I concur in the opinion of Morgan, J., except as hereinafter pointed out:
In Mr. Ball's account as executor the following appears:
"That on the 13th day of March, 1936, the testator entered into a 'Lease and Option to Purchase' and 'Contract for Purchase' with George S. Smith for the East Half (E 1/2) of Lot Three (3) East of Canal, Section One (1), Township 1 North, Range 38, E. B. M., Bonneville County, Idaho for an annual rental of $500.00; that at the time said lease was executed, to-wit, March 13, 1936, the said George S. Smith made an advance payment for 1936 rent of $300.00; that on said 13th day of March, 1936, your Executor, acting as attorney in fact for the deceased paid to the First Security Bank of Idaho Falls, Idaho, the sum of $300.00 as part payment on a $400.00 note, which the deceased owed said bank; that thereafter, and as above set forth, your Executor collected from said George S. Smith on June 23, 1936, $150.00, *Page 93 and on November 16, 1936, $50.00; that these two items together with the $300.00 above referred to, fully paid the rent on said premises leased by said George S. Smith for the year 1936."
It is evident from a careful reading of the above recital that it was the intention and sole purpose of Mr. Ball to account, as executor, for the $150 and the $50 that came into his hands as such executor, as money belonging to the White estate; and, in order to explain the transaction, he called attention to the fact that Smith was to pay an annual rental of $500 and that the same was paid, $300 to him, Ball, while acting under power of attorney, and $200 that came into his hands while acting as executor. The $300 that came to Mr. Ball's hands was not subject to investigation further than to show what portion remained unexpended and came into his hands as executor. To hold otherwise, he would be required to account for all moneys coming into his hands and expended while acting under power of attorney. If any one item may be inquired into, all moneys received by him in such capacity and expended would be subject to investigation.
Timely objection was made to the admissibility of any testimony touching the $100 item, for the reason that if received by Mr. Ball it was not received by him as executor but while he was acting for Mr. White under power of attorney. The power of attorney was executed on the 9th day of June, 1935, and among other things, contains the following recital:
"KNOW ALL MEN BY THESE PRESENTS, That G. A. White of Idaho Falls, County of Bonneville, State of Idaho, has made, constituted and appointed and by these presents does make, constitute and appoint Leonard G. Ball of Idaho Falls, Idaho, County of Bonneville, State of Idaho, as true and lawful attorney for George A. White, and in his name place and stead to rent, lease, sell, to let, execute deeds, collect rents, issue checks, authority to transact any business pertaining to my property. giving and granting unto Leonard G. Ball, said attorney, full power and authority to do and perform all and every act and thing whatsoever required and necessary to be done in and about the premises as *Page 94 fully, and to all intents and purposes as George A. White might or could do if personally present, hereby ratifying and confirming all that Leonard G. Ball said attorney shall lawfully do or cause to be done by virtue hereof."
Mr. Ball acted under the above power of attorney from the 9th day of June, 1935, until the death of White on the 27th day of March, 1936. Mr. White's estate was inventoried at $14,566.64, consisting of farms, personal property, outstanding notes and mortgages, etc. No doubt Mr. Ball made many deposits, drew many checks against Mr. White's account and paid many bills during the time that he was acting for Mr. White under power of attorney. In other words, Mr. Ball, while acting under power of attorney, stood in Mr. White's shoes, with authority to do anything and everything that Mr. White himself may or could have done, without any restrictions or limitations. Being possessed of such broad authority, he had a right, if he so desired, to withdraw the $100 in question and to expend it in the interest of Mr. White or Mr. White's estate, just the same as Mr. White himself may have done, and he was no more accountable to anyone than Mr. White would have been.
