The opinion of the court was delivered by
Hatcher, C.:This appeal steins from a controversy over the right of the State Department of Social Welfare of Kansas to recover under the provisions of K. S. A. 39-719a from the estate of the survivor of a married couple for assistance furnished the previously deceased spouse.
The facts which give rise to the legal issue are not in dispute.
A. Herman Schwarz, a resident of Johnson County, Kansas, died August 12, 1960. At the time of his death he had received old age assistance in the amount of $4,865.52. No effort was made to have his estate probated. He left no property. The home in the city of Olathe, ICansas was held in joint tenancy with his wife.
The widow, Matilda Schwarz, continued to live in the family home until her death April 19, 1964. She left a will making her son, Harry Schwarz, the executor and sole beneficiary. The will was admitted to probate and letters testamentary issued on May 25, 1964. An inventory was returned by the executor showing property *268consisting of the home which was appraised at $12,000.00 and miscellaneous household goods valued at $100.00.
On July 25, 1964, the State Department of Social Welfare filed its petition for allowance of demand. It claimed a right to have allowed as a demand of the fourth class pursuant to K. S. A. 39-719a tire sum of $12,524.22 for assistance furnished to Matilda and her husband, A. Herman Schwarz. The sum of $7,658.70 was for assistance furnished Matilda during her lifetime, about which there is no dispute, and $4,865.52 was for assistance furnished A. Herman Schwarz to the date of his death.
Defenses and objections were filed July 27, 1964, by Harry Schwarz asking the court to disallow the $4,865.52 for assistance furnished A. Herman Schwarz for the reason that no administration was had of his estate and the time for presentation of the claim was barred by the provisions of K. S. A. 59-2239.
On July 27, 1964, Harry Schwarz filed his petition for allowance of a demand of the first class for reimbursement for burial expense of Matilda in the sum of $971.06 paid by him.
On September 29, 1964, the probate court denied the claim of the State Department of Social Welfare for assistance furnished A. Herman Schwarz, and allowed the claim of Harry Schwarz for burial expenses of $971.06 as a demand of the first class. The State Department of Social Welfare appealed to the district court.
On May 19, 1965, the district court entered its order allowing the $4,865.52 for assistance furnished A. Herman Schwarz as a demand of the fourth class; it allowed $400.00 of the claim of Harry Schwarz for burial expenses as a demand of the first class, and disallowed the balance entirely.
Harry Schwarz has appealed from the order of the district court.
We will first consider appellant’s contention that the trial court erred in allowing the claim of the appellee for assistance furnished to A. Herman Schwarz in the sum of $4,865.52 for the reason the claim was barred by the nonclaim statute, K. S. A. 59-2239, which provides that an executor or administrator must be appointed within one year after the death of the decedent and a claim presented within nine months after the date of the first publication notice to creditors. Appellant’s contention is based on the fact that no attempt was made to administer the estate of A. Herman Schwarz.
We cannot agree with appellant’s contention. The claim for payments made for old age assistance to a previously deceased *269spouse is a demand against the estate of the surviving spouse and does not arise until the survivor’s death. The nonclaim statute has no application until such time.
We must look to the statute from which the claim arises for a determination of the issue. The statute fixing the claim, K. S. A. 39-719a, provides:
“[1] On the death of any recipient of assistance, the total amount of assistance paid or [2] on the death of the survivor of a married couple, either or both of whom received such assistance, the total amount paid assistance to either or both, [31 shall be allowed as a claim against the estate of such person or persons as a fourth class claim. [4] No such claim shall be enforced against the real estate of the recipient or tihe real estate of a person who has been a recipient while it is occupied by the recipient’s surviving spouse or by any dependent child of such recipient or any dependent child of such surviving spouse.”
We have added numbers to the statute indicating four separate provisions.
We have no difficulty in determining the intent of the legislature from the language used in the statute. Under the first and third clause, on the death of any recipient of assistance, the total amount of assistance paid shall be allowed as a claim against the estate of the recipient subject to the provisions of the fourth clause, last sentence. However, in the case under consideration, since A. Herman Schwarz, the spouse first deceased, left no estate, there could be no “claim against the estate of such person.”
We must, therefore, look to the second clause if there is to be a recoverable claim. On the death of Matilda Schwarz, the survivor, assistance had been paid to both her and her husband, A. Herman. Therefore, under clause three the total amount paid both “shall be allowed as a claim against the estate of such person” — Matilda, the survivor.
Since the property in the estate of Matilda was not occupied by any of the dependents mentioned in clause four, the property immediately became subject to the claim of the State Department of Social Welfare. The claim against the estate of Matilda was filed well within the time allowed by the nonclaim statute.
The appellant also contends that the trial court erred in disallowing the demand of Harry Schwarz for reimbursement for Matilda’s burial expenses in the sum of $971.06 insofar as it was in excess of $400.00. He suggests that if the court was to allow only $400.00 of the amount as a first class demand it should have *270allowed the balance of $571.06 as a demand of the fourth class.
We are inclined to agree.
The appellee contended before the district court that the burial expenses should be limited to the amount permitted by K. S. A. 39-713 (Z) for a welfare recipient’s funeral. The trial court made no specific finding that the actual amound paid for the burial was unreasonable but appears to have based its decision largely on the appellee’s suggestion.
The statute mentioned limits the amount the county welfare department may pay for a funeral but it is not binding where private individuals paid for the burial. It does not impose a limitation upon the power of the probate court to allow funeral expenses in estates of deceased persons and to assign them to a particular class of demands. The amount to be allowed and the assignment to a particular class or classes of demands is governed by K. S. A. 59-1301 which provides insofar as material here:
“If the applicable assets of an estate are insufficient to pay in full all demands allowed against it, payment shall be made in the following classified order:
“First class, the expenses of an appropriate funeral in such amount as was reasonably necessary, having due regard to the assets of the estate available for the payment of demands and to the rights of other creditors. Any part of the funeral expenses allowed as a demand against the estate in excess of the sum ascertained as above shall be paid as other demands of the fourth class.” (Emphasis supplied.)
We find nothing in the record to indicate that the funeral expense of $971.06 was so unreasonable that the amount in excess of $400.00 should not have been allowed and paid as other demands of the fourth class as provided by the statute for classification and payment of demands.
The judgment is affirmed as to the allowance of the claim against the estate of Matilda Schwarz for assistance received by A. Herman Schwarz, but is reversed insofar as it disallowed the funeral expenses in excess of $400.00 as a fourth class claim.
APPROVED BY THE COURT.