Hildebrand v. Kinney
| Decision Date | 19 March 1909 |
| Docket Number | 21,429 |
| Citation | 87 N.E. 832,172 Ind. 447 |
| Parties | Hildebrand v. Kinney, Administrator |
| Court | Indiana Supreme Court |
Rehearing Denied June 9, 1909.
From Marion Circuit Court (C. D. 8,384). James A. Pritchard, Judge pro tem.
Claim by Philip M. Hildebrand against Collie E. Kinney, as administrator of the estate of Jacob S. Hildebrand, deceased. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1394 Burns 1908, cl. 2 Acts 1901, p. 565, § 10.
Reversed.
U. J. Hammond, for appellant.
Collie E. Kinney, in pro per, for appellee.
Action by appellant against appellee administrator, upon a claim for expenses of the last sickness and funeral of Jacob S. Hildebrand, deceased, who died intestate, June 2, 1898, insolvent, having no personal property or estate other than an undivided one-third interest in certain real estate which had, at the death of his wife, intestate, July 5, 1885, descended to her three children and to the decedent as her widower. The latter was a member of a copartnership which became insolvent in 1893, and against the members of which judgments were recovered, which copartnership, and its members, at the time of its failure, owed about $ 40,000 in excess of its assets, and the personal and private assets of the members.
Appellant procured a physician to render medical attention to the decedent, in his last sickness, and paid him on March 11, 1899, $ 40, which the court below found to be a reasonable charge. Appellant procured an undertaker to furnish, to the decedent, burial, and accessories thereto, and paid him on July 21, 1898, $ 194, which the court found to be a reasonable charge, and such burial and accessories were, as found by the court, not extravagant, but reasonable and proper, and in keeping with the decedent's station in life. Appellant procured a burial vault for the decedent, and paid therefor $ 45 on July 9, 1898, a reasonable charge, as found by the court. On the the day prior to decedent's death appellant procured an invalid chair for the use and comfort of the decedent, for which he paid $ 1.50, on August 8, 1908.
Appellee was appointed administrator of the estate of decedent on October 8, 1904, on the petition of judgment creditors of the copartnership. He qualified and is acting administrator, no other administration having ever been had on the estate. The real estate which descended from the wife of the decedent has been sold in a partition proceeding for the purpose brought by appellee, as administrator, against the three children of said wife, and appellee, as such administrator, holds one-third of the proceeds of such sale for the payment of debts of the decedent. The claim was filed December 13, 1905. The sole question presented arises upon the question of the applicability or nonapplicability of the six-year statute of limitations to this claim. The claim is readily divisible into two parts: one branch arising from professional services rendered to the decedent in his lifetime, and for an invalid chair for his use, both items accruing in the lifetime of the decedent, upon request of appellant, a son of decedent; the other branch, for the expense of the funeral, including a burial vault for the decedent, ordered and paid for by appellant.
It is insisted by appellant that though the physician's bill and the expense of the invalid chair were obligations accruing in the lifetime of the decedent, the six-year statute of limitations (§ 294 Burns 1908, cl. 1, § 292 R. S. 1881) does not apply, for the reason that the statute did not begin to run until there was some one who could be sued. Appellee insists that when the statute begins to run it is not tolled by the death of a decedent, and that, as the statute (§§ 2742, 2744 Burns 1908, Acts 1901, p. 281, § 2229 R. S. 1881) provides for a creditor's procuring the appointment of an administrator, the claim is barred. In this contention we think appellee is correct. As to the claim of appellant for money paid for the service of a physician and for an invalid chair, it was clearly an account within our statute requiring actions on accounts to be commenced within six years. Whether the expense was incurred at the request of the decedent, or solely upon request of appellant, or under his promise to pay it, if there was any liability upon the part of decedent to pay, either express or implied, the obligation and debt arose before his death, and the weight of authority is, that when the statute begins to run before the death of a decedent, in the absence of statutory provision, it is not suspended by death, or by the failure of appointment of an administrator. 18 Cyc., 930; 19 Am. and Eng. Ency. Law (2d ed.), 222; Wood, Limitations (3d ed.), § 6. A claim or a debt which would be barred if the claim were made by the original creditor or claimant would likewise be barred in the hands of a third person.
