Summary
In Allison v. Allison, 15 Ohio St.2d 44, 49-50 (1968), the court decided that, because the executors' personal interests were served by their refusal to waive the deceased's physician-patient privilege, there was an inherent conflict of interest which required their removal as executors.
Summary of this case from District Attorney for Norfolk Dist. v. MagrawOpinion
Nos. 41101 and 41102
Decided June 19, 1968.
Wills — Contest — Parties — Right to maintain action to be determined, when — Impartiality required of executor — Dual capacity — Executor and beneficiary — Evidence — Confidential communications.
1. If a substantial doubt arises in respect to the right to maintain an action to contest a will, the question should be submitted to the court for its determination before the trial of such action is commenced. ( Comer v. Comer, 175 Ohio St. 313, approved and followed.)
2. An executor of a will should exercise impartiality in the performance of his duties as such fiduciary.
3. Where a son and two daughters, sole heirs at law and next of kin of the testatrix, are nominated as coexecutors in her will and are appointed to said offices by the Probate Court, are also beneficiaries under the will, as are their children, in a trust created by the will, and said coexecutors, as individuals, bring an action to contest the will, which if successful would cause the entire estate to pass to the plaintiffs under the statute of descent and distribution (Section 2105.06 of the Revised Code), and deny any interest to other beneficiaries named in the will, and furthermore, as such coexecutors, there being no surviving spouse of the testatrix, use the authority conferred upon them by Section 2317.02 of the Revised Code to their advantage during the trial, to grant or to refuse consent to the attorney of the testatrix or her physician, to testify relative to confidential communications of the testatrix when in the relationship of client and attorney, or patient and physician, and deny such privilege to other parties in interest, there is a conflict of interest created between plaintiffs, as individuals, and their obligations as coexecutors, and they may not maintain such will-contest action without resigning as executors.
APPEALS from the Court of Appeals for Clark County.
This action, a will contest, was commenced in the Court of Common Pleas of Clark County on October 28, 1964, by James F. Allison, Irene M. Tavenner and Betty L. Provenzale. They allege in their petition that they are the son and daughters of Edith M. Allison, testatrix, and are her sole heirs at law and next of kin. The testatrix nominated the three above-named plaintiffs as coexecutors of the will. After probate, the Probate Court of Clark County appointed them coexecutors and they waived service of summons as such fiduciaries.
C.D. Richmond was named trustee of a trust created by the will. In the opinion by Sherer, J., of the Court of Appeals, this trust was described as follows:
"* * * By the terms of the trust, he [trustee] was to take charge of certain real and personal property, pay the income therefrom to the appellees, James Allison, Irene Tavenner and Betty L. Provenzale, and, upon the death of the survivor of them, the trust was to terminate and all of the property was to go to the children of the above named [plaintiffs], share and share alike." (Emphasis added.)
Richmond, in his capacity as trustee, was a party to the will contest and appeared also as counsel in behalf of the trust. The three plaintiffs as coexecutors, were parties to the action as fiduciaries and also as plaintiffs. (Section 2741.02 of the Revised Code.) The estate was appraised at nearly $100,000 upon inventory.
Early in the will contest, the trustee moved to dismiss the action for the reason that there existed a conflict of interest between the plaintiffs, as individuals, who sought to invalidate the will, and the same three persons, as coexecutors, whose duty was to protect impartially the interests of all the parties until their rights were determined, and, in particular, to respect the trust created by the testatrix for the benefit of her grandchildren.
The motion was overruled and the trial proceeded.
Numerous issues were vigorously contested. A voluminous record was compiled. The cause was finally submitted to the jury. The jury returned a verdict against the will and the judgment of the Court of Common Pleas was entered on the verdict.
The judgment of the Court of Common Pleas was reversed by the Court of Appeals, and the cause was remanded for further proceedings. A motion to certify the record of the Court of Appeals to this court was allowed for the reason that matters of great general interest are presented.
Messrs. McKee, Schwer, Taggart Wehler and Mr. Thomas T. Taggart, for appellants in case No. 41101 and appellees in case No. 41102.
Messrs. Richmond Richmond and Mr. Charles D. Richmond, for Charles D. Richmond, Trustee.
The assignments of error in the Court of Appeals may be stated as follows:
First assignment of error.
This assignment of error contains two parts. They will be referred to as A and B.
(A) The trial court erred in refusing to conduct a full and complete preliminary hearing on the question of the capacity of the plaintiffs individually to maintain this action, in view of the fact that they are also serving as executors of the will.
(B) The trial court erred when it refused to admit in evidence a deed conveying certain real property of the estate executed by the coexecutors purporting to act under the authority conferred upon them by the will, after their action to contest the will had been commenced.
The remaining assignment of error.
The trial court erred when it failed to treat the trustee's motion to dismiss as a motion to stay the proceedings during such time as appellants continued to appear in the case in dual capacities as individual plaintiffs and as defendants-executors.
