COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68628 IN RE: ESTATE OF JANET N. : PRICE : : JOURNAL ENTRY : and : OPINION : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 1995 CHARACTER OF PROCEEDING : Civil Appeal from : Common Pleas Court : Probate Court Division : Case No. 1072413 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant, Cheryl Iacofano: Lawrence R. Hupertz 925 Euclid Avenue Suite 1995 Cleveland, Ohio 44115 For appellee, Delphine Mundell: Eileen Kelley Thomas J. Scanlon DONAHUE AND SCANLON 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113 For appellee, Ann Hawkins, Robert W. Monroe Administratrix of the Estate of HAWKINS & COMPANY, L.P.A. Janet N. Price: 1240 Leader Building Cleveland, Ohio 44114 -3- NAHRA, J.: Appellant, Cheryl Iacofano, is appealing the probate court's denial of her application for authority to administer the estate of Janet N. Price. The appellees in this action are Delphine Mundell, the sole beneficiary of the estate and Ann Hawkins, Administratrix. Appellant contends the trial court abused its discretion in finding her not reasonably disinterested and unsuitable to serve as executrix. For the following reasons, we affirm. A will executed by Price in 1984 was admitted to probate. The will named Price's friend Delphine Mundell as the sole beneficiary, and named Gayle Eble, a niece of the decedent, as executrix. Appellant, also a niece of the decedent, was named as successor executrix. A will contest was brought by the three sisters of the decedent, one of whom was appellant's mother. The sisters claimed that there was a will subsequent to the 1984 will which revoked the legacies to Delphine Mundell. The sisters asserted that Mundell destroyed the subsequent will. Eble, the executrix, stated she did not believe the 1984 will was the decedent's final will. Eble was removed as executrix for purposes of the will contest only, although she continued to administer the estate. Ann Hawkins, one of the beneficiary's lawyers, was appointed special administratrix for purposes of the will contest. At the time of the will contest, appellant orally requested to be named executrix in place of Eble. Appellant told the trial -4- judge she could not uphold the 1984 will because she believed it was not the decedent's final will. The trial court ultimately resolved the will contest in favor of Mundell and upheld the 1984 will. This court affirmed the trial court's decision. Gockel v. Eble (1994), 98 Ohio App.3d 281. The Ohio Supreme Court denied jurisdiction of the will contest action. Gockel v. Eble (1995), 71 Ohio St.3d 1491. Subsequently, Mundell filed a motion to remove Eble as executrix because of Eble's conduct in administering the estate. Eble resigned as executrix. Appellant then motioned to be appointed executrix. A hearing on appellant's motion was held. Appellant testified that she had a bachelor's degree in education and had sufficient time available to perform the duties of an executrix. Appellant stated she wanted to be executrix to fulfill her aunt's wishes. She was not motivated by executrix fees and was willing to forego the fees and also to personally pay the attorney fees. Later, appellant stated she would take executrix fees and attorney fees "if it was legal." Appellant stated she was not a party or witness in the will contest. Although at the time of the will contest she could not uphold the will, she could uphold the will now that the courts have ruled the will was valid. Appellant admitted it does upset her that her mother and her aunts were cut out of the estate. Appellant's motion was denied and Ann Hawkins was appointed administratrix. Appellees assert that all of the assets have been distributed to the beneficiary, except funds to cover the remaining -5- expenses of the estate. Hawkins is in the process of filing amended tax returns and after that the estate will be closed. Appellees attach an affidavit to their appellate brief to support these assertions, but there is nothing in the trial court record supporting these allegations. Appellant's sole assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S APPLICATION TO ADMINISTER THE ESTATE OF JANET N. PRICE AND FINDING HER NOT REASONABLY DISINTERESTED AND UNSUITABLE TO SERVE AS EXECUTRIX. As an initial matter, we must address the issue of whether the denial of an application for authority to administer the estate is a final appealable order. The order here is a final order if it was made in a special proceeding and affects a substantial right. See R.C. 2505.02. In the recent Ohio Supreme Court decision of Polikoff v. Adam (1993), 67 Ohio St.3d 100, the law was recently changed as to what constitutes a special proceeding. The balancing test of Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253 was overturned. The law prior to Amato was reinstated. The prior law stated that a special proceeding is one that is not recognized at common law or in equity and is specially created by statute. See Polikoff, supra. The Ohio Supreme Court has held that the decision to grant or deny letters of testamentary is appealable. In re Estate of Henne (1981), 66 Ohio St.2d 232. Henne did not rely on the balancing test of Amato, but relied on case law which predated Amato. See In re Estate of Young (1964), 4 Ohio App.2d 315. See, also, In re -6- Estate of Bowman (Cuy. App. 1957), 76 Ohio Law Abs. 597. Thus, the Henne decision is still valid under Polikoff. Additionally, the process of applying for authority to administer the estate is a proceeding created by statute and not recognized at common law or equity. The proceeding affects a substantial right of the applicant. The order here was a final appealable order under Polikoff. Next, we will address appellees' contention that this appeal is moot. The facts in the trial court record do not show the appeal is moot. This court cannot consider matters dehors the record. State v. Ishmail (1978), 54 Ohio St.2d 402. An exhibit attached to an appellate brief and not filed with the trial court is not part of the record. Middletown v. Allen (1989), 63 Ohio App.3d 443, 449. We may now turn to the merits of this case. When a will is approved and allowed, the probate court shall issue letters of testamentary to the executor named in the will if the trial court determines he is suitable and competent. R.C. 2113.05. The decision of the trial court as to the suitability of a person to be executor can only be reversed if the trial court abused its discretion. In re Estate of Henne, supra, In re Estate of Roch (1991), 81 Ohio App.3d 161, In re Estate of Pfahler (19189), 64 Ohio App.3d 331. The trial court abuses its discretion if its decision is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. -7- A person is suitable to be the executrix if she is reasonably disinterested and is in a position to reasonably fulfill the obligations of a fiduciary. Henne, Roch, Pfahler, supra. In determining whether an applicant is reasonably disinterested, the court may consider: (1) the nature and extent of the hostility and distrust among the parties; (2) the degree of conflicting interests and obligations, both personal and financial; and (3) the underlying and aggregate complexities of the conflict. Henne, supra, at 232, par. 3 of the syllabus. See, also, Roch, Pfahler, supra. In this case there was evidence of hostility, distrust and conflicting interests between appellant and the beneficiary. Appellant was upset her mother and her aunts were cut out of the estate. Appellant had previously stated she did not believe the 1984 will was the final will. Although appellant testified she could uphold the will and harbored no resentment for the beneficiary, the trial court was entitled to disbelieve this testimony. See State v. Harriston (1989), 63 Ohio App.3d 58, 63, Thanos Contracting Co. v. Carroll (Sept. 22, 1994), Cuyahoga App. Nos. 65810, 65824, 67222, unreported. The credibility of witnesses is primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Appellant contends the trial judge's questions about executrix fees demonstrated that the court acted unreasonably. Whether appellant had a monetary motivation to become executrix was relevant to determine her suitability. Furthermore, it appears the -8- trial court denied appellant's application because of the conflict between the parties and not because appellant would accept an executrix fee. The trial court did not abuse its discretion in denying appellant's application. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -9- Costs assessed against appellant, Cheryl Iacofano. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court -- Probate Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENY, JAMES D., P.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .