, and personal representatives of the parties thereto. Not long after the buyout, Knox and the company of which he assumed ownership after the buyout sued Royce and KMC. This Court has considered matters arising from this dispute on at least four occasions.

Approximately 15 years after the execution of the 1983 Agreement, on November 6, 1998, substantially all of the assets of KMC were sold to Progress Rail Services Corporation. Exercising the right conferred upon her by the 1983 Agreement, Mrs. Kershaw had instructed Royce to vote his shares of class A common voting stock in favor of the sale of assets to Progress Rail. Knox maintains that as a result of the sale KMC received funds substantially in excess of those of its debts and obligations that were not assumed by Progress Rail and that the sale resulted in cash to KMC more than sufficient to redeem all of Mrs. Kershaw’s stock and debt. KMC was not immediately liquidated as Knox insists it should have been pursuant to paragraph 6 of the 1983 Agreement. Royce, as president and controlling shareholder of KMC, took no action to dissolve KMC, to pay KMC’s indebtedness to Mrs. Kershaw, or to redeem any of Mrs. Ker-shaw’s shares of KMC stock.

Mrs. Kershaw executed a will and established three inter vivos trusts of which she was the life beneficiary. (Those trusts are hereinafter referred to as “Trust No. 1,” “Trust No. 2,” and “Trust No. 3.”) Upon Mrs. Kershaw’s death on March 2, 1999, Royce and Rodger Davis, Royce’s personal assistant and a longtime employee of KMC, became the cotrustees of Trust No. 1. During her lifetime, Mrs. Kershaw had placed her shares of KMC preferred stock in Trust No. 1. Royce is the principal remainder beneficiary of Trust No. 1.

Upon Mrs. Kershaw’s death, Knox and Davis became the cotrustees of Trust No. 2. No shares of KMC stock were held in Trust No. 2. Knox is the principal remainder beneficiary of Trust No. 2.

Royce, Knox, and Davis became the co-trustees of Trust No. 3 upon Mrs. Ker-shaw’s death. A marital trust was created for Mrs. Kershaw under Royce Sr.’s will; the corpus of the trust included shares of preferred stock in KMC. Royce Sr.’s will gave Mrs. Kershaw a power of appointment over the assets of the marital trust. In her will, Mrs. Kershaw exercised her power of appointment over the assets in the marital trust created in Royce Sr.’s will and directed that those assets be placed in Trust No. 8. Trust No. 3 provides that all stock held by it in KMC and affiliated entities, and/or any bonds, promissory notes, or other indebtednesses of KMC and affiliated entities be distributed to Royce. Trust No. 3 further requires that property not otherwise distributed shall be divided in equal shares and paid to the trustees of Trust No. 1 and Trust No. 2 for placement in the respective trusts.

Knox contends that had KMC been immediately liquidated in late 1998 as he says the 1983 Agreement required, the assets in the form of KMC stock in the marital trust would have been converted to cash, and upon Mrs. Kershaw’s exercise of the power of appointment over the assets of the marital trust in favor of Trust No. 3, that cash would then have been divided equally between Trust No. 1 and Trust No. 2. Under this scenario, Royce, as principal remainder beneficiary of Trust No. 1, and Knox, as principal remainder beneficiary of Trust No. 2, would have shared equally. Thus, according to Knox, if liquidation had occurred, the additional cash in the estate would have increased Knox’s inheritance by $1.6 million and diminished Royce’s inheritance by the same amount.

Mrs. Kershaw’s will names three coexec-utors: Royce, Knox, and Davis. Knox retained counsel and challenged Royce’s failure to liquidate and dissolve KMC as Knox argues is required under the 1983 Agreement. At Knox’s request, counsel for the estate drafted a petition for instructions seeking answers to questions concerning Royce’s rights and the obligations he owed the estate under the 1983 Agreement. Royce refused to join in the proposed petition for instructions.

After Royce refused to agree to file the proposed petition for instructions, Knox sought the advice of disinterested counsel on the issue of Royce’s alleged breach of the 1983 Agreement and the possibility of a claim against the firm that had provided independent legal advice to Mrs. Kershaw. Knox was advised that he had standing to bring a proceeding in good faith with respect to the 1983 Agreement and that it was a case that could be successfully brought. He was further advised not to bring an action at that time against the firm that had represented Mrs. Kershaw. After further negotiations with Royce were unsuccessful, Knox brought the action now before this Court.

II. Course of Proceedings

Knox filed a claim in the probate court asserting that the estate had claims against Royce and KMC related to the 1983 Agreement. Knox subsequently filed this action in the circuit court in his capacities as coexecutor of the estate, as cotrus-tee of certain trusts Mrs. Kershaw created, and in his individual capacity as a beneficiary. He named Royce, individually, and KMC as defendants. Knox then removed the administration of the estate to the circuit court.

