60 So. 1000 | Ala. Ct. App. | 1912
There is but one question presented by this record, and that is: Is the claim of a third person for the funeral expenses of a decedent such a claim against his estate, within the contemplation of our statutes, as that it has to be verified and presented as a claim against his estate within 12 months after grant of letters of administration thereon, in order to prevent its payment being barred or prohibited by the statute of nonclaim (Code 1907, §§ 2590, 2593)? We are of opinion that it is not. S'aid section 2590 provides: “All claims against the estate of a decedent, than the claims referred to in the preceding sec-
These conclusions are expressly supported by the following authorities in other states, and we find none to the contrary; Dampier v. St. Paul Trust Co., 46 Minn. 526, 49 N. W. 286; Sawyer v. Hebard, 56 Vt. 375, 3 Atl. 529. See Cyc. vol. 18, p. 455. They are likewise the necessary result of the reasoning employed by our own Supreme Court in the case of Gayle’s Adm’r v. Johnson. 72 Ala. 254, 47 Am. Rep. 405, where the court, though dealing with a different question from that here, speaking through Brickell, C. J., use the following language: “The remaining claim is for money paid by the appellee for a burial casket for the intestate. Funeral expenses, says Lord Coke, according to the degree and quality of the deceased, at common law were allowed of the goods of the deceased, before any debt or duty whatever, and his burial was the first duty of the executor. If there was no executor, or he was unknown, or not at hand, a friend or a stranger may attend to the duty, and bury the deceased in a manner suitable to the estate he leaves behind him; and the necessary expense must be repaid him by the personal representative, having assets though he neither ordered nor had knowledge of the expenditure. The burial here [in our state] of necessity devolves as a duty upon friends or relatives; for, until 15 days after death, there can be no administration or grant of letters testamentary. Priority of payment of funeral expenses, as at common law, the statute secures. The amount of such expenses, when paid by a friend or relative, is regarded aS money paid on request of a personal representative; and the law raises a promise to repay it so far as he has assets.”
The claim here is neither a “claim or demand existing against the testator or intestate at the time of his ■death,” as is undoubtedly clear, nbr one “subsequently accruing” against such testator or intestate; for, as we have endeavored to point out, it is merely a claim against his personal representative. The words “subsequently accruing” as used in the opinion from which they were quoted have reference to contracts made by decedent during his lifetime, rights under which did not accrue in favor of the claimant until after decedent’s death. Such claims by the express provisions of the Code (section 2590) do not have to be presented within 12 months after grant of letters, but within 12 months after accrual of rights under them. This is made clear from the following language of the same judge in McDowell v. Jones, 58 Ala. 32, to-wit: “Or there may be claims not within its operation [that is, the statute requiring presentation within 12 months after grant of letters of administration], because they do not accrue, until the doing of some act by another, after the grant of administration. When the act is done, and the •claim has accrued, the bar of the statute is computed, not from the grant of administration, but from the accrual of the claim. The familiar illustration is the pay
If Ave Avere to construe the Avords “subsequently accruing” as found in the quotation hereinbefore from Jones v. Drewry, supra, as sweepingly as appellee insists, they would coyer all obligations created by the personal representative after the decedent’s death, during the course of administration, such as fees to counsel for representing him in the administration of such estate, etc. Funeral expenses belong to the same class of obligations, for they are against the personal representative, and not the decedent — the former upon express contract, the latter upon an implied one. We do not regard the case of Nicholas v. Bands, 136 Ala. 268, 33 South. 815, cited by appellee, as an authority; for the question here considered was neither passed on in that case nor necessarily involved in it.
The judgment of the lower court is reversed, and the cause remanded.
Reversed and remanded.