The opinion
Holcom:b, J.
(dissenting) — This decision is indefensible. It ignores and annuls our statute and disregards, without reference or discussion, our own cases which are and should he controlling.
' Rem. Rev. Stat., § 1431 [P. C. § 9947], in so far as material to this case, reads:
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“Administration, of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order:
“(1) The surviving husband or wife, or such person as he or she may request to have appointed.
“(2) The next of kin in the following order:
“(3) One or more of the principal creditors.
“(4) [As quoted by the author of the opinion herein.] ”
It is a manifest abuse of discretion to ignore the first subdivision of that statute.
In
Larson v. Stewart,
69 Wash. 223 , 124 Pac. 382 , Ann. Cas. 1914A, 1011, Chadwick, J., correctly stated:
“It was the policy of the courts from the beginning to give the administration of estates over to those having an interest therein, the right originally being in the state or in the king. Statutes have not changed the rule in this respect, excepting in so far as they establish the order of preference. The reason for the rule remains; that is, that if possible the administration of an estate should be put in the hands of those who have the greatest interest therein. On the other hand, the right of a creditor to administer was not recognized in the beginning, and although finally admitted at common law, it has, we believe, come to be regulated wholly by statute in this country. . . .
“While holding that a surviving husband or wife, or the next of kin in the order named, has a ‘right’ in the strict sense, one founded upon natural justice and equity, we are of opinion that the creditor has no more than a privilege to pray for and receive letters, if the others do not exercise their preference. . . . But it is generally held that, where there is a right of nomination, the court will give heed to the wishes of the interested parties, and upon a showing of competency, will exercise its discretion in favor of the nominee of the moving parties. Our statute does not, by its express terms, give a right of nomination to any of the enumerated classes,
save the sur
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viving husband or wife. They may request that another be appointed.”
(Italics mine.)
In
State ex rel. Cowley v. Superior Court,
158 Wash. 546 , 291 Pac. 481 , 70 A. L. E. 1460, Fullerton, J., said:
“It has never been the policy of the law to give the administration of estates to those who have no interest therein, and the statute has not changed the rule in this respect.
Larson v. Stewart,
69 Wash. 223 , 124 Pac. 382 , Ann. Cas. 1914A 1011. The reason is that strangers to an estate, who have no other interest in the selection of an administrator than the fees and emoluments that go with the office, do not have the same incentive to preserve the estate and cause it to pass to those beneficially interested without waste or loss or delay, as does one having such an interest.
“In this instance, it is true that the person selected by the court as administrator is without beneficial interest in the estate.
But he was the choice of those who were beneficially interested,
and their wishes are entitled to weight. Moreover, the person selected was in actual charge of the decedent’s property at the time of her death, and had been in such charge for a number of years prior thereto. He is the one person of all others who has an intimate knowledge of the property and its value, and manifestly he is better qualified to administer upon it than can be an absolute stranger thereto.” (Italics mine.)
That is true here. The petition of H. W. Sehildknecht, which must be assumed to be true, alleged, as stated by the majority, that Mason, at the time of his death, was a resident of and domiciled in Kentucky and also set forth that decedent left personal property in this state of the value of $250. The petition also stated that it was presented at the request of the heirs, and the proof clearly indicates that not only the heirs, but the personal representatives of decedent, appointed to administer the estate in Kentucky, also requested this appointment.
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That petition also showed that he is the manager of the only bank located in Mason City and was familiar with all of the problems confronting the contractors in their work.
It is incomprehensible how the controlling portion of onr own statute and our cases should be thus wholly disregarded. The order should be reversed.
For this reason, I dissent.