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In re Estate of Farquharson

Probate court did not have to appoint the decedent's choice of executor before it could consider the merits of the caveator's claim that the executor was unfit.

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In her will, Nell Gardiner Glenn Farquharson named her son-in-law William B. Hardegree and the First Union National Bank of Columbus as co-executors of her estate. A codicil made James A. Farquharson, the testatrix’s husband, an income beneficiary of a certain trust, which the parties refer to as the A. G. Edwards account. After the testatrix’s death, the bank declined to serve as co-executor, and Hardegree offered the will with codicil for probate in solemn form. Farquharson filed a caveat “objecting to the appointment of William B. Hardegree as executor” on the ground that Hardegree was unfit because he was prejudiced against Farquharson. Farquharson supplemented the caveat to allege numerous conflicts of interest, in that Hardegree approved payments to his own law firm and commissions to his wife, improperly transferred assets, and improperly persuaded the bank to refuse to serve as co-executor. Farquharson prayed for an order refusing to appoint Hardegree as the executor, or alternatively, making Hardegree a co-administrator with an independent third-party.

At a hearing on the probate petition, Hardegree, as propounder, orally moved to dismiss the caveat, in part because Farquharson did not object to probating the will and in part because the grounds alleged did not state a basis for refusing to appoint the choice of the testatrix. In response, Farquharson was prepared to show at that hearing that Hardegree had such conflicts of interest as would disqualify him from serving as executor.

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