173 Ind. 659 | Ind. | 1910
In the lower court appellant Snyder, the administrator of the estate of Peter J. Hengen, deceased, filed his final report, showing therein that he had been ordered by the court to settle said estate as insolvent. The report disclosed that of the moneys or funds arising out of the sale of real estate made and held by the decedent at the time of his death — after applying the same, (1) to mortgage liens thereon and (2) to the payment of $300, the remainder due the widow of the deceased upon her statutory allowance of $500 — there still remained of said money, including the one-third interest of said widow, the sum of $2,525.15. This amount the administrator paid into court, for the reason that certain judgment creditors (appellees herein) were claiming that their judgments were entitled to priority, and that they should be preferred in payment over the expenses of administration, funeral expenses of the deceased and the
It appears that the commissioner, after hearing the evidence in respect to the matters involved, concluded, and so recommended to the court by his report, that the final report of the administrator should not be approved; that the judgments held by appellees, rendered by the Superior Court of Tippecanoe County against the decedent during his lifetime, were entitled to be first paid in full out of the money in the hands of the clerk, in preference to the payment of the expenses of administration, funeral expenses and expenses of the last sickness of the decedent, and that the administrator be directed to restate his report accordingly. Exceptions were filed to the master’s report, which were overruled by the court, and the latter rendered its judgment in accordance with the conclusions of the master commissioner. It appears from the record that the decedent left surviving him a widow and children, and that the total value of his estate was about $5,000, consisting of real estate situated in Tippecanoe county, Indiana, and $200 in personal property. Said real estate was encumbered by certain mortgage liens. The personal property — $200—was taken by the widow under her allowance of $500, and the remaining $300 was paid to her out of the proceeds arising from the sale of the real estate.
In the latter case, Elliott, J., said: “In strictness, neither a judgment nor an attachment is a lien upon land; both are simply charges against land existing by virtue of statute.” By the transfer of the judgment liens to the funds derived from such sale of the real estate in question, such liens in no manner became specific charges against these funds, but still remained only a general charge against the funds, subject to the rights of priority or preference, if any, under the law, in their application by the administrator. ■
Turning to the statutes which govern the settlement of a decedent’s estate, and we find that §2901 Burns 1908, §2378 R. S. 1881, declares as follows: “Unless otherwise provided in this act, the debts and liabilities of
Counsel for appellees insist that this section is modified by §§2957, 2958 Burns 1908, Acts 1883, p. 151, §32, §2435 R. S. 1881, and that when construed along with these sections it must be held that, where an estate is insolvent, judgment liens upon the lands of the decedent must be preferred in their payment over expenses of administration, funeral expenses and expenses of last sickness.
Section 2957, supra, provides: “If, upon the hearing of such account [that is, the account mentioned in the preceding section], it appear to the court that all the estate liable to be made assets shall have been converted into money, and there be no claims pending against it unallowed, the court shall order the money applied to the expenses of administration, and distribute it among the claimants whose claims have been allowed, in the order hereinbefore provided, pro rata, among the claimants of each class, subject to the provisions of the next section. ’ ’
Section 2958, supra, declares that “if any portion of the moneys shall have been derived from the sale of real estate, and the same shall have been sold subject to liens, the parties holding such liens shall not be entitled to share in such distribution. If such sale shall have been made to discharge liens on the real estate, the moneys derived from such sale shall be first applied to the payment of such liens in the order of their respective priorities, whether legal or equitable; and if any portion of the debts secured by such liens remain unsatisfied after the application of the purchase money, the residue shall be entitled to share in such distribution as general debts.”
It is evident that §2901, supra, contemplates that the estate
In the case just cited, in considering the question in respect to the statute of limitations upon claims or debts of a decedent, it was said: Claims for “funeral expenses and burial * * * are not debts of the decedent, hence not accounts against him or his estate, within the meaning of the statute of limitations. They can arise from no request or obligation of the decedent, express or implied, unless it might be under the provisions of a will. They are liabilities and charges against the estate, raised up and imposed by law, as distinguished from obligations arising by some act or promise of the decedent. They stand in the same category as the expenses of administration. * * * The law imposes the duty of burial of the dead, and it is not an obligation arising out of contract, any more than a judgment is a contract. * * * In Sullivan v. Horner [1886], 41 N. J. Eq. 299, 7 Atl. 411,
Upon examining other sections of our probate statute relating to decedents’ estates — of which §2901, supra, is a part— it will be seen that if the estate be discovered insolvent before the expiration of one year, no claim against it, except expenses of administration, of the last sickness and funeral of the decedent, shall be paid until the expiration of a year. Section 2786 Burns 1908, §2269 R. S. 1881, provides, that if the personal estate be insufficient to pay the widow’s statutory allowance of $500, the deficit shall be a lien upon the real estate of the decedent, liable for the payment of debts, and such lien is made superior to the liens of judgments rendered against the decedent.
