112 Wash. 197 | Wash. | 1920
An appeal has been taken from an order disposing of conflicting petitions for the appointment of an administrator of the estate of Joseph Utters, deceased. A duly verified petition was filed in the superior court of Spokane county, wherein it was alleged that Joseph Utters died intestate on February 17, 1920, in and a resident of Spokane county, leaving estate in that county; that the next of kin and heir
Some days later a petition for the appointment of another party, a resident of Spokane, was filed by Anna Marschall, wherein, objecting to the appointment of Prescott, she alleged, among other things, that she was a resident of New York, a sister of the deceased, and that the only other heirs at law of the deceased were certain sisters, nephews and nieces residing in Germany. Other and formal written objections to the appointment of Prescott were filed by her and also by her attorneys, alleging that she had a preference right of appointment which she exercised by her application for the appointment of the party designated in her petition; that forty days had not elapsed after the death of the decedent when the creditor’s petition was filed; that the so-called creditor was not a creditor within the terms of the applicable statute, nor entitled to nominate an administrator; and that said Prescott is not a fit and suitable person to act as such administrator.
Later the cause came on for hearing with all the parties present. Renewed objections to the consideration of all the petitions, other ‘than that of Anna Marschall, were overruled and testimony taken. The court entered findings, among other things, to the effect
Upon her appeal, Anna Marschall contends that the court was without jurisdiction to entertain the petition for the appointment of Prescott within forty days after the death of the decedent. But we are of the opinion the contention cannot be maintained. The first petition filed was in the form prescribed and contained all the essentials necessary to give the court jurisdiction by the terms of § 62, ch. 156, p. 657, Laws of 1917, known as the probate code; and when it appeared, as it did
It is further contended that “appellant, having nominated, within forty days, a suitable and competent person as administrator, it was the duty of the court to appoint such nominee ’ \ The order of preference in the appointment of an administrator is designated in § 61 of the probate code, Laws of 1917, p. 656. So far as it is material here, it provides:
“ (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: 1, child or children; 2, father or mother; 3, brothers or sisters; 4, grandchildren.”
It is to be observed that subd. 1 gives to a surviving husband or wife the right to nominate another for appointment by the court, while subd. 2 is silent upon the subject of any such right on the part of the next of kin. The right accorded the next of kin is a preference to appointment only, in the order named; all of whom are preferred over persons described in subsequent subdivisions of the section; provided, of course, such next of kin are not nonresidents of the state, for in such case they are not qualified, under § 87 of the probate code. A suggestion made by the next of kin of a fit and suitable person for appointment as administrator, while fraught with considerable persuasion, is not controlling in shaping the discretion and judgment of the court making the appointment. In this case there was abundant and convincing evidence to support the selec
Affirmed.
Holcomb, C. J., Parker, Main, and Mackintosh, JJ., concur.