The majority opinion recites that the intestate left a solvent estate worth $2,237.49, and that his administratrix expended $1,636.13 of this money for funeral expenses. Ten items comprised these expenses, all of which were paid without requiring the claimants to comply with 100, 101 and 102, Pope's Digest. The good faith of the administratrix is not questioned, but her authority is questioned.
Section 100, Pope's Digest, prescribes the "mode of exhibiting demands" against the estates of deceased persons. Section 101 provides the "form of affidavit" to be appended to such demands, and by 102 it is provided that "before any executor or administrator shall pay or allow any such debt, the same shall be sworn to as aforesaid."
In the case of Acker v. Watkins, 193 Ark. 192,100 S.W.2d 78, it is said that "The sections of the statute referred to have, in a long line of decisions of this court, been construed to be mandatory," and a large number of cases so holding are cited. There is no case to the contrary.
It is not contended that there was any compliance with these mandatory statutes.
It appears that in some states funeral expenses are regarded as expenses of administration, and that in all of the other states where not so regarded they are preferred claims. *Page 1144
The subdivision of the chapter on Administration entitled "Allowance and Payment of Claims," 93 to 117, Pope's Digest, determines very definitely that in this state funeral expenses are "demands against estates." Section 97, Pope's Digest, reads, in part, as follows: "Classification of demands. All demands against the estate of any deceased person shall be divided into the following classes. — First. Funeral expenses. Expenses of the last sickness, wages of servants, and demands for medicines, medical and surgical attention, nursing and hospitalization during the last illness."
Now, without inquiry, it may be conceded that all the ten items, totaling $1,636.13, were legitimate funeral expenses, but, even so, they were all demands against the estate, and should have been probated as required by the statute. They were not claims of the administrator against the intestate, but, if they were, 96, Pope's Digest, would apply to him. That section reads as follows: "An executor or administrator may establish any demand he may have against his testator or intestate by presenting and proving the same to the satisfaction of the court, and the court shall not allow any claim in favor of an executor or administrator against his testator or intestate, unless on legal and competent testimony; and the same affidavit shall be required of an executor or administrator as is required of other claimants."
It was held in a subsequent appeal in the case of Acker v. Watkins, 199 Ark. 573, 134 S.W.2d 523, that an executor could not, by paying claims without requiring their probate, dispense with the necessity of probating them by claiming subrogation in his settlement. It was there said that this could not be done because of the requirements of 102, Pope's Digest.
It appears to Mr. Justice HOLT and this writer that the case of Burns v. Wegman, 200 Ark. 225, 138 S.W.2d 389, is decisive of this case, and requires reversal of the judgment here appealed from. It was there said: "Appellees argue what they term the obvious difference between funeral expenses and liabilities incurred by the deceased during his lifetime. They insist that the statute *Page 1145 does not `in terms' require that claims for funeral expenses, or those occasioned by the last illness, be exhibited to the administrator in order to preserve the priority given by law; that funeral expenses are contracts subsequent to death, and `. . . the administrator and everyone else knows that such indebtedness must be incurred, and notice thereof is unnecessary.' In support of this construction cases in foreign jurisdictions are cited. The argument must be rejected because it ignores the statutory rationale. By express language funeral expenses are made a first charge against a decedent's estate; but by lapse of time the preference may be lost. The legislative authority thought proper to create a fourth classification and to direct that all demands exhibited `. . . as aforesaid after six months and within one year after the first letters granted on the estate . . .' should comprise that group."
The case just cited very clearly holds that claims for funeral expenses are demands against the intestate's estate, and must be probated, and within six months after the issuance of letters of administration, otherwise they lose their priority, and it must follow that, as they must be probated, that action must be taken before the bar of the statute of nonclaim has fallen, otherwise they may not be paid at all. Here, the bar of the statute has fallen, and for this reason also the judgment of the chancery court, sitting in probate, should he reversed.
The majority do not appear to attach controlling importance to the fact recited in the stipulation "That before incurring the expenses and paying the debts, item by item, as above set out, Amelia Cassinelli had conferred with the then probate judge, and was advised by him orally to make such expenditures." To that stipulation we attach no importance. Argument will not be required to show that the probate judge was without power to dispense with the requirement of the law, which all the cases hold to be mandatory.
For the reasons stated, Mr. Justice HOLT and the writer dissent.
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