Sections 2945, 2946 Burns 1908, Acts 1903, p. 145, §2, §2422 R. S. 1881, provide for vesting an estate, which does not exceed $500 in value, in the widow of the decedent. Section 2945, supra, declares that “if, at any time, any executor or administrator shall discover that the whole estate of the
Section 2946, supra, declares that “such widow shall not be liable for any of the decedent’s debts, except mortgages of* real estate, but she shall pay and may be sued for the reasonable funeral expenses of the deceased and expenses of his last sickness. ’ ’
While the widow of the decedent, under these provisions of the statute, tabes and holds the real estate, if any, which may be turned over to her, subject to the specific lien of. a mortgage, nevertheless she takes such realty exempt from the liens or charges of judgments rendered against the decedent during his life, but she takes it under the statute, burdened with the payment or liability of his funeral expenses and the expenses of his last sickness. Quakenbush v. Taylor (1882), 86 Ind. 270; Fleming v. Henderson (1890), 123 Ind. 234; Weir v. Sanders (1890), 124 Ind. 391; Dixon v. Aldrich (1891), 127 Ind. 296.
In Quakenbush v. Taylor, supra, this court said: “A judgment creditor has no right in the property of his judgment debtor, he only has the right to make his judgment effectual, subject to the exemption laws and other statutory provisions.”
In Dixon v. Aldrich, supra, the court held that the right of the widow to her statutory claim of $500 is not defeated by a levy made by the sheriff on the property of her deceased husband during his life.
The following authorities sustain the proposition that the expenses of administration, the funeral and last sickness of the decedent have priority in payment over judgment liens against his real estate. Hilderbrand v. Kinney, supra; Taylor v. Wright (1884), 93 Ind. 121; Sullivan v. Horner (1886), 41 N. J. Eq. 299, 7 Atl. 411; Patterson v. Patterson (1875), 59 N. Y. 574, 17 Am. Rep. 384; Schouler, Executors and Administrators (2d ed.), §§421, 423.
By the statute of New Jersey, preferred claims against the estate of a decedent were in the following order: Judgments rendered against the decedent in his lifetime, funeral expenses and expenses of last sickness. These claims, under the statute, were to be paid out of the personal and real estate of the decedent. In Sullivan v. Horner, supra, it appears that an insolvent decedent, domiciled in the State of New Jersey, was, together with his wife and child, accidentally killed in the State of Texas, where they were temporarily sojourning. In that case a claim for funeral expenses of the decedent and of his wife and child, including the necessary expenses for transporting their bodies from the place where they were billed to their domicile in New Jersey, was filed against the insolvent estate. This claim was allowed by the court, over the exceptions of a judgment creditor who had recovered a judgment against the decedent during his life. The contention of the judgment creditor in that case was that payment of the claim in question was, under the statute, not preferred over his judgment. In that
In Sehouler, Executors and Administrators (2d ed.), §423, the author says: “Administration charges rank with those of the funeral in taking a general precedence of creditors’ demands. * * * No precise rule can be laid down as to the duration of one’s last illness, nor for the degree of attention paid; this must vary with the nature of the disease and the situation of the patient. Unlike administration and funeral expenses, these are not charges growing out of one’s death, but rather debts due from the deceased for services rendered to him during his life; yet a similar necessity may cause them to be rendered independently of one’s consent, and a similar policy favors their priority.”
It is clear that the lower court erred in deciding by its judgment that the claims in controversy were not preferred in their payment over the judgments of appellees, for which error the judgment below is reversed and the cause remanded, with direction to the lower court to order the payment in full, out of the funds arising from the sale of the real estate of the decedent and remaining in the hands of the clerk of the lower court, other than the part thereof