In re Emery (59 Ohio App. 2d 7, 1978)

Castle, J.

This case presents .a question to us. which, to .our knowledge, has never before been considered by the Supreme Court or the Courts of.Appeal of- Ohio: whether a Probate Court errs if it fails to appoint a. nonresident corporation licensed.to do business in this state as executor of a resident testator’s estate-where the testator has named that corporation as executor in his will. ■

-a. The testator-in this ease,;John J. Emery,. designated thei appellant, Girard Tiust Bank,. a Pennsylvania. banking corporation,; and his wife, Irene Emery, -as co-executors ofihis estate in his last wiE and testament dated November 25, -.1968., Irene, Emery predeceased the testator^.-who died on September-24, 1976: The testator’s will was submitted for- probate, on October 18, 1-976, accompanied by an,-application ■ from Girard Ti’Ust to -be. appointed; executor... The wiE-was admitted to probate, and record on December 17, 1976, on the same date that the Probate Court denied Girard Trust’s application to be appointed executor for the reason that Girard Trust, being a nonresident corporation, was not qualified by statute.

The statutory authority by which the Probate Court denied Girard Trust’s application is found in B. C. 2109.21 and E. C. 2113.05. These sections, which deal with the residence qualifications of executors, were amended in 1975 and became effective January 1, 1976. Prior to the amendments, E. C. 2109.21 left the appointment of a nonresident executor to the discretion of the Probate Court. The amendment deleted this discretionary provision from the statute. E. C. 2109.21 now reads, in pertinent part:

“Any fiduciary, except an executor appointed pursuant to section 2113.05 of the Eevised Code, whose residence qualifications are not defined in this section shall be a resident of the state, and shall be removed on proof that he is no longer a resident of the state.”

E. C. 2113.05, the statute pursuant to which executors are appointed, provides:

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