1 Reported in 4 N.W.2d 633. Appeal from a judgment in favor of defendant. The record consists of the pleadings in the district court, framed on appeal from the probate court, the findings of fact and conclusions of law, and the judgment.
As appears from the pleadings and findings, the facts are in substance these: Appellant lived in Maywood, Illinois, in 1939. Lucile, the daughter of respondent, was killed in a collision of the automobile in which she was riding with another car, in the city of Chicago, on January 21, 1939, due to the negligence of the owner and driver of the car in which she was riding. The owner, the brother of appellant, carried liability insurance. On February 28, 1939, respondent was appointed administratrix of the daughter's estate by the probate court of Hennepin county, and on September 21, 1939, collected $1,750 from the insurance carrier of the owner for Lucile's death by his wrongful act. Respondent filed her final account as administratrix with petition for distribution therein, reciting in the petition that "all expenses of administration, funeral expenses and taxes have been paid." The account was allowed October 23, 1939, and decree of distribution made.
Paragraph 4 of appellant's complaint sets forth the origin of his claim:
"4. That said respondent immediately went to Chicago after being apprised of her daughter's death and upon arrival in Chicago contacted appellant, and informed him that she did not have sufficient funds with her to make the necessary arrangements for preparing her daughter's body and having it transported to Minneapolis. That thereafter appellant and said respondent selected a casket and arranged for the preparation and transportation of said body and at the special instance and request of said respondent and with her full knowledge and consent appellant paid to the Paul W. Senne Funeral Home, Inc., the sum of $495.53 for the casket and preparation of the body and advanced to respondent *Page 3 cash in the sum of $45.00, and incurred the sum of $60.35 in accompanying said body to Minneapolis."
The answer denied this paragraph, but the court found:
"That on the 21st and 22nd days of January, 1939, Mabelle A. Kirschstein, mother of the said deceased, immediately went to Chicago to attend the affairs of her daughter and to look after the burial of said daughter following her death and while the said Mabelle A. Kirschstein was at that time at Chicago she had certain conversations with the appellant, E.D. Coleman, pursuant to which the appellant, E.D. Coleman, advanced to Mabelle A. Kirschstein, mother of the deceased, various sums of money totalling $600.88 which money was used for the purpose of providing a casket and other expense incident to the preparation of the body for burial and its shipment to Minneapolis, Minnesota, and burial."
Then the court found that said money was so advanced by appellant prior to respondent's appointment as administratrix of her daughter's estate, and that of the $600.88, $495.53 was for the casket and preparation of the body for burial and $60.35 for expense of accompanying the body to Minneapolis for burial.
The memorandum attached to the decision, but not made a part thereof, indicates the ground for the conclusions of law denying appellant any relief. It reads:
"The undisputed testimony in this case shows that at the time when the money that is the subject matter of this controversy was advanced to Mrs. Kirschstein she had not been appointed administratrix of the estate of her daughter, and there is no evidence to show that either of the parties had any reason to suppose that she would ever be appointed such administratrix. The only conclusion that can be drawn from the evidence is that the money was advanced to her as a personal loan. If this be correct, the plaintiff [appellant] has no valid claim for reimbursement against the estate of the deceased daughter." *Page 4
In this conclusion we think the court erred.
Mason St. 1927, § 9657, provides that the damages for wrongful death "shall be for the exclusive benefit of the surviving spouse and next of kin, to be distributed to them in the same proportion as personal property of persons dying intestate; but funeral expenses and any demand for the support of the decedent, duly allowed by the probate court, shall first be deducted and paid." This imposes upon the court the duty to determine the reasonable funeral expenses to be first deducted out of the recovery of the $1,750 collected by respondent for the wrongful death of Lucile. It is clear from the admissions of the pleadings referred to and the findings of fact that the funeral expenses had not been paid.
By the common law, funeral expenses are a charge against the representative, and, under our statute, "they are also a direct charge against the estate and may be presented and allowed as such. The creditor has alternative remedies." Dunnell, Probate Law, § 906; Dampier v. St. Paul Trust Co. 46 Minn. 526,49 N.W. 286; Prescott v. Swanson, 197 Minn. 325, 267 N.W. 251. On the admissions in the pleadings and findings of fact quoted and summarized, appellant had a good claim against the money in this estate. He was not given the opportunity to file it in the probate court, though he made a timely request therefor. There is no contention in the pleadings or findings that the amounts of $495.53 for the casket and preparation of the body and $60.35 for the transportation of the body to the place of burial were not reasonable. The $45 respondent received for her personal use appellant may not recover herein.
The judgment is reversed with direction to enter judgment for appellant for $555.88 with interest from January 21, 1939, and costs.