In re Lester's Estate

• Decision Date: 12 February 1915
• Docket Number: No. 29863.,29863.
• Citation: 169 Iowa 15,150 N.W. 1033
• Parties: IN RE LESTER'S ESTATE.
• Court: Iowa Supreme Court

169 Iowa 15

150 N.W. 1033

IN RE LESTER'S ESTATE.

No. 29863.

Supreme Court of Iowa.

Feb. 12, 1915.

Appeal from District Court, Wapello County; F. M. Hunter, Judge.

This is a proceeding in probate for an order authorizing the administrator to expend $125 for a monument for deceased. The court granted the order for a monument in the sum of not to exceed $100, but provided that before expending said amount for that purpose the administrator should first pay all funeral expenses and the expenses of the last sickness of the deceased, which should include the sum of $156 of the $363 claim allowed by the court in favor of Rachel Mead, so far as the administrator has assets in his hands. The administrator, E. M. Lester, appeals. Affirmed.Tisdale & Heindel, of Ottumwa, for appellant.

Steck & Steck, of Ottumwa, for objector, Rachel Mead.

PRESTON, J.

Appellant is the son and only heir at law and the sole beneficiary under the will of deceased. The showing is that the assets consist of $280 in money and a small amount of household goods; that the indebtedness against the estate and admitted claims amount to about $140, but that, in addition to such claims, is the claim of Rachel Mead, which was allowed in the sum of $363. $156 of the Rachel Mead claim was for nursing the deceased, as we understand the record, and we do not understand appellant to dispute that fact. The objector, Rachel Mead, filed written objections to the granting of the order because the administrator is the son of decedent and had received from his mother, the deceased, all the real estate she owned, of the value of from $1,000 to $1,200, as she says, and for the further reason that the application is not made in good faith, but made for the purpose of preventing Mrs. Mead from making any part of her claim.

The testimony of the administrator shows that the house and two lots deeded to him about 1910 were estimated to be worth from $600 to $700. The administrator has paid out about $8 or $9 for witness fees and $5.30 for the funeral dress. The funeral expenses were $90. There was also a claim filed for digging a grave and a livery bill. The total claims filed amount to about $685, including the allowance of objector's claim. The funeral expenses have not been paid, nor has anything been paid on Mrs. Mead's claim. The estate is insolvent. The administrator, as a witness, admits that there is feeling between himself and his aunt, Mrs. Mead, because of her coming to nurse his mother.

The contention of the appellant is that the cost of a monument is a part of the funeral expenses under the statute, and that the court should not have preferred Mrs. Mead's claim, or a part of it, as ahead of the expense for monument; that, if there is not money enough to pay all the funeral expenses, they should be prorated. We have no argument for appellee. Appellant cites a number of cases from this and other states in support of his claim, among them Hapgood v. Houghton, 10 Pick. (Mass.) 154;Ferrin v. Myrick, 41 N. Y. 315; Fairman's Appeal, 30 Conn. 205.

In the Hapgood Case the question determined was one of pleading, and the Ferrin Case arose on the question of a contract for funeral expenses.

In the Connecticut case it was held that tombstones are properly a part of the funeral expenses, but it was said by the court in that case:

“We do not intend to hold that an administrator or executor may procure them (tombstones) in all cases at the expense of the estate. If the estate is solvent, we think he should consult the heirs, and have the advice and approbation of the court of probate. If it is insolvent, they certainly should not be obtained without that advice and approbation. In the absence of specific legislation, the propriety of obtaining them, and at what expense, may properly be left to that court.”

Webb's Estate, 165 Pa. 330, 30 Atl. 827, 44 Am. St. Rep. 666, Barclay's Estate, 11 Phila. (Pa.) 123, and Porter's Estate, 77 Pa. 43, are cited on the proposition that an allowance for the expense of a suitable tombstone over the grave of decedent is a legitimate item of credit in the account of an executor. Laird v. Arnold, 42 Hun (N. Y.) 136, and In re Shipman, 82 Hun, 108, 31 N. Y. Supp. 571, are cited to sustain the proposition that the cost of a suitable monument is properly allowed the administrator as a part of the funeral expenses. In Kentucky, such is made a part of the funeral expenses by statute. Hespen's Ex'x v. Hespen, 105 S. W. 99, 31 Ky. Law Rep. 1328. In Bendall v. Bendall, 24 Ala. 295, 60 Am. Dec. 469, it is held that the cost of a tombstone, if not...