[Cite as In re Estate of Panning, 2014-Ohio-4969.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


In re Estate of Deloris D. Panning                       Court of Appeals No. WD-14-004

                                                         Trial Court No. 20131074



                                                         DECISION AND JUDGMENT

                                                         Decided: November 7, 2014

                                                     *****

        Laurie A. Watson, for appellant.

        Daniel F. Zigray, for appellee.

                                                     *****

        JENSEN, J.

                                               Introduction

        {¶ 1} At issue in this case is an accelerated appeal of a judgment by the Wood

County Court of Common Pleas, Probate Division, that denied appellant’s application for

authority to serve as executor of her mother’s estate. Appellant alleges that the probate
court abused its discretion when it denied her application on the basis that a conflict of

interest existed that rendered her unsuitable to serve as executor. For the following

reasons, we affirm the judgment of the probate court.

                              Facts and Procedural History

       {¶ 2} The decedent, Deloris Panning, died on May 30, 2012, at the age of 89. The

decedent was a resident of Bowling Green, Ohio, in Wood County. She was survived by

two daughters: appellant, Denise Fox, and Madaline Schneider, both Ohio residents.

       {¶ 3} The decedent executed her last will and testament on January 25, 2000,

providing for an equal division of her property between Schneider and appellant. The

will nominated them to serve as co-executors of the estate.

       {¶ 4} On February 21, 2013, appellant filed a notice to file will without probate in

the Wood County Court of Common Pleas, Probate Division. Appellant also filed

decedent’s last will and testament and indicated that additional estate administration

would begin in the future.

       {¶ 5} On May 14, 2013, attorney Philip Schmidt filed an application to administer

the estate. Accompanying the application was Madaline Schneider’s waiver of her right

to administer the estate and her consent to Schmidt’s appointment.

       {¶ 6} On June 24, 2013, appellant filed her own application for authority to

administer the estate, in which she sought to be named sole fiduciary of the estate.

       {¶ 7} On September 20, 2013, Madaline Schneider filed a civil action in the

probate court against appellant. Schneider alleged that appellant wrongfully converted




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decedent’s assets to herself before decedent’s death. The complaint requested that the

unlawful transfer of assets be invalidated. In response, appellant counterclaimed,

alleging that Schneider was unjustly enriched for failing to reimburse appellant for

expenses related to decedent’s home which they inherited in equal shares.

       {¶ 8} A hearing on the applications to administer the estate was scheduled for

December 13, 2013. On that date, attorney Schmidt withdrew his application, and no

hearing was held.

       {¶ 9} By journal entry dated December 16, 2013, the probate court found,

       [B]oth Madaline and [appellant] are legally unsuitable to serve as

       fiduciaries. This finding is due, in part, to the asserted conflicting and

       adverse interests present which render both Madaline and [appellant]

       unable to make objective decisions for the benefit of the Deloris Panning

       estate.

       {¶ 10} The court denied appellant’s application. Appellant filed a notice of appeal

on January 15, 2014, claiming a single assignment of error:

                 I. The trial court abused its discretion by denying Appellant’s

       application for authority to administer her mother’s estate on the grounds of

       unsuitability.

                                          Law and Analysis

       {¶ 11} Appellant argues that she is entitled to serve as executor of her mother’s

estate as a matter of law. She states that “there is no evidence that applicant is unsuitable




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or has a conflict of interest so insurmountable that she couldn’t be reasonably

disinterested in her decision-making.” In the absence of such evidence, appellant

concludes that the probate court abused its discretion in finding appellant legally

unsuitable to serve as executor.

       {¶ 12} “[A]n order granting or refusing letters of appointment is reversible only

upon a finding of an abuse of discretion.” In re Estate of Henne, 66 Ohio St.2d 232, 421

N.E.2d 506 (1981), paragraph one of the syllabus. “Abuse of discretion” suggests more

than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 13} R.C. 2113.05 governs the appointment of executors. It provides, in part,

              When a will is approved and allowed, the probate court shall issue

       letters testamentary to the executor named in the will * * * if the executor

       or coexecutor is suitable, competent, accepts the appointment, and gives

       bond if that is required.

       {¶ 14} Appellant’s competency is not at issue here, just whether she is suitable

under the statute. A person is “suitable” to serve as an executor if she is reasonably

disinterested and in a position to reasonably fulfill her obligations as executor. Henne at

paragraph two of the syllabus. In Henne, the Ohio Supreme Court provided the following

guidance to determine whether a person was “reasonably disinterested”:




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       While acknowledging deference to the testator’s nomination of an executor,

       the court, in determining the limits of a reasonably disinterested applicant,

       may consider factors including, but not limited to: (1) the nature and extent

       of the hostility and distrust among the parties; (2) the degree of conflicting

       interests and obligations, both personal and financial; and (3) the

       underlying and aggregate complexities of the conflict. Id. at paragraph

       three of the syllabus.

       {¶ 15} In this case, appellant concedes that her relationship with her sister is

“acrimonious” and “discordant.” Appellant theorizes, however, that her mother named

both daughters as executors, with the full knowledge of that strained relationship and that

decedent’s intent is entitled to deference by the court. We note that the record is silent as

to the decedent’s state of mind regarding her daughters’ relationship.

       {¶ 16} Moreover, given the lawsuit against her, appellant has a clear conflict of

interest vis-a-vis her role as beneficiary and executor. Appellant can hardly be expected

to defend herself from accusations that she wrongfully converted assets belonging to

decedent while also acting as fiduciary to that estate. Therefore, this court finds that it

was neither unreasonable, arbitrary, or unconscionable for the probate court to find that

appellant’s interest in the estate was antagonistic and adverse to Schneider. “Monetary

conflicts are a consideration for a finding of unsuitability.” Henne, 66 Ohio St.2d at 237,

421 N.E.2d 506.




5.
       {¶ 17} Upon review of the record, we cannot say that the probate court abused its

discretion when it denied appellant’s application for authority to administer the estate.

Therefore, we find that appellant’s sole assignment of error is not well-taken.

       {¶ 18} Appellant also suggests that the probate court applied the wrong statute in

reaching its conclusion. While the court clearly applied the appointment statute, set forth

in R.C. 2113.05, it also commented that if appellant, or her sister, was appointed to serve

as executor, it might prompt “an action for immediate removal” pursuant to R.C.

2113.18.1 We see no error in the probate court’s acknowledgment that certain

consequences might follow if appellant was appointed executor. In any event, the

probate court applied the correct statute and legal framework in reaching its conclusion

that appellant was legally unsuitable to serve as executor.

       {¶ 19} For the foregoing reasons, we affirm the judgment of the Wood County

Court of Common Pleas, Probate Division. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.




1
  R.C. 2113.18(A) provides, “The probate court may remove any executor * * * if there
are unsettled claims existing between the executor * * * and the estate that the court
thinks may be the subject of controversy or litigation between the executor * * * and the
estate or persons interested in the estate.”




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                                                               In re Estate of Panning
                                                               C.A. No. WD-14-004




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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