Section 5610, C. G. L., 3738 R. G. S., reads as follows:
"Executors and administrators shall pay the debts of the deceased in the following order:
"1. The necessary funeral expenses.
"2. Debts due for board and lodging during the last sickness of the deceased.
"3. Physician's and surgeon's bills for medicine and attendance, and debts incurred in favor of other persons for nursing, attendance and medicine during the last sickness of the deceased.
"4. Judgment of record rendered and docketed in this State during the lifetime of the deceased, and all debts due to the State, including taxes, and also any taxes due any city or town.
"5. Mortgages, mechanics', materialmen's, laborers', employees' and other liens where the value of the property in *Page 570 the hands of the executor or administrator incumbered by such liens exceeds the amount thereof.
"6. Finally, all other debts whether by specialty or otherwise, without distinction or rank. (Id. Sec. 29; Feb. 12, 1832, Sec. 1.)"
It seems to me that this statute applies as well to married women as to others and that it operates to impose on the estate of a decedent married woman (whose disabilities became dissolved by death eo instanti the taking effect of such statute) liability for the payment of such married woman's funeral expenses, debts due for board and lodging during decedent's last sickness, physician's and surgeon's bills, etc.
It is no justification for refusal to apply the statute to say that the husband may have also become liable for such charges before the death of his wife. On the contrary, it seems to me to be clear that our statute intends to affirmatively provide that those who inherit or acquire benefits from the property of a deceased person, whether that deceased be under disability at the time of death or not, can only take itcum onere the liability which the statute law has imposed on the estate (not on the individual deceased) for the benefit of those whose valuable services have inured to the deceased's benefit during his or her lifetime.
To hold otherwise is going to deprive many married women possessed of estates of the benefit of services during their lifetimes which will be withheld from them in order that their heirs or devisees may take their estates freed from those charges which Section 5610, C. G. L., supra, requires to be paid by executors and administrators after death.
What I have said is in absolute harmony with our opinion in Sisson v. Warren, 106 Fla. 163, 142 Sou. Rep. 885, where *Page 571 the distinction between a debt or charge against the decedent and one against a decedent's estate was clearly made and observed. In First Trust Savings Bank v. Henderson, 109 Fla. 175, 147 Sou. Rep. 248, we held that at common law the real estate of a decedent could not be subjected to payment of a decedent's debts, and that the authority so to do was necessarily statutory origin.
In this case it seems to me that Section 5610, C. G. L.,supra, is applicable to married women as well as others, and that the statute constituted ample authority for authorizing the sale of a portion of the lands of Tillie Snyder, a deceased married woman, to satisfy claims that are payable under that section, namely: funeral expenses of the said Tillie Snyder.
I think the decree should be reversed with directions to dismiss the bill of complaint.