In re ESTATE OF RICE, 161 Ohio App. 3d 847

Carr, Judge. {¶ 1} Appellant, Craig J. Rice, appeals the decision of the Medina County Court of Common Pleas, Probate Division, which removed him as executor of his mother’s estate. This court reverses. I {¶ 2} About two months before his mother’s death, appellant downloaded a will kit from the Internet. Appellant presented the will to his mother, Mary Ellen Rice, and she executed it before two witnesses. The will nominated appellant as executor of the estate. Appellant is not a beneficiary under the will; however, his fiancé is. {¶ 3} Mary Ellen Rice died September 23, 2003.

On October 14, 2003, appellant filed an application to probate the will and an application for authority to administer the estate. The will was admitted into probate, and appellant was appointed executor of the estate without objection. {¶ 4} On November 4, 2003, appellees, Gregory Rice, Michael J. Rice, and Richard J. Rice, appellant’s brothers and beneficiaries under the will, filed a motion to remove appellant as executor of their mother’s estate. On November 19, 2003, the trial court held a hearing regarding the motion to remove appellant as executor.

At the hearing, the trial court heard the testimony of appellant; Patrick Rice, appellant’s brother; and Michelle Smith Rice, the decedent’s granddaughter and a beneficiary under the will. However, neither Patrick nor Michelle is a party in the present appeal. In an entry dated November 25, 2003, the trial court granted the motion to remove appellant as executor of his mother’s estate. {¶ 5} Appellant timely appealed, setting forth three assignments for review. Appellant’s second and third assignments of error have been combined to facilitate review.

First Assignment of Error The trial court erred as a matter of law in ordering the removal of the appellant as executor of the estate by application of the statutory “suitable person” standard. {¶ 6} In his first assignment of error, appellant argues that the trial court erred in granting appellees’ motion to remove him as executor of his mother’s estate. Specifically, appellant avers that the trial court relied on R.C. 2113.05 rather than R.C. 2109.24 in deciding to grant appellees’ motion to remove him as executor of his mother’s estate.

This court agrees. {¶ 7} Both R.C. 2109.24 and 2113.18 provide the statutory basis for removing a fiduciary or executor. {¶ 8} Under R.C. 2109.24, “The court may remove any such fiduciary * * * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law.” {¶ 9} R.C. 2113.18(

A) states, “The probate court may remove any executor or administrator if there are unsettled claims existing between him and the estate, which the court thinks may be the subject of controversy or litigation between him and the estate or persons interested therein.” {¶ 10} R.C. 2113.05, which governs the appointment of an executor, states: When a will is approved and allowed, the probate court shall issue letters testamentary to the executor named in the will or to the executor nominated by holders of a power as described in

section 2107.65 of the Revised Code, or to the executor named in the will and to a coexecutor nominated by holders of such a power, if he is suitable, competent, accepts the appointment, and gives bond if that is required. {¶ 11} In the present matter, the trial court began its analysis with a discussion of R.C. 2113.05.

The court noted that, pursuant to R.C. 2113.05, an executor must be “suitable” and “competent.” The court then discussed the factors that must be considered when determining whether an executor is suitable. {¶ 12} In the end, the trial court concluded that “[t]he executor should be removed because he is not suitable.” The trial court’s reliance on R.C. 2113.05 was in error. Pio v. Ramsier (1993), 88 Ohio App.3d 133, 623 N.E.2d 174. The removal of a fiduciary is governed by R.C. 2109.24 and 2113.18. Consequently, the trial court examined appellant’s removal in light of the wrong statute.

Appellant’s first assignment of error is sustained. Second Assignment of Error The decision of the trial court to remove the named executor of the estate of Mary Ellen Rice is against the manifest weight of the evidence and shows a clear abuse of discretion. Third Assignment of Error The probate court erred in the appointment of an administrator with will annexed in derogation of the statutory order of preference of appointment. {¶ 13} In his second assignment of error, appellant avers that the trial court abused its discretion because its decision is against the manifest weight of the evidence.

Appellant argues in his third assignment of error that the trial court erred in appointing an executor because it failed to comply with R.C. 2113.06. {¶ 14} This court’s resolution of the appellant’s first assignment of error renders appellant’s second and third assignments of error moot; therefore, this court declines to address them. See App.R. 12(A)(1)(c). II {¶ 15} Appellant’s first assignment of error is sustained. The second and third assignments of error are moot.

The judgment of the Medina County Court of Common Pleas, Probate Division, is reversed, and the cause is remanded for proceedings consistent with this opinion. Judgment reversed and cause remanded. Moore, J., concurs. Slaby, J., dissents.