I concur in the judgment, but not for the reasons stated in the foregoing opinion. I adhere to the views expressed in my dissenting opinion filed on the former decision of this case when the judgment and order appealed from were affirmed. That opinion was as follows:
"I am unable to concur in the conclusion that a claim for funeral expenses of a deceased person is recoverable by action against his executor or administrator in his representative capacity. In so far as payment of such a claim is sought from the estate, including the determination of the amount to be paid by the estate, it is my opinion that the probate court having jurisdiction of the estate has sole and exclusive jurisdiction, and that the matter is to be determined in the estate proceedings, where all persons interested in the estate may be heard and the amount that the estate shall pay fixed with a view to the circumstances and condition of the estate. This question does not appear to have been suggested in Potter v. Lewin,123 Cal. 146, [55 P. 783]. I see no difficulty in holding that under our law one having a claim for funeral expenses may present his claim to the court in probate for determination. Although not a creditor of decedent who is obliged to present his claim for allowance to the executor or administrator and the judge, he is by virtue of our statutory provisions in that behalf, a creditor of the estate, entitled to appear in the probate proceeding and there obtain an adjudication as to his claim and an order for the payment of so much thereof as may be found to be a proper charge against the estate. I think that under our statutory provisions this is his sole remedy where he seeks to be paid from *Page 103 the funds of the estate and there is any controversy as to his claim."
I therefore agree with the other members of the court in the conclusion that the demurrer to the complaint should have been sustained.