dissenting. 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.