57 Mich. 357 | Mich. | 1885
Samuel B. Scott died on the 7th day of April, 1878, leaving a last will and testament, in which he directed (1) the payment of his debts; and (2) he devised to his wife, Mary A. Scott, all the residue of his estate, and appointed her sole executrix of his will. The will was admitted to probate, September 3, 1878. His widow qualified as executrix, but not as residuary legatee. September 3,1878; commissioners were duly appointed to hear, examine and adjust all claims against said estate. They duly qualified; gave the notices required by law of the time and place of their meeting, and filed their report, December 8, 1879. They allowed a claim in the words and figures following, viz. : “ Mrs. Mary A. Scott, preferred claim for expenses of last sickness and funeral, $1604.89.” The whole amount of claims allowed was $12,529.44. No appeal was taken from said report, and no part of said claim allowed Mrs. Mary A. Scott was ever paid. Said Mary A. Scott was married August 1, 1881, to one Robert McElrath. She died August 6, 1882, and the appellant is the executor of her last will and testament.
July 5, 1882, the appellee was duly appointed administrator de bonis non, with the will annexed, of the estate of Samuel B. Scott, deceased. His final account as such administrator was allowed February 4, 18S4, and the amount due from him to said estate is $6006.95. February 9, 1884, the appellant petitioned the probate court for Wayne county that said preferred claim be paid in full, and that the other claims be paid pro rata. March 12, 1884, the probate court made an order that the appellee “ pay over the residue of said estate to the creditors of said deceased in proportion to their respective claims excepting from such pro rata payment the claim of Mary A. Scott, allowed as a preferred claim by the commissioners on claims against said estate.” From this order appellant appealed to the circuit court for the county of Wayne. February 2, 1885, said circuit court rendered judgment that said order of the probate court be affirmed with costs, and that judgment for costs be rendered against the appellant and the sureties on the appeal-bond. Appel
The dispute in this case is confined to narrow limits. The judge of probate ignored the claim allowed to Mrs. Mary A. Scott, in his order for final distribution, because it appeared to be for expenses of the last sickness, and also for funeral •expenses, united in one item, witli nothing to distinguish how much thereof was for expenses of last sickness, and how much for funeral expenses. For this reason it is claimed that the •action of the commissioners on claims was a nullity, and no part of the item can be recognized as a legal claim against the estate. It is not contended that in general the expenses •of the funeral, as well as those of the last sickness, are not legal claims against the estate, but that it is only the latter •that the commissioners are authorized by the statute to pass ■•upon; that the funeral expenses are a charge upon the assets in the hands of the executor or administrator, and must be passed upon and allowed by the probate court.
The objection made to the payment of the claim we regard .as technical, and based upon a construction of the statute which is too rigid, and contrary to that commonly accepted m practice in the probate eonrts of this State. The statute •designates both the charges for the last sickness and for funeral expenses as charges against the estate, and distinguishes them from expenses of administration. They are both made preferred claims, and rank next to the expenses of administration. "We regard the funeral expenses as proper to be passed upon and allowed by commissioners on claims as being a charge against the estate. In this case they were so presented and allowed, and no appeal having been taken from such allowance the person now representing such claim as entitled to be paid according to the priority provided by
The order of the circuit court for the county of Wayne is reversed, and it must be certified to the circuit and probate courts for the county of Wayne that the order of distribution and payment of claims must be so modified as to require the administrator de bonis non, with the will annexed, to pay the claim allowed by the commissioners to Mrs. Scott for expenses of last sickness and funeral expenses as a preferred claim, in accordance with the statute in such case made and provided. The appellant will recover his costs of both courts.
