(dissenting). I must respectfully dissent from the decision of the majority.
The primary guideline in construction of a will is the intent of the testator as expressed therein. A reading of the will in the instant action leads to only one conclusion — that it was the testator’s intention to have one of the two attorneys named in Clause VI as the attorney for the estate. Thus, we start with the proposition that the intent of the testator should control. Opposing this principle is the doctrine or rule of public policy that the executor should be allowed to select the attorney in order that they may work harmoniously together in probating the estate.
In the instant action, the will itself reveals that the testator reposed singular confidence in the named attorneys because of their “complete familiarity” with his estate and financial affairs. Clause VI of the will is couched in mandatory, rather than suggestive or precatory, language, and the public-policy doctrine cannot be applied so as to overcome the clear mandate of the testator contained in his will. If the named attorney is negligent in carrying out his duties, he may be removed for cause by the executor. However, he cannot be negligent until he acts, and there is nothing in the record to indicate that he would be in any way incompetent to handle the matters entrusted to him by the will. On the other hand, the executor holds a position similar to that of a trustee, and is under a duty to carry out the wishes of the testator. He is free to decline this trust if he is not satisfied with the conditions imposed upon him by the testator.
I see no reason, either in fact or policy, to overturn the decision of the trial court, and would therefore affirm.