In the circuit court action, Knox alleged breach of contract, tortious interference with an inheritance, and breach of fiduciary duty. He also sought a declaratory judgment and other relief. In the declaratory-judgment portion of his complaint, Knox asked the court to determine the effect of the liquidation provision in the 1983 Agreement, the proper allocation of over $4 million in estate-tax liabilities, and the proper use of proceeds from life insurance policies on Mrs. Kershaw’s life purchased by KMC in 1974 and 1983 and payable to KMC. Knox claims that the policies were purchased to provide liquidity to Mrs. Kershaw’s estate. According to Knox, the proceeds of approximately $1.4 million in life insurance payable to KMC were intended to enable KMC to redeem Mrs. Kershaw’s preferred stock at her death. Had this occurred, he says, the proceeds of the sale could then have been distributed equally between Knox and Royce, as principal beneficiaries of Trust No. 1 and Trust No. 2, rather than the KMC stock remaining an asset in Trust No. 3, which, according to its terms, must be distributed to Royce.

When Royce and Davis, in their capacities as cotrustees and coexecutors, refused to join in the action as coplaintiffs, Knox filed a petition seeking to join Royce and Davis pursuant to Rule 19, Ala. R. Civ. P., or to dismiss the coexecutors and cotrus-tees from their duties through a judgment of severance. Royce and KMC moved to dismiss the action.

The trial court denied Knox’s petition to compel joinder or to dismiss the coexecu-tors and cotrustees. The trial court concluded that Knox lacked the authority to act singly in filing this action as a coexecutor and/or cotrustee. The trial court reasoned that coexecutors and cotrustees must act jointly and in concert when filing an action and that this case was not an appropriate one for adding or severing coexecutors or cotrustees. The trial court thereupon dismissed for lack of standing those claims brought by Knox in his capacity as coexecutor or cotrustee.

The trial court also rejected Knox’s standing in his capacity as a beneficiary on the ground that beneficiaries under a will have no title until the estate is settled and disbursements are made from the estate by the executors. The trial court further observed that Knox’s allegations could be made in proceedings related to the administration of the estate. The trial court also observed that in those proceedings, which were then pending in the circuit court, having been removed from the probate court, Knox could avail himself of the statutory procedure for removal of an executor or trustee if he saw fit.

The trial court also held that Knox lacked standing to bring an action alleging breach of contract arising out of the 1983 Agreement because there had been no allegation or proof that Knox had any agreement with Royce or any contractual relationship with Royce that would support such a cause of action.

The trial court rejected Knox’s claim for tortious interference with the expectancy of an inheritance on the ground that it is not a recognized cause of action under Alabama law. The trial court further found that even if such cause of action were recognized, Knox had made no allegation or showing that Mrs. Kershaw had been fraudulently induced to make her will or to dispose of any property.

The trial court also dismissed Knox’s claims for restitution, an accounting, and the imposition of a constructive trust because there was no allegation of fraud, mistake, coercion, or abuse of a confidential relationship and because he had available to him the remedy of an accounting in the proceedings concerning the administration of the estate.

The trial court dismissed Knox’s breach-of-fiduciary-duty claim, made in his capacity as an individual beneficiary, because Knox failed to show that he owned any stock in KMC and that KMC owed any duty to him. Moreover, the trial court further observed that a breach-of-fiduciary-duty claim on behalf of Mrs. Kershaw’s estate must fail because that tort claim did not survive her death.

The trial court dismissed Knox’s claims arising from KMC’s alleged failure to pay dividends on the ground that Knox was not a stockholder and that he had no standing to contest such violation. Further, with respect to any violation of a right of inspection, the trial court again observed that Knox was not a stockholder and that there was no showing that he had requested an inspection in accordance with § 10-2B-16.02, Ala.Code 1975.

The trial court refused to dismiss the declaratory-judgment count to the extent that it raised issues other than a declaration of rights with regard to KMC. As to that aspect of the declaratory judgment seeking “any declaration of right with regard to KMC,” the trial court granted the motion to dismiss and dismissed KMC as a defendant. On April 25, 2001, the trial court entered an order clarifying its earlier order and stating that the only remaining issues involved in the declaratory-judgment action dealt with the construction of the will concerning allocation of estate-tax liability and the proceeds of life insurance payable to KMC.

Royce filed a counterclaim seeking a determination that Knox had forfeited his inheritance by reason of having violated the in terrorem clauses in the will and trusts. Those clauses are substantially similar. Item VI of the will provides as follows:

“Limitation on Provisions for Sons
“If either of my sons in any manner, directly or indirectly, contests or attacks the validity of this Will or the validity of any'trust created by me and in existence at the time of my death or any disposition made under this Will or under any Trust created by me and in existence at the time of my death by filing suit against my executor or the trustee of any trust created by me or otherwise, then any share or interest given to such son, directly or indirectly, or to any trust for the benefit of such son or his lineal descendants under this Will or under any trust created by me and in existence at the time of my death shall be disposed of in the same manner as if such son and all of his descendants had predeceased me.”

