UNDERTAKING CO. v. SMITH'S ESTATE

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Docket Number

No. 33304.

Attorney(S)

F.K. Ethridge, of Meridian, for appellant. It is our contention that this being a claim that did not arise during the lifetime of the deceased but arose after the death of the deceased that no statute of limitation applies thereto. Secs. 1643 and 1674, Code of 1930; Amis, Duties of Executors, Administrators and Guardians, sec. 6; Donald v. McWhorter, 44 Miss. 129; 84 Miss. 374. In the case of Geulden v. Ramsey, 85 So. 109, the identical question was raised that the account was barred by the statute of limitation, therefore should not be paid. In that case our Supreme Court planted itself firmly on the proposition that it was not a claim against the deceased in which the four years and a half statute appertained, but that it was a claim against the administrator which arose during the process of the administration and became a charge against him which was payable out of the property of the deceased, was a preference claim and that it was the duty of the administrator to see that this claim was taken care of as any other of the preference claims. We submit that it would be unfair, unjust, and unequitable to allow and permit an administrator to be guilty of laches and neglect of duty and to take advantage thereof. Amis, Executors and Administrators, page 29; Bryant v. Bryant, 167 So. 56. We respectfully contend that this account for funeral expenses is an account not against the deceased but an account that arises in the course of the administration of the estate for which the executor, administrator, or trustee is made liable and required to pay just the same as he is required to pay the court costs, one year's support of the widow, the taxes, the attorney's fee and each and every other expense of administration and that as long as the estate is open and is being administered, no statute of limitation runs and just so long as that estate remains open, it is liable for the payment of those expenses. Mize, Thompson Mize, of Gulfport, for appellees. We do not deny that a claim for funeral expenses or a claim for services rendered during a decedent's last illness are priority claims, but we also assert that administrator's fees and commissions, court costs, the fees for the administrator's solicitors and administrative costs are also priority claims and it has always been our understanding that an administrator has a lien against the estate for the payment of his expenses, and for that reason we think that the administrator was a necessary party to the petition praying for the sale of the real estate. Without the administrator's knowledge of the proposed sale the property of the estate could not be sold and bought in by some creditor for a very small sum and the estate would be squandered. 11 R.C.L., page 215, sec. 240, page 277, sec. 317. It therefore follows that a demand must be made before a suit can be brought and that the demand must be made on the administrator. 11 R.C.L. 278, sec. 319. The administrator relies on Sections 1673 and 2295 of the Mississippi Code of 1930 to prove that the claim of the appellant is barred by the statute of limitations. We agree, though we may be in error, with the appellant, that it is unnecessary for a claim for funeral expenses to be probated. However, in this case the claim was filed for probate. In our opinion, Section 2295 of the Code of 1930 bars by limitation the claim of the Tom E. Taylor Undertaking Company. Hardenstein v. Brien, 96 Miss. 493, 50 So. 979; Rogers v. Rosenstock, 117 Miss. 145, 70 So. 958; Toler v. Wells, 155 Miss. 628, 130 So. 298. The statute of limitations, that is Section 2295 of the Code of 1930, begins running on the qualification of the first administrator of the executor and is not stopped by his subsequent resignation. Champion v. Cayce, 57 Miss. 712; Boyd v. Lowery, 53 Miss. 352. It is most important that the administrator have demand made on him or have notice of the pendency of a suit against the estate as he is a party interested in the proceedings. Woods v. Elliot, 49 Miss. 168. Argued orally by F.K. Ethridge, for appellant.

Judges

Anderson, J., delivered opinion of the court.

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TOM E. TAYLOR UNDERTAKING CO. v. SMITH'S ESTATE.

1. EXECUTORS AND ADMINISTRATORS.

A claim for funeral expenses need not be probated.

2. EXECUTORS AND ADMINISTRATORS.

Funeral expenses are part of the costs of the administration of an estate, and are in the same category, as respects limitations, as are other expenses of administration.

3. EXECUTORS AND ADMINISTRATORS.

Limitations do not run against claims for expenses of administration as long as the estate is open.

4. EXECUTORS AND ADMINISTRATORS.

A statute requiring that an action against an executor or administrator on a judgment or other cause of action against the testator or intestate be brought within four years after qualification of such executor or administrator, applies alone to obligations incurred by the deceased in his lifetime and does not apply to causes of action based on claims arising out of expenses of administration (Code 1930, section 2295).

5. EXECUTORS AND ADMINISTRATORS.

A proceeding to procure the sale of sufficient property of an estate to pay the balance due on the funeral expenses of deceased, instituted more than four years after obligation was incurred but while estate was still open, was not barred by the four-year statute of limitations applying to actions against an executor or administrator on a judgment or other cause of action against a testator or intestate (Code 1930, section 2295).

Anderson, J., delivered opinion of the court.

Appellant, whose business is indicated by its name, sought to have sold through a proceeding in the Chancery Court a sufficiency of the estate of Hettie K. Smith, deceased, which estate is the appellee in this cause, to pay a balance due on her funeral expenses. The point was made on behalf of the estate that the claim was barred by the four-year statute of limitations (Section 2295, Code 1930). The chancellor so held and dismissed the proceedings. From that decree this appeal is prosecuted. The cause was tried on agreed facts.

On the death of Mrs. Smith, appellant was engaged to prepare her body for burial, which consisted of embalming it, furnishing suitable casket and shroud, and also to superintend the interment of her body. The bill therefor was $645. Appellant probated the account against the estate. It was allowed for that amount, of which the administrator paid $300, leaving a balance due of principal and interest when this proceeding was begun of something over $500. The four-year statute of limitations is as follows: "An action or scire facias may not be brought against any executor or administrator upon any judgment or other cause of action against his testator or intestate, but within four years after the qualification of such executor or administrator." Largely more than four years had elapsed since the obligation was incurred by the estate.

In the first place the claim for funeral expenses was not required to be probated. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109.

The funeral expenses are part of the cost of the administration of the estate. They arise and become a charge upon the estate after the death of the decedent. They are in the same category, so far as the statute of limitations is concerned, as the other expenses of the administration. As long as the estate is open, the statute of limitations does not run against such claims. Section 2295 has no application. It applies alone to obligations incurred by the decedent in his lifetime. Bingaman v. Robertson, 25 Miss. 501.

Judge ETHRIDGE, being disqualified, took no part in the decision. By agreement of the parties, the case was tried before and submitted to the other two judges.

Reversed and remanded.

TOM E. TAYLOR UNDERTAKING CO. v. SMITH'S ESTATE.

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