ON MOTION TO MODIFY MANDATE. Appellant, Charlie M. Phillips, seeks to have the court modify its mandate herein, made on May 22, 1924, in denying appellees' petition for a rehearing, wherein the trial court was directed to so restate its conclusions of law on the facts found as to form the basis of an order for the sale of said appellant's undivided three-fourths of the real estate in question for the purpose shown. Through such a modification, he seeks to have the three-fourths interest in said real estate, cast on him as the surviving husband *Page 77 of the decedent, by reason of the provisions of § 3027 Burns 1914, § 2489 R.S. 1881, protected from a sale for the purpose shown, unless the remaining one-fourth thereof, cast on appellees as the surviving parents of the decedent, by reason of the provision of said last named section, fails to sell for a sufficient amount to pay the claims involved, and, in the event it fails to so sell, that the one-third interest therein cast upon him as such surviving husband, by reason of the provisions of § 3016 Burns 1914, Acts 1891 p. 71, be so protected.
If the funeral expenses of an intestate, where no contractual relation with the decedent is shown, constituted an indebtedness of such intestate, there would be merit in appellant's 8-10. contention. But such is not the case. They are merely liabilities of the estate of a decedent, raised up and imposed by law on principles of public policy. Hildebrand v.Kinney (1909), 172 Ind. 447. Hence the statutes which protect the interest of a surviving husband from sale for the payment of the general debts of a deceased wife have no application where the funeral expenses of the decedent are involved. Such expenses become a charge upon all of the real estate of the decedent, in the same manner and to the same extent that her general debts become a charge upon two-thirds thereof where her personal estate proves insufficient to pay the same. In the instant case, the administrator of the deceased wife is seeking to enforce such a charge against her real estate, by a petition which has been held to be in the nature of a bill to foreclose a lien. Stone v.Elliott (1914), 182 Ind. 454. Therefore, under the facts found, showing a personal liability on the part of the surviving husband, as we have heretofore determined, it became a question for equitable determination *Page 78 whether the whole of the real estate, or only a certain portion thereof, or interest therein, should be ordered sold, and if not the whole, then what portions or interests. We considered that question in denying appellees' petition for a rehearing, and concluded that, inasmuch as the facts found show that the lien in question attaches to the whole of the real estate involved, and that the surviving husband was ultimately liable for the only claim requiring a sale thereof, as we had theretofore determined, that equity required that an order be made to sell the whole of his interest in such real estate. The fact that appellant is entitled to a householder's exemption from execution, as is made to appear by affidavit, is of no significance, since any such right would not be superior to the lien for the funeral expenses of the decedent.
For the reasons stated, we adhere to our former opinion. Petition to modify mandate denied.