A similar provision appears in each of the three trusts under the heading “Limitation on Distribution.”

The trial court subsequently conducted a hearing related solely to the effect of the in terrorem clauses in the trusts and the will. The trial court found that the in terrorem clauses were clear and unambiguous and that they were valid and binding on both sons. Nevertheless, the trial court received ore tenus evidence from, among others, the attorney who drafted the in terrorem clauses after meeting with Mrs. Kershaw. The trial court, in a subsequent order, characterized this testimony as evidence showing Mrs. Kershaw’s distress over the history of family litigation and her desire to avoid such litigation and stated that “the goal of the in terrorem clauses was to avoid any disputes or litigation between her sons regarding the distribution of assets and to insure that the dispositions in her will and trusts were fulfilled.”

The trial court concluded that if the action was solely one seeking declaratory relief it would not invoke the in terrorem clauses. The trial court then concluded that Knox was not directly contesting the validity of the will or the trusts and thus had not violated that aspect of the in terrorem clauses. Nevertheless, the trial court found that, “at the very least, Knox has challenged and/or attacked in this action the disposition of property in the will and trusts.” The trial court relied upon Knox’s contention that different amounts would be distributed to the two beneficiaries if he prevailed on his claims concerning the 1983 Agreement or his claims with respect to the use of the proceeds of the life insurance policies.

The trial court further found a violation of the in terrorem clauses arising from Knox’s filing an action in his capacity as coexecutor, cotrustee, and a beneficiary of the estate against Royce, also a coexecutor of the will and a cotrustee. Pointing to Knox’s petition to have Royce and Davis either joined as plaintiffs or dismissed as coexecutors and cotrustees, and noting that it had rejected that petition, the trial court concluded that Knox was guilty of action “otherwise” in violation of the in terrorem clauses. The trial court ultimately concluded that Knox’s litigation constituted an action against the other co-executors and cotrustees “in an effort to change distributions.” Thus, the trial court found Knox guilty of violating the in terrorem clauses.

The trial court rejected Knox’s “good-faith” defense, assuming that such a defense is recognized in this State, on the ground that Knox did not fully disclose all the facts to the attorney he consulted for a second opinion. For example, this attorney was not made aware of the existence of the in terrorem clauses when he advised Knox. The trial court then held that Knox had forfeited his inheritance and dismissed all other claims, other than matters relating to the probate of Mrs. Kershaw’s will, as moot.

III. Standard of Review

Despite the fact that the trial court made findings of fact in this case based on evidence presented ore tenus, we review its judgment de novo because the dispositive issue presents a question of law. The presumption of correctness accorded to the decision made by a trial court after hearing evidence presented ore tenus applies to findings of fact resolving disputed evidence, not to conclusions of law. Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999); McCluney v. Zap Prof'l Photography, Inc., 663 So.2d 922, 924 (Ala.1995).

IV. Issues Before This Court

Knox asserts five issues on appeal. Those issues can be summarized as follows: (1) whether a coexecutor of an estate or a beneficiary of an estate or a trust can, under the circumstances of this case, prosecute an action the cofiduciaries have refused to bring; (2) whether the trial court erred in admitting and considering extrinsic evidence of Mrs. Kershaw’s intent concerning the in terrorem clauses, which the trial court found to be unambiguous; (3) whether Knox, under the circumstances of this case, violated the terms of the in terrorem clauses, thereby forfeiting his inheritance; (4) whether Alabama recognizes a “good faith and/or probable cause” exception to the enforcement of an in terrorem clause; and (5) whether Alabama recognizes a cause of action for tor-tious interference -with an expectancy in an inheritance or a bequest. We confine our review to these issues. Knox does not challenge the trial court’s dismissal of KMC as a defendant; therefore, that aspect of the judgment is affirmed.

Because an affirmance of that portion of the trial court’s judgment that held that Knox had violated the in terrorem clauses would, for all intents and purposes, defeat Knox’s interest in pursuit of most, if not all, of his claims on behalf of the estate or as a beneficiary, the most logical issue to address first deals with the trial court’s application of the in terrorem clauses.

