I am unable to agree with the majority opinion and therefore respectfully dissent.
The proceedings that are involved in this appeal are in the nature of a law action, inasmuch as proceedings in probate to establish claims are at law. McIntosh v. Brown, 159 Iowa 41, 43, 139 N.W. 926. This court's consideration of this appeal should require us to consider it as we would such an action.
The record discloses that there were no pleadings other than the claimant appellant's application for citation of the administrator to show cause why its claim should not be paid, the final report of administrator, and the order approving the report. As far as the record discloses, there was no evidence presented in connection with the court's consideration of the claim. It is true that the trial court might properly take judicial notice of the probate records of the estate. However, I do not believe there is sufficient in those records to advise the court as to the decedent's station in life and his general circumstances and social conditions.
It is my conclusion that, inasmuch as this matter was before the probate court as a law action on the allowance of a claim for funeral expenses, a defense to the claim on the ground that the charges were unreasonable, considering the circumstances and social condition of the decedent, including his station in life and the value of his estate, would be a special defense which would have to be pleaded and proved.
By virtue of section 11961, 1939 Code of Iowa, a claim would be at issue unless the administrator or any other interested party desired to plead a special defense. In re Estate of Tiernan,232 Iowa 139, 142, 4 N.W.2d 869, 871.
This would be true in connection with a law action wherein consideration is given to objections to a final report growing *Page 959 out of the payment of a funeral claim which is considered excessive and unreasonable. I see no reason why such a holding would not apply in the matter which is submitted to the court for direction in an administrative proceeding and which, under the record, is in the nature of a law action. The stipulation and the final report which is therein referred to do not disclose that there was any special defensive pleading filed by the administrator to the effect that the appellant's claim was excessive and the charges unreasonable, as the appellee now contends in this court. If the administrator desired to make such a contention in the trial court that was his privilege but it should be necessary for him to do so by appropriate pleading and proof.
The reasonableness of the value of funeral services rendered should be upon the claimant and with that portion of the majority opinion I can concur. In the present case, the question as to the reasonableness of the value of the funeral services rendered is not involved inasmuch as it has been stipulated that the value of the funeral expenses was admitted. However, there remains the further question as to the claimed unreasonableness of the services, keeping in mind all the factors that can and should be given consideration. It is my conclusion that where such a contention is made it is incumbent upon the administrator or any other objector to plead this fact and support it with proper proof. The administrator did not do this, inasmuch as he filed no pleading in the trial court questioning the allowance because of the excessiveness of the expenditures by reason of the decedent's station in life, and presented no evidence.
As previously stated, it is my conclusion that it is incumbent upon the claimant undertaker to prove the value of his services, but I cannot agree with the majority opinion that the burden is also on the claimant in this case to plead and prove the reasonableness of the services under all the circumstances that might be presented. I think this is a special defense and that the administrator should have the burden of proving the unreasonableness of a claim, considering the decedent's station in life, for the reasons heretofore stated. I would reverse the trial court and remand the case for proceedings in keeping with this dissent.
SMITH, C.J., and MILLER and HALE, JJ., join in this dissent. *Page 960