The sole and only purpose of the statement above set out was to inform the probate judge that the balance of the $500 had been collected subsequent to Mr. White's death and was properly accounted for. The mere fact that, in making his report, Mr. Ball reported that $300 received by him prior to Mr. White's death had been applied on a note of $400, is immaterial, since it clearly appears that the $400 plus interest was paid by Mr. Ball and $200 of the $300 collected was likewise accounted for. Even conceding that the court did not err in admission of testimony with reference to the $100, the court found, and there is sufficient competent evidence to sustain the finding:
"That as to the claim of $100.00 which came into the possession of the appellant during the life time of the decedent, was used by appellant for the use and benefit of the deceased during his life time; that said appellant is not chargeable with said $100.00."
In reference to this $100, Mr. Ball testified: *Page 95
". . . . Q. Do you remember of getting the hundred dollars that's listed on this deposit slip?
"A. I have tried my best to remember that transaction, and all that I can remember about it is taking the check to the bank and paying a certain note, and I don't remember of getting the money. But, the record shows I got it, and I can't deny it.
"Q. Well, as far as you can recall, then, you don't know whether you got it, or not, is that what you are trying to say?
"A. No; I am just trying to say that I don't remember.
"Q. Don't remember of ever getting the hundred dollars?
"A. I don't remember the transaction.
"Q. Well, did you — have you ever used any of Mr. White's money for your personal affairs?
"A. No sir."
And in this connection, Mr. Ball testified further:
"I know that whatever I did with it, I spent it for — either for Mr. White, or for his interests, because I never used a dollar of that money for myself, personally."
There is no competent evidence in the record that disputes this testimony of Mr. Ball. There is not a single suspicious act or circumstance reflecting upon Mr. Ball's honesty or integrity, while acting as executor. The court found that Mr. Ball had truly, faithfully and fairly administered said estate and that he had given a true and correct account and report of all moneys and properties that came into his hands during his administration, up to June, 1937, the date he filed his report. The trial court did not err in refusing to award judgment against Mr. Ball for the $100, for the reason that the evidence admitted with relation thereto was incompetent and inadmissible, being wholly immaterial to the settlement of Mr. Ball's account as executor; and for the further reason that there is sufficient evidence to support the court's finding that Mr. Ball did not receive or use the $100 for his own personal use or benefit.
Coming now to the claim of Della Eller et al.: On May 4, 1936, subsequent to Mr. White's death, Della Eller addressed a letter to Mr. Ball, in which she informed the latter in substance: That Mr. White left owing her $20 and *Page 96 owing one Johnston, $3, and one Rash, $2. When Mr. Ball took Mr. White to Charlotte, North Carolina, Mr. White being ill, he left him at the home of Della Eller, who cared for Mr. White during his last illness and up until his death. Della Eller was not related to Mr. White but he preferred to stay with her rather than with relatives. While it is conceded that the claim is not verified under the statute, the trial court found specifically that Della Eller's claim was for nursing and caring for deceased during his last illness. The evidence shows that the claim was reasonable and justly due and owing and appellant should be allowed credit therefor and the contestant's objections thereto are groundless.
The will contains the following provision:
"6. I direct that my executor first, to pay all expenses incurred by sickness and burial out of funds that are available, and all expenses of settling the estate."
Section 15-801, I. C. A., provides:
"No person has any power as an executor until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate."
Section 15-1127, provides as follows:
"The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay other debts or any legacy until, as prescribed in this chapter, the payment has been ordered by the court."
"Funeral expenses are not properly a 'claim' against the estate in the sense of being an obligation contracted or incurred by the decedent. Neither are they expenses of administration. They are rather a charge against the estate which the law authorizes because of the dictates of society. The same is essentially true of expenses of the last sickness." (Bancroft, Prob. Prac., p. 1391, sec. 780.)
Mr. Ball as executor carried out literally the instructions contained in the will when he paid the $20 to Della Eller and $3 to Johnston and $2 to Rash. (Sec. 15-1114, I. C. A.) *Page 97 It would be unjust and inequitable to require Mr. Ball to repay this money to the estate for the benefit of contestant. The judgment of the trial court is affirmed.
Ailshie, J., concurs.