A. The In Terrorem Clauses

The parties agree that only one Alabama case exists dealing with the enforceability of an in terrorem clause. In Donegan v. Wade, 70 Ala. 501, 505 (1881), the will provided:

“ ‘It is my will, that if any one of my children shall resist the probate of my will, or petition to break or set it aside, such child or children shall not have any part of my estate whatever, and the portion intended for such child shall be distributed among those of my children mentioned in item No. 8 who shall not oppose my will, in the same way that the balance of my estate is therein directed to be distributed; the child or children opposing my will being excluded from any participation therein.’ ”

This Court stated:

“It is not denied that this [in terrorem clause] is a legal or valid condition, when attached to a legacy or devise. Its purpose, too, is clear. It was designed to prevent the inauguration or prosecution of a suit or contest in the courts, commenced with the view of defeating the will of the testator as he had seen fit to make it. Such contests often breed irreconcilable family feuds, and lead to disgraceful family exposures. They not unfrequently, too, waste away vast estates, by protracted and extravagant litigation.”

70 Ada. at 505. One beneficiary, a daughter of the decedent who had filed a petition to contest the will, resisted forfeiture by relying on the fact that the petition had been dismissed. The Court rejected her argument that the fact that the petition had been dismissed was of consequence, noting that her conduct in filing the contest “constituted opposition to that unliti-gated probate or establishment of her father’s will, which it was his great care to secure.” 70 Ala. at 506. In other words, she had violated the express terms of the in terrorem clause. The other beneficiary, a brother of the petitioner in the will contest, resisted forfeiture on the ground that his sister, and not he, had filed the contest. This Court found evidence of the beneficiary’s behind-the-scenes payment of expenses and management of the litigation as sufficient to invoke the in terrorem clause as to the brother. The Court held:

“To reheve him under such circumstances, and, at the same time, to visit her with the penalty of a forfeiture, would be, in effect, to permit the law to place a premium on artifice, and to suffer the just reproach of seeking after the shadow instead of the substance.”

70 Ala. at 506.

As was the case in Donegan, the issue of the enforceability of an in terrorem clause has not been asserted in this case. We treat such clauses as enforceable for purposes of this appeal.

Both sides contend that the in terrorem clauses are unambiguous, but both sides insist on different results from the plain language. Royce and KMC, however, now artfully suggest on appeal that an ambiguity might exist in the in terrorem clauses. The simple fact that a writing is described by adversaries as unambiguous while each insists on a different interpretation does not render the writing ambiguous. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314, 817 (Ala.1993); Englund’s Flying Serv., Inc. v. Mobile Airport Auth., 536 So.2d 1371 (Ala.1988). A document is unambiguous if only one reasonable meaning emerges. Wayne J. Griffin Elec., Inc.; Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184 (Ala.1992). Whether a document is ambiguous is a question of law that this Court reviews de novo. See Mobile Eye Center, P.C. v. Van Buren P’ship, 826 So.2d 135, 138 (Ala.2002) (“ ‘Thus, we apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.’ ”) (quoting Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001)).

We begin our search for the existence of one reasonable unambiguous meaning with a parsing of the relevant portions of the in terrorem clauses. The language in the trusts and the will is virtually the same; we focus on the clause found in the will. Shorn of unnecessary verbiage, the in terrorem clause reads as follows:

“If either of my sons in any manner, directly or indirectly, contests or attacks the validity of this Will or the validity of any trust ... or any disposition made under this Will or under any Trust ... by filing suit against my- executor or the trustee of any trust created by me or otherwise, then any share or interest given to such son ... shall be disposed of in the same manner as if such son and all of his descendants had predeceased me.”

The trial court concluded that Knox did not violate that aspect of the in terrorem clauses prohibiting an attack on the validity of the will or the trusts. We agree. The trial court concluded that Knox violated the in terrorem clauses in that he attacked the validity of “any disposition made under this Will or under any Trust.” (Emphasis added.) Because Knox’s claims, if successful, would have increased his share of the distribution under the trusts, the trial court concluded that Knox had violated that portion of the in terro-rem clause. The trial court obviously has treated “disposition” as being synonymous with “distribution.” The trial court, in its order, stated: “However, the court does not agree that he [Knox] is not contesting or attacking distributions and/or dispositions under the will and trust.” (Emphasis added.) By the time the trial court stated its ultimate conclusion in the order, the word “dispositions” had been dropped from the lexicon: “By filing this action Knox, in his capacity as co-executor, co-trustee, and beneficiary, has attacked and contested distributions under the will and trusts and he has also sued the other co-executors and co-trustees in an effort to change distributions.” (Emphasis added.)

Knox directs our attention to § 43-2-640, Ala.Code 1975, which authorizes an executor or administrator to make distribution of the whole or any part of the property once satisfied that the estate is solvent. Obviously, under this statute, distribution of estate assets is a function of the executor or administrator — not the testator. Knox further cites § 43-2-691, dealing with the summary disposition of small estates and defining “distributees” as “[t]he persons who are entitled to the personal property of a decedent under the terms of a testamentary disposition or under the Alabama descent and distribution statutes.” Again, the function of an executor or administrator with reference to the distribution of estate assets is set apart from the function of the testator with reference to testamentary disposition.

