(dissenting)—A special administratrix was appointed in this case. We can assume that thereby the estate was being adequately cared for and its assets protected until such time as general administration could be *227effectuated, as no showing was made to the contrary. Similarly, protection of assets can be arranged in connection with any estate prior to issuance of letters of general administration.
The language of RCW 11.28.120 [cf. Rem. Rev. Stat., § 1431] is quite clear. The next of kin, in the order enumerated in the statute, are given a preference in connection with the granting of letters of administration. Specifically, subsection four of RCW 11.28.120 [cf. Rem. Rev. Stat., § 1431] reads:
“(4) If the persons so entitled fail for more than forty days after the death of the intestate to present a petition for letters of administration, or if it appears to the satisfaction of the court that there are no relatives or next of kin, as above specified eligible to appointment, or they waive their right, and there are no principal creditor or creditors, or such creditor or creditors waive their right, then the court may appoint any suitable person to administer the estate.” (Italics mine.)
If the above-quoted language means anything at all—and I think it does—it should seem clear that those who have preferential rights thereunder should, at least, be entitled to assert those rights by filing a petition at any time within a period of forty days after the death of the intestate; and furthermore, in connection with this, that such persons certainly should be entitled to an impartial hearing and decision, in the event of conflicting applications for letters of general administration. The right is an important one. It should not be brushed aside lightly. In my opinion, the right to an impartial hearing and decision relative to a petition filed within the forty-day period (by a member of the preferred class) is not inconsistent with the principle (In re St. Martin's Estate, 175 Wash. 285, 27 P. (2d) 326), that the statute (Rem. Rev. Stat., § 1431) is not absolutely mandatory, and that the probate court may appoint a stranger, where the interests of the estate would be served best by so doing. Obviously, (a) “if it appears to the satisfaction of the court that there are no relatives or next of kin . . . eligible to appointment,” or (b) if “they waive *228their right . . . then the court may appoint any suitable person to administer the estate.”
It seems to me that the posting of notices in accordance with RCW 11.28.130 [cf. Rem. Rev. Stat., § 1433] does not diminish the force and effect of the forty-day provision during which members of the preferred classes may apply and thereby become entitled to a hearing regarding the issuance of letters of administration. Construing the statute to the contrary, and appointing the first suitable person for whom application is made, might be more convenient to the first applicant, to his attorney, or even to the probate court. This might even avoid the likelihood or necessity for a decision as between conflicting applicants. But the convenience of the first applicant, his lawyer, or the probate court, under such circumstances, is not the important consideration emphasized by the statute.
The case of State ex rel. Karney v. Superior Court, 143 Wash. 358, 255 Pac. 376, may seem to support the position taken by the probate court in the instant case. However, I think it is distinguishable, and cannot see that it is authority for the action taken by the probate court. In the Karney case, the relator (a member of the preferred class), seemingly ■ seeking appointment as administrator for himself, appeared specially and asked that an order (already entered) appointing someone else be revoked. It does not appear that the action was taken in the Thurston county superior court by the relator in the Karney case within forty days after the death of the intestate. Apparently, it was some time thereafter. In the instant case, relators filed their petition on the thirty-sixth day after the death of Agnes Leith, and before the probate court signed the order appointing Alyce Ekstrom.
It is true there was no showing that the appointment of Alyce Ekstrom would be detrimental to the estate. However, the filing of the first petition by Gertrude Ludden and the filing of the second petition by Frank P. Benner and by those who joined with him, within the forty-day period provided by the statute, in my judgment, entitled them to *229an impartial hearing, and furthermore, to an impartial determination of the question of whether Alyce Ekstrom or Frank P. Benner should be appointed to administer the estate of Agnes Leith. The denial of the motions for reconsideration and for a hearing on Benner’s petition constituted error, or a clear abuse of discretion. I would grant the relief sought herein by relators.