The opinion
Cynthia Westcott Rice, Judge,
dissenting.
{¶ 33} Because the majority’s decision is an improper substitution of its judgment for that of the trial court, and because the majority misapplies the decision of the Ohio Supreme Court in
In re Estate of Zonas
(1989), 42 Ohio St.3d 8 , 536 N.E.2d 642 ,1 respectfully dissent.
{¶ 34} In
Zonas,
the Supreme Court applied R.C. 2107.75 and noted, “If an executor’s actions do not benefit the entire estate but instead are merely done to benefit himself personally, then his fees and his attorney fees generally are disallowed.” Id. at 12 , 536 N.E.2d 642 . Also, in deciding whether to award attorney fees from a decedent’s estate, courts should consider whether the executor acted in good faith either in propounding the will to probate or in defending it. Id. at 11 , 536 N.E.2d 642 . Finally,
Zonas
precludes the recovery of attorney fees for the beneficiaries of a defeated will, or for their attorneys. Id. at syllabus. Here, the trial court applied
Zonas
and concluded that appellants were not entitled to attorney fees under R.C. 2107.75. We may reverse that decision only if we find that the trial court abused its discretion.
{¶ 35} Bernard had an extraordinary interest as a beneficiary in defending the will contest. He and his wife stood to inherit approximately $335,000 if the will was found valid. When the will was found invalid, Bernard and his wife received nothing. Thus, this case is readily distinguishable from
Carr,
4th Dist. No. 96CA1713, 1996 WL 679991 , on which the majority relies. There, the estate was to be divided between the executor/beneficiary, who was a grandchild of the decedent, and another grandchild. Id. at 1-2, 1996 WL 679991 . Thus, the executor’s interest in seeing the will upheld was not solely for her benefit. Here, to assume as the majority does that Bernard’s interests as executor/beneficiary were any different from his wife’s is to ignore reality.
*132
(¶ 86} A more appropriate case to apply in deciding the instant case is
Vogel v. Thiel
(June 26, 1990), 3rd Dist. No. 16-89-6, 1990 WL 88777 . In that case, the court, applying
Zonas,
42 Ohio St.3d 8 , 536 N.E.2d 642 , found that “the controlling factor concerning whether an executor will be reimbursed is ‘his personal interest or lack thereof in the result of the contest.’ ” Id. at 3, 1990 WL 88777 , quoting
Zonas,
42 Ohio St.3d at 9 , 536 N.E.2d 642 . Here, as in
Vogel ,
Bernard’s interest in defending the will was almost entirely based on his interest in seeing the overwhelming majority of the decedent’s estate distributed to him and his wife. Appellants failed to show how Bernard’s actions benefited the estate.
{¶ 37} The trial court acknowledged that an executor who is also a beneficiary might be entitled to attorney fees under R.C. 2107.75; however, the trial court found that Bernard had a substantial personal interest in the will-contest action, as did his wife, who held a parallel interest. The trial court also found that Bernard’s actions in defending the will contest did not benefit the estate. Finally, Bernard and his wife arranged for the preparation of a will after an attorney had refused to do so because the decedent, who was in a geripsychiatric ward suffering from dementia, lacked testamentary capacity. These facts support the court’s reliance on
Zonas,
42 Ohio St.3d 8 , 536 N.E.2d 642 . In overruling the trial court’s judgment, the majority improperly substitutes its judgment for that of the trial court. I would affirm the trial court’s decision with respect to appellants’ second assignment of error and would find appellants’ first assignment of error moot. Therefore, I respectfully dissent.