The opinion
Clifford F. Brown, J.,
dissenting. The Probate Court refused appointment of appellee Bertha L. Buckley as executrix of the Henne estate based on its finding of an alleged conflict of interest. The Probate Court found appellee personally and as executrix of the estate of Bessie Mercer has an interest in the will contest action which that court believed to conflict with her interest in the Henne estate, so that under the circumstances, she is an unsuitable person to serve as fiduciary of the Henne estate and is disqualified by R. C. 2113.05.
The Bertha Henne estate in Washington County will not be benefited in any manner by the results of the will contest action which seeks to set aside the Bessie Mercer will in Morgan County. The only persons who will benefit from setting aside the Bessie Mercer will are the residuary beneficiaries of the Bertha Henne estate. These residuary beneficiaries are parties in their own right in the Morgan County legal action. These residuary beneficiaries are in a position to control the tactics, strategy and vigor of the Mercer will contest action, and need no help or cooperation from ap-pellee Bertha L. Buckley either in her individual capacity or as executrix of the Henne estate. Ergo, there is not even a remote possibility of conflict of interest between appellee as executrix of the Henne estate and her interest in the Mercer *240 estate, and thus no consequent negation of her “suitability” as executrix of the Henne estate.
Allison v. Allison (1968), 15 Ohio St. 2d 44 , and Steinberg v. Central Trust Co. (1969), 18 Ohio St. 2d 33 , the staunch pedestal for the reversal of the Court of Appeals by this court, are inapposite by reason of the vast factual differences in the facts in the case subjudice. Allison and Steinberg, supra, both properly held that one who accepts appointment as an executor under a will may not contest the same will. I would reach the same conclusion as this court did both in Allison and Steinberg, supra. Those two cited cases, however, have no parallel or remote resemblance to the Henne case.
The cited cases upon which appellants rely, namely, In re Estate of Bowman (1957), 76 Ohio Law Abs. 597 , and In re Estate of Young (1957), 4 Ohio App. 2d 315 , both decisions of courts of appeals, stand for the twin propositions that a Probate Court has authority to exercise reasonable discretion in determining whether an applicant for letters testamentary is a suitable person, and that such an order granting or refusing appointment is reviewable for abuse of discretion.
In the case sub judice, the Court of Appeals, in effect, correctly applied the legal principles and standards of Allison, Steinberg, Bowman and Young, supra, in reaching its conclusions “that the evidence supporting a conflict of interest in the appellant does, not warrant the lower court’s decision of unsuitability,” and that “[t]he decision upon appeal is an abuse of the court’s sound discretion.” The Court of Appeals also correctly observed, in support of its foregoing conclusions, that the Probate Court’s “perception of a conflict of interest does not gel with decedent’s apparent earlier decision not to enter the will contest. Decedent was aware of the Mercer contest prior to her death and still chose appellant as her executrix. Aware of the potential conflict Mrs. Henne still exercised a testamentary choice of appointment.”
The term “suitable person” in the statute means a person who is considered to have the capacity and will to discharge duties in a particular case with fidelity and efficiency. In re Estate of Nagle (1974), 40 Ohio App. 2d 40, 44 ; Grossman v. Grossman (1962), 343 Mass. 565, 568 , 179 N.E. 2d 900 . Bertha L. Buckley fulfilled the definition of “suitable person.” *241 Therefore the judgment of the Court of Appeals should be affirmed.
W. Brown, J., concurs in the foregoing dissenting opinion.