This dichotomy recurs in other parts of the Code. For examples of the use of “disposition” in the context of activities of the testator, see § 43-8-222 (“The 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 apply unless a contrary intention is indicated by the will.”); § 35^-295 (“When a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be by will, duly executed as wills of real estate are required by law.”); § 43-8-141 (“A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.”); § 43-8-221 (“The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in his instrument unless the application of that law is contrary to the provisions relating to the elective share described in sections 43-8-70 through 43-8-75, the provisions relating to exempt property and allowances described in sections 43-8-110 through 43-8-113, or any other public policy of this state otherwise applicable to the disposition.”); and § 43-8-229 (“A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.”).

On the other hand, for references to activities on the part of persons other than a testator with respect to “distribution,” see § 12-13-1(5), stating that the probate court shall have jurisdiction over “[t]he sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates”; and Commentary to § 43-2-830 (“In the absence of testamentary disposition, personal property nevertheless devolves to personal representative for distribution to decedent’s heirs or to those indicated as substitutes for them in cases involving disclaimer or renunciation or other circumstances affecting devolution of intestate estates.”) (2000 Cum.Supp.).

The separate functions of distribution and disposition have been addressed in the same statute. See, e.g., § 35^-297 (“When a disposition under a power is directed to be made by, between or among several persons, without specifying the sum or share to be allotted to each, all the persons designated are entitled to an equal proportion; but when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportion as the trustee of the power may think proper, the distribution or apportionment made by such trustee cannot be impeached on the ground that it is unsubstantial, illusory or nominal.”); the previously referenced definition of “distributees” in § 43-2-691(1) (“The persons who are entitled to the personal property of a decedent under the terms of a testamentary disposition or under the Alabama descent and distribution statutes.”); and § 43-2-692(h) (“To each surviving spouse, child or other dis-tributee who is entitled to take under Alabama’s descent and distribution laws, or, alternatively, to each devisee entitled to take under any testamentary disposition of the decedent.”).

The pattern of confining the application of the term “disposition” to the acts of the testator and the term “distribution” to the duties of the executor or the administrator is supported by definitions in Black’s Law Dictionary (7th ed.1999). “Disposition” is defined as “[t]he act of transferring something to another’s care or possession, esp. by deed or will; the relinquishing of property <a testamentary disposition of all the assets >”; “closing of estate” is defined as “[t]he completion of the administration of a decedent’s estate, brought about by the administrator’s distribution of estate assets, payment of taxes, and filing of necessary accounts with the probate court”; “distribution” is defined as, “[a]t common law, the passing of personal property to an intestate decedent’s heirs. Cf. descent (1). 2. The act or process of apportioning or giving out”; a “probate distribution” is defined as “[t]he judicially supervised apportionment and division — usu. after the payment of debts and charges — of assets of an estate among those legally entitled to share”; a “trust distribution” is defined as “[t]he cash or other property paid or credited to a trust beneficiary”; “distributive clause” is defined as “[a] will or trust provision governing the distribution of income and gifts”; and “distributive share” is defined as “[t]he share that an heir or beneficiary receives from the legal distribution of an estate.” See also State ex rel. Dryden v. Thym, 282 S.W.2d 178 (Mo.Ct.App.1955).

Royce and KMC dismiss Knox’s contention that the trial court erred when it treated distributions and dispositions synonymously as “splitting hairs.” In this case of splitting heirs, we cannot embrace such a casual dismissal of the trial court’s erroneous conflation of the terms distribution and disposition. Nor do we consider our construction hyperteehnieal. The record makes it clear that we are not dealing with words clumsily chosen by an unsophisticated layperson, as is often the case with other written instruments. Mrs. Ker-shaw’s wills and trusts were drafted by competent counsel. We find no basis in this record upon which to conclude that Knox has challenged any act of Mrs. Ker-shaw as settlor of the trusts or as testatrix with respect to the dispositions made in either the trusts or the will. Knox’s challenges leave intact the formulas in the trusts and the will; they affect only the amount of the payout when those formulas are applied to the assets. Consequently, we cannot say that Knox has “directly or indirectly, eontest[ed] or attack[ed] ... any disposition made under this Will or under any Trust created by me.” We must therefore look elsewhere for a violation of the in terrorem clauses.

The trial court also concluded that Knox had violated the in terrorem clauses by petitioning to have Royce and Davis joined as coplaintiffs or dismissing them as coexecutors and cotrustees; the trial court concluded that his doing so constituted action that “otherwise” violated the in terrorem clause. However, the phrase “or otherwise” in the in terrorem clause appears after the reference to the condemned conduct of contesting or attacking the validity of the will or the trusts or any disposition under the will or trusts. Specifically, after listing the condemned acts, the in terrorem clauses provide that those acts are accomplished “by filing suit against my executor or the trustee of any trust created by me or otherwise.” (Emphasis added.) Knox contends that the phrase “or otherwise” refers to any trust created by Royce Sr. Even conceding, as Royce and KMC contend, that the phrase “or otherwise” refers to some action other than filing a lawsuit against the executor or the trustee, in the absence of Knox’s attacking or contesting the validity of the will or the trusts or attacking or contesting the disposition made under the will or the trusts, it is not necessary to reach the scope of any restriction in the in terrorem clauses on the means employed to reach those ends.

