Estate of Backer

John Backer appeals from a judgment of the probate court denying his petition for appointment as executor of his deceased brother’s estate and appointing decedent’s adult sons, Richard and Thomas Backer, administrators with will annexed. The sole issue on appeal is whether the probate court has discretion to deny appointment of an executor nominated by will on the ground that a conflict of interest exists between such executor and the estate.

We observe initially that the will in which appellant was nominated executor was executed over 40 years ago, on March 31, 1942, at which time the decedent was unmarried and preparing to leave for service in World War II. At that time, the decedent and his appellant brother were partners in a farming venture. In the will, decedent bequeathed his partnership interest to appellant and his nonpartnership property to his parents or, if they predeceased him, to his other brother, Robert. We glean from the somewhat scant record that decedent returned from military service and resumed the farming partnership with his brother.

The decedent Philip died on July 26, 1983, survived by a wife and two adult sons. Apparently unaware of the…