The opinion
Holcomb, J.
(concurring) — I heartily concur in the decision by the majority affirming the decree of the lower court, but dissent from that part of the decision dismissing the appeal of the administrator.
The position of the administrator is doubtless concurrent with that of the state, and his interest was and is to have legally determined the proper distribution of the estate.
The record shows that, on August 17, 1937, the trial court made an order, which was entered, authorizing the administrator to appeal from the decree of distribution entered on July 22, 1937. On September 8, 1937, the trial court vacated its order authorizing the administrator to appeal, which was error.
The administrator, in good faith, had forthwith given notice of appeal on August 17th, in compliance with the authorization of the trial court. It was filed on August
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24, 1937. The jurisdiction of the trial court had therefore terminated with respect to giving the administrator the right to appeal, and it had no power to vacate that order.
In
In re Sullivan’s Estate,
48 Wash. 631 , 94 Pac. 483 , the opinion was written by Hadley, C. J., and concurred in by Mount, Dunbar, Fullerton, Crow and Rudkin, JJ.; or all of the judges but Root, who had disqualified himself. It was there distinctly held:
“As administrator he has an appealable interest, to the end that it is his duty to guard against the error of a distribution without some ample provision for all known obligations of the estate.”
It was no more the duty of the administrator, as administrator, in that case to “guard against the error of a distribution without some ample provision for all known obligations of the estate” than in this.
I do not agree that the
Sullivan’s Estate
case,
supra,
was correctly construed in
In re Tucker’s Estate,
116 Wash. 475 , 199 Pac. 765 , to the effect:
“. . . that the appeal was there entertained, not because of any supposed interest of the administrator in who should take under the decree of distribution, but solely upon the ground that he should preserve the estate until provision was made for the payment of all known obligations, . . .”
The law as stated in the
Sullivan’s Estate
case,
supra,
should remain fixed.
In all other respects, I concur with the majority decision.