ON PETITION FOR REHEARING A petition for a rehearing has been filed herein in which it is claimed that we overlooked to decide some of the points raised on the original hearing. It is true that we did not discuss every point raised, but they were not overlooked. *Page 178
In referring to the statement in the original opinion that even though the allegations of the petition were insufficient, the defect was cured by the allegations in the answer, counsel claim we overlooked the point urged in the original argument that this could not be done in the case at bar, for the reason that the answer was not filed until after the expiration of the three months' limitation for commencing an action upon a rejected claim, fixed by Sec. 6893 W.C.S. 1920. The theory is that to treat an allegation in the answer as supplying a defect in the petition would be the equivalent of the allowance of an amendment having the same effect, and that no such amendment could have been filed to supply the defect. Counsel cited no authority for his position in the original brief, and the only authority now cited is from 1 Ross Probate Law, Secs. 339 and 348, to the effect that a claim must be presented within the time fixed by statute, and that an administrator cannot waive the statutory requirements. We cannot see the application of these authorities. There is no claim that the claim was not filed in due time. If it is thought that the claim that was filed should have contained the statement that it was just and reasonable "in view of the condition of the estate," then we cannot concur in such opinion.
Technical accuracy and certainty of description, which is essential in a pleading, is not necessary in filing such a claim. If it is clear and unambiguous so as to distinguish it with reasonable certainty from all other similar claims, and gives such information concerning the nature and amount of the demand as to enable the representative to act intelligently in allowing or rejecting it, it should generally be held to be sufficient. 24 C.J. 348, 349. We think the claim filed in this case was sufficiently definite. Indeed, it is not our understanding of the record that any contention was made that the claim presented to the administratrix was not correct in form. *Page 179
In the original opinion in this case the question seriously raised and argued by plaintiff in error that the petition failed to state a cause of action, was considered, and it was held that "assuming that the California case cited by plaintiff in error, announcing the rule that there must be an allegation in the petition that the funeral charges were reasonable in view of the circumstances of the estate, is good law" any defect of that kind was cured by the subsequent pleadings of the parties. Nothing has been said in the argument before us on petition for rehearing to change our views on this point. Some things said in the course of that argument, however, have led us to believe that it would be as well to say here that we do not think the rule of the "California case" (Golden State, etc. Co. v. Taylor, 168 Cal. 94, 141 P. 922) above mentioned, applicable to our practice in this State. Sec. 6738, Wyo. C.S. 1920, as amended by Chapter 144 of the Session Laws of 1921, provides, inter alia, "except as otherwise provided in the probate code, the provisions of the code of civil procedure are applicable to and constitute the rules of practice in the proceedings mentioned therein." There is nothing in the probate code which indicates what shall constitute the statement of a cause of action on an account presented as a claim against an estate when that account is sued. But Sec. 5676 Wyo. C.S. 1920, which is part of the code of civil procedure, provides generally what shall be "sufficient" in framing a cause of action on an account.
We have, then, a section of law which obviously is applicable to the petition in the case at bar. Tested by its provisions, the pleading attacked is amply "sufficient." There was evidence received which in our opinion is sufficient to make a prima facie case under this pleading. We are not unmindful of the rule so often referred to by the authorities that recovery can be had only to the extent the expenditures for funeral expenses were reasonable in *Page 180 view of the size of the estate and the position in life of the decedent, but we think this should be matter of defense. Counsel for defendant evidently thought such procedure proper, for defendant's answer, as pointed out in the original opinion herein, incorporates allegations to that end. That opinion also refers to the fact that in the case of Foley v. Broeksmit, 93 N.W. (Ia.) 344, the point was likewise raised by answer. This would seem logical. Such facts are more accurately within the knowledge of the estate's representative than one situated as was the plaintiff here. It would be harsh to require that before he carries out a requisition given by the immediate family of deceased for funeral expense — a matter that cannot be delayed — an undertaker must first conduct an investigation and determine whether the requisition is proper in view of the size of the estate and the position in life of the decedent.
In this connection we are inclined to approve the rule well expressed in the case of In re. Rooney, 3 Redf. (N.Y. Surr.) 15, where it was said:
"Still I am of the opinion that an undertaker called to furnish the necessary funeral outfit, is only chargeable with a knowledge of the apparent condition of the decedent's property, and of his station in life, and he cannot be expected to enquire as to the extent of the encumbrances upon the decedent's property, or the amount of the debts which he may owe. He should only be held to a rigid accountability in respect to what must be apparent to a reasonably prudent observation."
In the case now before us defendant made such proof as she had in support of the allegations of her answer on the point now being discussed. A jury has passed upon this evidence. Nothing has been drawn to our attention which induces us to believe that the conclusion reached by it was so erroneous as to require a reversal of the cause. *Page 181 Another trial would serve no useful purpose, and, accordingly, in our judgment the petition for a rehearing should be denied.
Rehearing denied.
BLUME, J., and BROWN, D.J., concur.