Comer v. Comer, 175 Ohio St. 313, is dispositive of the question raised in paragraph (A) of the first assignment of error. The first paragraph of the syllabus reads:
"The right to maintain an action to contest a will, where placed in issue, should be determined by the court without a jury before the trial on the issue of the validity of the will."
Gibson, J., at page 315 in the opinion, said:
"* * * This is clearly a preliminary question for the court's determination, since it does not involve the question of whether the writing produced is the last will or codicil of the testator. See Zinn v. Ferris, Exr. (1912), 15 C.C. (N.S.), 148, affirmed without written opinion, 88 Ohio St. 555; Wilson v. Wilson (1917), 8 Ohio App. 258; Arnold v. Pease (1914), 24 O.D. 41, 17 N.P. (N.S.), 225."
The failure of the trial court to dispose of the question of conflict of interest preliminary to trial may have been erroneous, but much error was not prejudicial.
The determination of the question of conflict in interest, in the case at bar, does not involve the question of whether the writing produced is the last will or codicil of the testatrix.
In view of our holding, no significance can be attached to the refusal of the trial court to permit the admission of the deed in evidence. In the event of a new trial, a different set of facts and circumstances will probably make the offer in evidence of the deed unnecessary. Section 2113.23 of the Revised Code may be worthy of consideration in connection with the validity of the title conveyed to the grantee by the deed in question.
This assignment of error requires an answer to the question: Does the record in this cause disclose a conflict of interest, as a matter of law? Our answer is in the affirmative.
The plaintiffs brought this action to invalidate the will. If successful, each plaintiff would stand to gain substantial financial enrichment. As coexecutors they are called upon to assume a solemn trust imposed upon them by their mother in her will, which trust they accepted. They also have accepted a solemn obligation to their own children. As coexecutors, the plaintiffs have the obligation to carry out the trust as provided in the will. It is to their financial disadvantage to do this; hence, the plaintiffs seek to nullify the will and its trust.
As coexecutors, the plaintiffs are given effective control over the admission of material evidence by the provisions of Section 2317.02 of the Revised Code. This section, as it applies to the case at bar, provides, that an attorney may not testify concerning a communication made to him by his client in that relation, nor shall a physician testify concerning a communication made to him by his patient in that relation, except "* * * by the express consent of * * * the executor or administrator of the estate of such deceased client or patient * * *."
The plaintiffs-executors refused to permit either the attorney of the testatrix or her physician to testify in behalf of the will, but called the physician to the witness stand on their behalf. The testimony of the attorney or physician of a deceased testatrix relative to mental condition of the testatrix, her statements as to the will, her execution of the will and other incidents occurring and communications made before and after the execution of the will may be significant. It appears that the coexecutors exercised the powers granted to them by Section 2317.02, supra, for the benefit of themselves as plaintiffs but refused the same consent to other interested parties.
It is hardly necessary to discuss this question any further. It is obvious that there is a conflict of interest between the private, individual desires of the plaintiffs and their obligations of trust as executors.
The same law firm represents the plaintiffs as such in the will contest and also represents the coexecutors in connection with their obligations under the terms of the will.
The appellants in case No. 41101 (plaintiffs below) submit two questions in their brief:
1. "Must the children and sole next of kin of a decedent, who are appointed executors of her estate and who undertake the duties as executors in the administration of said estate, resign their appointment as executors if they thereafter file an action as said next of kin to contest the will of said decedent?"
Answer: If the executors-plaintiffs, as individuals, have a financial interest in the outcome of the will contest adverse to the financial interests of other parties in interest, and the powers of the executors, as such, may be used to their advantage as individuals and to the disadvantage of other parties in interest, in a trial of said contest, the executors may continue in that capacity, providing the will contest is dismissed and the estate distributed according to the terms and provisions of the will, or if the executors, as individuals, wish to continue the contest they may do so if they resign and impartial fiduciaries are appointed for the estate.
2. "Must the duly appointed and acting executors appointed under a will either defend said will in an action in which said will is contested or resign their appointment as said executors?"
Answer: Coexecutors who are also plaintiffs in an action to contest the will are not in a position to defend the will at the same time, and must resign their appointments as executors.
From the foregoing, it follows that the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS and O'NEILL, JJ., concur.
If the rule were that an executor is unconditionally charged with the duty of defending the will, I would be compelled to concur. However, that is not the law. See Hecker v. Schuler, 12 Ohio St.2d 58.
Therefore, I would permit the executor-beneficiaries to maintain the position which they have assumed here, namely, that the will is invalid but that if a jury decides otherwise, they have the right to administer the estate thereunder as the testator intended. During the pendency of the will contest, their duties as fiduciaries are so circumscribed by the statutes as to constitute them no more than custodians of the assets, so that no serious conflicts of interest should arise.
However, as to Section 2317.02, Revised Code, I would hold that the appellants' decision to contest the will and to call the decedent's physician as a witness against her mental competency should be construed as their "express consent" to the testimony of any other physician or attorney as to her competency.
BROWN, J., concurs in the foregoing dissenting opinion.