Having concluded that the in terrorem clauses are not ambiguous, i.e., that from a reading of those clauses “one reasonable meaning” emerges and that Knox has not violated the letter of the in terrorem clauses, we must return to Donegan. The sister in Donegan who filed the contest clearly violated the letter of the in terrorem clause. However, this Court found her brother, who had coached from the sideline, just as guilty, observing, “[a]nd the participation of David Wade, Jr., in such contest, was of the same character, however deficient in the candor of open resistance.” 70 Ala. at 506. The brother, by aiding and abetting behind the scenes, violated the spirit, if not the letter, of the clause. We must decide whether this Court’s rejection in Donegan of an artifice to avoid the impact of the in terrorem clause permits an expansive approach to the application of the in terrorem clauses now before this Court so as to warrant the conclusion that Knox, like the brother in Donegan, also violated the spirit, if not the letter, of the clauses and is therefore subject to the penalty of forfeiture. We answer that question in the negative.

Unlike the case here presented, at least one of the beneficiaries in Donegan clearly violated the letter of the unambiguous in terrorem clause. The court in Donegan was confronted with the prospect of the unpalatable disparate treatment of two parties. To be sure, a literal application of the in terrorem clause would have spared the brother from forfeiture. However, reliance upon Donegan as support for enforcing an in terrorem clause in all instances where the court finds a violation of the spirit but not the letter of such a clause would embrace a rule of construction favoring forfeiture. As a general proposition, in settings other than an in terrorem clause, this Court has embraced a policy of strict construction of contractual provisions calling for forfeiture. See, e.g., Hunter-Benn & Co. v. Bassett Lumber Co., 224 Ala. 215, 222, 189 So. 348, 353 (1932) (“the rule of general application is that stipulations in contracts intended to work a forfeiture of a valuable right will be strictly construed, and strict compliance therewith by the party claiming the forfeiture will be exacted, and doubtful provisions will be resolved against the right to claim such forfeiture”). We are persuaded by the weight of authority from other jurisdictions as expressed in Claudia G. Catalano, Annotation, What Constitutes Contest or Attempt to Defeat Will Within Provision Thereof Forfeiting Share of Contesting Beneficiary, 3 A.L.R. 5th 590 § 2[a] (1992) (“Consistent with the often expressed view that the law abhors a forfeiture, no-contest provisions are looked upon with some disfavor and have been strictly construed.... A breach of a forfeiture clause will be declared only when the acts of a party come strictly within its expressed terms.”). The holding in Done-gan imposing a penalty for a violation of the spirit and not the letter of the in terrorem clause is limited to the facts presented there — where another beneficiary was guilty of a clear violation of the letter of the in terrorem clause.

Even if we were disposed to treat Dohegan as establishing a rule whereby the penalty for violating an in terrorem clause can be imposed in all cases when the spirit, but not the letter, of the clause has been violated, we would have to face the practical problem of determining the spirit of the in terrorem clause in a setting, such as is presented here, where the in terrorem clause, as we have previously determined, is unambiguous. The trial court therefore erred in admitting parol evidence concerning the testator’s intention. See Ex parte Employees Retirement Sys. Bd. of Control, 767 So.2d 331, 334-35 (Ala.2000) (“This Court has stated that in interpreting a will ‘[ejxtrinsic evidence is not admissible to vary, contradict or add to the plain and unambiguous language of the will.’ Cook v. Morton, 254 Ala. 112, 116, 47 So.2d 471, 474 (1950). This Court often has stated that it will not look beyond the four corners of an instrument unless the instrument contains latent ambiguities. Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982).”). This problem is avoided by limiting Done-gan to instances where there has been a clear violation of the unambiguous terms of an in terrorem clause by at least one beneficiary. Because no violation of the in terrorem clause occurred here, we need not reach Knox’s contention that we should recognize a good-faith exception to the enforcement of such clauses. We reverse the trial court’s judgment insofar as it held that Knox violated the in terrorem clauses.

B. Standing

As previously noted, the trial court concluded that Knox, who is a coexecutor and a cotrustee, lacked the authority to act singly in filing this action. The trial court reasoned that coexecutors and cotrustees must act jointly and in concert when filing an action and that this case was not an appropriate one for adding or severing coexecutors or cotrustees. The trial court thereupon dismissed those claims Knox brought in his capacity as coexecutor or cotrustee for lack of standing.

