(dissenting) — I dissent. I agree that the failure of the executors in this case to obtain an order of solvency before proceeding with the administration of the estate without court intervention constituted a valid ground for their removal. However, removing executors from estates is peculiarly in the wide discretion of the trial court. State ex rel. Carlson v. Superior Court, 47 Wn. (2d) 429, 287 P. (2d) 1012 (1955); In re Wolfe’s Estate, 186 Wash. 216, 57 P. (2d) 1066 (1936).
In the instant case, the trial court did not remove the executors on this ground alone. This was only one ground considered with several others. I am satisfied other grounds considered by the trial court were not valid grounds to support the removal of these executors. Had the trial court known that these grounds were not valid, we can only speculate in concluding it would have felt compelled to remove the executors. This is particularly significant, under the facts of this case, where the sole heir was one executor and her coexecutor was her attorney designated by her deceased husband, and where the completion of the estate’s administration was under the court’s control.
A ground for removal to which the appellants assign error was as follows:
“. . . the acts of said Executor and Executrix are adverse to the best interests of creditors, who have come into existence as a result of the operation of said business, and said Executor and Executrix [have] failed to faithfully perform their duties and trust, as required by law. ...”
*136The appellants having failed to secure an order of solvency which was essential for them to administer the estate without court intervention left the appellants without authority to operate the business and incur any indebtedness other than necessary to preserve the assets and wind up the estate according to the applicable statutes, unless they obtained permission from the court. This permission was not obtained; therefore, any obligations incurred by the appellants in operating the business would not bind the estate. Larson v. Duclos, 46 Wn. (2d) 334, 281 P. (2d) 458 (1955).
The ground that the acts of the executors are adverse to the best interest of the creditors assumes a fact which has not been determined by the trial - court, viz., that those denominated as creditors are in fact creditors of the estate. Therefore, an actual determination must first be made by the trial court as to whether these persons furnishing credit to the executors in the operation of the business are creditors of the estate, before the order of removal can be based on this ground.
One of the grounds for removal to which appellants assign error was as follows:
“ . . . the Executrix Vernitta Phyllis Beard caused a claim on her behalf in the sum of $53,741.38 to be filed and approved more than six months after the date of the first notice to creditors . . . ”
The record discloses that this was a claim for reimbursement of funds used to pay creditors’ claims existing against the estate at the time of the testator’s death. The record further shows the claim was withdrawn; consequently, no damage resulted to the estate for which the executors could be charged. Under these circumstances, the trial court erred in holding that obtaining approval of this claim, filed more than six months after date of first notice to creditors, was a ground upon which to base the order of removal.
Another ground in the trial court’s order of removal to which the appellants assign error was as follows:
*137“. . . the Executrix . . . did also secure an order setting aside a portion of the real property in lieu of homestead and also providing for a widow’s allowance retroactive to the date of death, both of which orders were secured without advising the Court of the insolvency of said estate. . . . ”
My examination of the record discloses no irregularity on the face of the petition for the award in lieu of homestead and the order entered. There is nothing in the record indicating what transpired at the hearing on this petition. This was not a proceeding to vacate the order; therefore, it was error for the court to conclude that the order for an award in lieu of homestead was improperly obtained. Neither was there anything in the record indicating any irregularity on the face of the petition for a widow’s allowance and the order entered, nor is there any record of the proceedings at the hearing on this petition. Again this was not a proceeding to vacate the order. The trial court erred in holding that the family allowance was improperly obtained.
This court should consider the question of validity of the above grounds which I believe is correctly determined by the above analyses. The trial court should be permitted to exercise its discretion as to the removal of these executors in the light of this determination.
The order removing the executors should be reversed and the case remanded for further hearing and determination not inconsistent with the views herein expressed.
The parties should bear their own costs of this appeal.