Tillie Snyder died. She was a married woman and left surviving her a husband, William Snyder, and a daughter, Dora Rickey. Mrs. Snyder died seized and possessed of certain lands in Hillsborough County. About three years after her death her husband, William Snyder, died. Prior to his death he and his daughter, Mrs. Rickey, who succeeded to the title by descent, leased the property to R. L. Register, who continued in actual possession as their tenant until Mr. Snyder's death and afterwards Mrs. Rickey's tenant.
James R. Weeks, as administrator of Mrs. Snyder's estate, procured an order from the county judge to take possession of the land and sell it for the payment of some debts alleged to be due by Mrs. Snyder. The debts consisted of $3.60 due Doctor R. C. Black for professional services and *Page 567 to James R. Weeks in the sum of $85.00. The property was sold under those orders to Margaret M. Fletcher for the sum of $225.00. A deed was executed to her by the administrator.
In March, 1931, Mrs. Dora Rickey exhibited her bill in the Circuit Court for Hillsborough County against Mrs. Fletcher and her husband to quiet title to the land, to cancel the deed to her as a cloud on the title, and to declare the order of sale to be void as being in violation of the Constitution, Article XI, Sec. 2, and not within the jurisdiction of the county judge to make.
Mrs. Fletcher and her husband answered the bill. It was averred that the debt due to James R. Weeks as administrator in the sum of $85.00 was for balance due for funeral expenses of Mrs. Snyder and that her real property was liable for that debt which was a charge against her estate; that her husband, from the date of her death to the date of his death, was insolvent.
Testimony was taken and the chancellor in September, 1932, entered a final decree granting the prayer of the bill declaring Mrs. Rickey to be the owner of the land and the proceedings in the county judge's court under which the sale of the land was made to Mrs. Fletcher to be null and void. From that decree Mrs. Fletcher appealed.
I concur in the conclusion reached by Messrs. Justices WHITFIELD, BUFORD and TERRELL that the decree should be affirmed. I think, however, that the language of this Court in the case of Sisson v. Warren, 106 Fla. 163, 142 So.2d Rep. 885, should be explained, if not modified, in so far as it may be construed as declaring that Section 5610, Compiled General Laws, 1927, is authority for charging the estate of a decedent for expenses chargeable to his estate as *Page 568 distinguished from debts incurred by him for which the property constituting his estate may be sold to pay.
I do not agree with the dissenting opinion of Mr. Chief Justice DAVIS that the decision in the Sisson case,supra, makes the distinction between a debt or charge against the decedent and one against a decedent's estate to the extent that in the case of a married woman who dies seized of lands as her separate property expenses for attorneys' fees and funeral expenses become charges against her estate for the payment of which the lands of which she died seized may be sold. Mr. Justice TERRELL said, speaking for the Court, that Sections 5610 and 5655, C. G. L., 1927, "designate the priorities and the order of payment of the debts of persons deceased by their executors or administrators." Although attorney's fees were allowed in that case as a charge against the estate as distinguished from a debt of the decedent, it evidently was not intended to be under authority of Section 5610, supra.
I agree that the authority to subject the real estate of a decedent to the payment of his debts is dependent on statute, but expenses of administration of an estate and funeral expenses are not debts of the decedent, but they are expenses of the administrator for which in the settlement of his accounts with the court he will be allowed a reasonable sum to be judged of by the station in life of the deceased and the value of his estate. They are in a class with attorneys' fees incurred by the administrator in administering the estate. The rule is that it is the duty of the surviving spouse to bury the deceased. See Gostkowski v. Roman Catholic Church of the Sacred Hearts of Jesus and Mary, et al. 262 N.Y. 320. Therefore, the debt for the funeral expenses of Mrs. Snyder was primarily a debt of the surviving husband. *Page 569
BUFORD, J., concurs.