In arguing that he has standing to bring this action, Knox relies upon Stone v. Jones, 530 So.2d 232 (Ala.1988), in which this Court recognized that one of several coexecutors had the authority to act singly with, respect to ministerial matters, but that unanimity was required with respect to discretionary matters. Concluding that the commencement of litigation was a discretionary matter, this Court then endorsed the following course of action where a coexecutor could not persuade other coexecutors to commence litigation. The Court noted:

“[A] co-executor who wishes to file a suit on behalf of the estate, but is unable to convince the other co-executor(s) to join in the suit, might petition the court to either compel the joinder of the co-executor pursuant to Rule 19, Ala. R. Civ. P., or to dismiss the co-executor from his or her duties through a judgment of severance and allow the lone co-executor to proceed.”

530 So.2d at 235. This Court then reversed the trial court’s judgment and remanded the case to permit the appellant to “employ one of the procedures set forth in this opinion.” 530 So.2d at 235.

Knox, relying upon Stone v. Jones, filed the very petition recommended in that case. The trial court, observing that neither fraud nor abuse of discretion was alleged in the complaint, reiterated the general rule requiring unanimity of action with respect to the discretionary act of commencing litigation and concluded that “this is not an appropriate case in which to either add or sever co-executors or co-trustees.”

Knox points to the possible financial disadvantages to Royce from such litigation and Davis’s status as Royce’s employee as sufficient basis for permitting this action to proceed at the behest of only one coexecutor. Royce points to Knox’s financial interest in his individual capacity in the event that the litigation is successful. Royce argues that strict standards must govern the availability of the remedy prescribed in Stone v. Jones or the rule requiring unanimity of coexecutors would become meaningless.

The remedy contemplated in Stone v. Jones is comparable to the general rule stated in 31 Am.Jur.2d Executors and Administrators § 1155 (2002) (“If a designated co-executor will not join in the suit, the practice is to file the appropriate pleading in his name and then require him to proceed.”). Royce’s protestation that the value of the estate remains unchanged by the result of the litigation begs the question. The more troubling concern expressed by Royce relates to Knox’s similar conflict of interest and the damage to the estate in incurring attorney fees in what Royce contends is groundless litigation. Royce even suggests that all the coexecutors would have conflicts and therefore there would be no coexecutor at all. However, the principal risk to the estate is attorney fees that might be incurred unnecessarily in pursuit of Knox’s claims on behalf of the estate to the extent those claims are unsuccessful. Mutual conflicts of interest and any underlying skepticism on the part of the trial court as to the likelihood of success on the merits or concerns over accommodating spite-driven litigation cannot justify the draconian effect of the trial court’s cryptic conclusion that this is not “the appropriate case” for the severance or addition of coexecutors or cotrustees.

We agree with Royce that Stone v. Jones does not stand for the proposition that petitions to compel the joinder or severance of coexecutors should be granted as a matter of right. The necessity for unanimity should not lightly be set aside simply on the whim of a single coexecutor who files the petition invited in Stone v. Jones. A remedy to protect an estate from frivolous proceedings while providing a forum for a coexecutor’s assertion of what it might consider valid claims can be fashioned by recognizing that a coexecutor is not entitled to proceed singly as a matter of right and then attaching conditions to allowing the requested relief. Compare Rule 41(a)(2), Ala. R. Civ. P., where the voluntary dismissal of an action by the plaintiff is made subject to “such terms and conditions as the court deems proper.” A requirement of payment of an attorney fee is an appropriate condition under Rule 41(a)(2): Mass Appraisal Servs., Inc. v. Carmichael, 372 So.2d 850, 852,(Ala.1979). Where the Legislature is the source of an agency’s power, the Legislature “ ‘can validly impose any reasonable condition upon its exercise as the legislature sees fit.’ ” Mobile Housing Bd. v. Brook, 285 Ala. 244, 246, 231 So.2d 115, 116-17 (1970) (quoting Mobile Housing Bd. v. Cross, 285 Ala. 94, 97, 229 So.2d 485, 488 (1969)) (the Legislature could require the housing board to pay all reasonable costs of proceedings on appeal, including a reasonable attorney fee to be assessed by the court). Likewise, the right to petition for the relief sought by Knox first recognized in Stone v. Jones is equally subject to the court’s inherent authority to attach conditions upon that relief.

Attachment of conditions lies within the trial court’s discretion. Therefore, under the circumstances here presented, the court’s rejection altogether of Knox’s right to proceed singly as coexecutor and cotrus-tee, without an opportunity to be heard on the merits, constituted an abuse of discretion. We reverse the trial court’s judgment insofar as it denies Knox’s petition to realign or sever and instruct the trial court to grant the relief and allow Knox to proceed singly as coexecutor and cotrustee upon the condition that Knox post, in his individual capacity, a bond as security for the costs and attorney fees incurred by the estate or for which the estate might be liable to third parties to the extent that the litigation on the behalf of the estate or trusts is unsuccessful. Because of the foregoing conclusion as to Knox’s standing as a coexecutor and cotrustee to assert claims on behalf of the estate, it is unnecessary to reach his separate argument that he has standing to proceed as a beneficiary.

