It is the opinion of the court that, under section 1643 of the Code of Civil Procedure, funeral expenses rank as a debt of the estate similar in character to other debts in many *Page 165 respects, but payable in preference to all other debts, and that the provision of section 1646, that the executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, expenses of the last illness and allowance made for the family of the decedent, means that as soon as he has funds in his hands applicable to that purpose he must pay these claims. The next sentence of that section, "He may retain in his hands the necessary expenses of administration," we think qualifies the preceding part and allows the administrator, subject to the discretion and power of the court to order him to do otherwise, to retain enough to pay his expenses of administration until it becomes due under an order of the court. We do not mean that he may in all cases hold out enough to pay his commissions, because, under section 1647, the court has control of that matter and may order payment of debts as the circumstances of the estate may require. This would give the court authority to direct the payment of money for funeral expenses prior to the allowance or payment of the commissions. In reversing the order we do not intend to approve, or direct the court to allow, the amount claimed as commissions. Whether the fact that this mortgaged property was lost to the estate without any real administration having taken place, if true, would authorize the court to reduce the commissions to the amount allowed on the balance of the estate we do not say.
The order is reversed with directions to the lower court to proceed to retry the cause in accordance with this opinion and allow the administrator to receive as commissions whatever amount it holds he is entitled to under the law, in preference to the funeral expenses.
Hearing in Bank denied. *Page 166