As to a claim for funeral expenses and burial, we think a different rule should and does apply. They 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 decedent, express or implied, unless it might be under the provisions of a will. They are liabilities or charges against his 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. An administrator is a trustee for the payment of funeral expenses, because they are impositions of the law, precisely and for the like reasons that he is a trustee for the persons who are entitled to the distributive shares of an estate by virtue of the statute of descents, or for creditors of the estate proper. Raugh v. Weis (1894), 138 Ind. 42, 45, 37 N.E. 331; Smith v. Calloway (1844), 7 Blackf. 86, 89.
Prior to 1883, in case of solvent estates, expenses of administration were in the first class, in the order of payment, and expenses of the last sickness and the funeral constituted the second class, and in case of insolvent estates payments were made in the same order pro rata among the designated classes. 2 R. S. 1876, pp. 534, 540. Society and the public health require the decent disposition of the bodies of the dead, and this is so far recognized by our statute that funeral expenses are required to be paid before other claims, which are properly obligations of the deceased. Patterson v. Patterson (1875), 59 N.Y. 574, 17 Am. Rep. 384; Genet v. Willock (1904), 87 N.Y.S. 938, 93 A.D. 588; Gregory v. Hooker's Admr. (1821), 1 Hawks (N. C.) 394, 9 Am. Dec. 646; Phillips v. Phillips (1895), 87 Me. 324, 32 A. 963. Our statute recognizes the distinction between debts of the decedent and liabilities of his estate, in the provision for distribution, as follows: "The debts and liabilities of a decedent, shall, if his estate be solvent, be paid in the following order of classes." § 2901 Burns 1908, § 2378 R. S. 1881.
Claims for funeral expenses are held in New York not to be the subject of reference, as "in case of claims accruing in his lifetime, against the estate of the decedent, or after death from a prior contract." Genet v. Willock, supra.
This court has declared that taxes, a liability imposed by law, and the fourth item of the classification in the order of distribution, are not barred, though the claim arose for taxes upon omitted property, where the taxes were not assessed until after an order of final settlement had been duly entered; whereas, had they been debts proper of the decedent, they would have been barred. Graham v. Russell (1899), 152 Ind. 186, 52 N.E. 806. Nor did they become taxes, though assessed for years prior to the death of the decedent, until placed upon the duplicate. Gallup v. Schmidt (1900), 154 Ind. 196, 56 N.E. 443.
It is held that where it requires the entire proceeds of property to discharge a lien created by a decedent, and the estate is insolvent, no part of that fund can be applied to the expense of administration, or for funeral or last sickness of the decedent, thus placing these classes on an equality. Ryker v. Vawter (1889), 117 Ind. 425, 20 N.E. 294. And this has been held to be true as to the costs of foreclosure of a mortgage, the estate being insolvent. Connecticut Mut. Life Ins. Co. v. Hobbs (1896), 14 Ind.App. 681, 43 N.E. 452. In case of solvent estates, as an incident of burial, a tombstone or monument may be erected by the heirs, and must be paid for by the administrator. Pease v. Christman (1902), 158 Ind. 642, 64 N.E. 90. 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; and, where the duty exists, it may be discharged by kindred, or by third persons, and the law imposes the charge upon the estate. Patterson v. Patterson, supra; Rappelyea v. Russell (1862), 1 Daly 214; Parker v. Lewis (1828), 2 Dev. (N. C.) 21; Allen v. Allen (1884), 3 Dem. Surr. 524; In re Miller (1880), 4 Redf. 302; McCue v. Garvey (1878), 14 Hun 562; France's Estate (1874), 75 Pa. 220; Sullivan v. Horner (1886), 41 N.J. Eq. 299, 7 A. 411; Wentworth, Executors (Ingraham's ed.), 258. In New Jersey, judgments against a decedent in his lifetime, funeral charges and expenses, and physician's bills in last sickness, are classed together by statute, as having preference; but in Sullivan v. Horner, supra, the court gave preference to the funeral expenses over the judgment, upon the theory that the law imposes the duty of burial to the exclusion of the judgment, the estate being insolvent.
We think that the legislature intended to classify the charges against the estates of decedents, and that the...
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