The trial court also held that Knox lacked standing to bring a breach-of-contract action arising out of the 1983 Agreement because of the absence of “any allegation or showing” that Knox had any agreement with Royce or any contractual relationship with Royce that would support such a cause of action. Knox filed a timely objection to Royce and KMC’s motion under Rule 12(b), Ala. R. Civ. P., and alternatively moved for a continuance to permit discovery pursuant to Rule 56(f), Ala. R. Civ. P. The trial court denied this motion. Because the claims with respect to the 1983 Agreement are fact intensive, it is inappropriate to resolve them on a motion to dismiss based on no allegation or showing having been made. We reverse the trial court’s judgment insofar as it dismisses the claims related to the 1983 Agreement for further proceedings in the event Knox accepts the condition attached to the granting of his petition.

C. Tortious Interference With an Inheritance

Knox asks this Court to recognize a cause of action for tortious interference with an inheritance. Knox relies upon Restatement (Second) of Torts § 744B. Based upon our analysis of the word “disposition” and our conclusion that Knox has done nothing to interfere with Mrs. Kershaw’s dispositions in her capacities as either set-tlor or testatrix, we hold that Knox has suffered no interference with an inheritance even if we were to recognize such a cause of action in this proceeding. We affirm the trial court’s judgment insofar as it dismisses the claim alleging tortious interference with an inheritance.

V. Conclusion

We reverse the trial court’s judgment insofar as it finds Knox guilty of violating the in terrorem clauses in the trusts and the will and insofar as it denies Knox’s petition seeking to join Royce and Davis pursuant to Rule 19, Ala. R. Civ. P., or to dismiss the coexecutors and cotrustees from their duties through a judgment of severance, and we remand the case with instructions that the trial court enter an order granting that relief conditioned upon the posting of a bond as previously described. We also reverse the trial court’s judgment insofar as it dismisses Knox’s claims relating to the 1983 Agreement. Finally, we affirm the trial court’s judgment insofar as it dismisses Knox’s claim alleging tortious interference with an inheritance and insofar as it dismisses KMC as a defendant.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and STUART, J., concur in the result.

      . An in terrorem clause is "[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.” Black’s Law Dictionary 825 (7th ed.1999).

      . Knox Kershaw, Inc. v. Kershaw, 598 So.2d 1372 (Ala.1992); Ex parte Knox Kershaw, Inc., 562 So.2d 250 (Ala.1990); Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126 (Ala.1989); Kershaw v. Knox Kershaw, Inc., 523 So.2d 351 (Ala.1988).

      . Under the 1983 Agreement, because KMC was in arrears in the payment of dividends to her, Mrs. Kershaw had the right to direct Royce’s vote.

      . Presumably, the trial court was referring to those aspects of the declaratory-judgment action dealing with the allocation of estate-tax liability and the proceeds of life insurance that survived Royce and KMC’s motion to dismiss.

      . “It is not denied that [an in terrorem clause] is a legal or valid condition, when attached to a legacy or devise.” 70 Ala. at 505.

      . Royce and KMC state in their brief to this Court: "However, it is possible that, given the very unusual facts of this case, combined with the unusually broad nature of these in terro-rem clauses and the oblique nature of Knox’s attacks, that this Court might conclude that there is an ambiguity which results from the application of the clauses to the facts, which would constitute a latent ambiguity.”

      . "The term 'distribution' when applied to the estate of a deceased person refers to the ultimate division of the estate among the next of kin, in case of intestacy, or among the beneficiaries under a will, after the estate is free from debt. Thomson v. Tracy, 60 N.Y. 174, loc. cit. 180 [(1875)]. As there pointed out, the term is defined in Bouvier’s Law Dictionary to be, in practice, ‘the division, by order of the court having authority, among those entitled thereto, of the personal estate of an intestate, after payment of the debts and charges; and, sometimes, "the division of a residue of both real and personal estate, and, also the division of an estate according to the terms of a will.” ’ " 282 S.W.2d at 184.

      . Such evidence obviously influenced the trial court’s conclusions. The first six pages of the court's order discuss the testimony of Mrs. Kershaw's attorney and Davis as to Mrs. Ker-shaw's wishes. The trial court also observed:
      "However, it is not often that a court has the benefit of such a full and complete background of the reasons the mother wanted to place such provisions in her will and trusts. It is clear that the mother went to great extremes to thwart any further litigation between her sons and, unfortunately, that is exactly what occurred.”