Van Gilder v. Warfield

It seems to me that, going directly to the heart of the controversy involved herein, the ultimate, decisive question is whether the amounts paid out by the administrator and the credits allowed respondent were for expenses of the last illness of the deceased and for the necessary preservation of the estate, and therefore fall within section 15-1127 I. C. A. as not requiring the filing of claims therefor, as construed in Hubbard v. Ball, 59 Idaho 78,81 P.2d 73.

Though the amount was not as large and the period of time over which the expenses had been incurred was not so extensive, and was not, as herein, in part loans, and though I there dissented, the majority there held, and such is evidently now the established law in this jurisdiction (Walling v. Bown,9 Idaho 740, 76 P. 318; International Mtg. Bk. v. Barghoorn, 43 da. 24, 248 P. 868; In re Speer, 53 Idaho 293,23 P.2d 239), that such expenses fell within section 15-1127 and did not require the filing of a claim therefor, and stated that that section should be given a liberal construction. Applying that holding and such construction and that of similar cases (21 Am. Jur., Executors and Administrators, sections 350 and 397, pages 580 and 609; Vol. 3, Bancroft's Probate Practice, section 973, page 1649, and sections 780-1, pages 1391-3; In reHansen's Estate, 55 Utah 23, 184 P. 197) clearly justifies the conclusion that these expenditures were legitimately approved by the probate court as expenses of the last illness though no claims had been filed therefor.

Although I have not found any cases directly passing upon such allowance where the expenditures were by a guardian, it does not seem to me that whether the expenses were paid through the medium of a guardian or directly through, to, or on account of the deceased would make any difference, the controlling point being whether they were actually expended and were reasonably necessary in connection with the last illness, and this, as stated by the Chief Justice, the record clearly proves. I therefore concur in the conclusion. (McLean v. Breen, (Tex.) 219 S.W. 1089, 9. A.L.R. 459; Fleming v. First Nat.Bank, (La.) 141 So. 793; Proto v. Chenoweth, 40 Ariz. 312, 11 P.2d 950; Long v. Northrup, 225 Iowa 132,279 N.W. 104, 116 A.L.R. 1475.)

The statutes (sections 15-1822-3 I. C. A.) would seem to justify if not require such expenditures.

It is urged that it is too late to now question the allowance of these claims, since an order of confirmation was entered and no appeal taken. As against this, various grounds of imputed extrinsic fraud are asserted. It does not seem to me there is any extrinsic fraud, and while I am not of the opinion that it is too late, in this quiet title suit brought by a creditor as purchaser by application of his claims on the purchase price of the land of the estate, for the heirs to question these payments, it does seem to me that the situation may be viewed differently than if it were on appeal in the first instance directly from any of the probate proceedings.

I reserve, however, the point as to when, to what extent, and under what circumstances, not the deceased wife's estate, but the husband, is exclusively, jointly, or at all liable for the expenses of the last illness of and funeral for his deceased wife. Such reservation is for two reasons: first, the point was not presented herein; and second, though only indirectly adverted to and meagerly inferentially appearing, it would seem that recourse against the husband would have been totally unavailing.

In connection with such reservation I notice that our legislature, though adopting from California sections 173 and 176 of the California Code of Procedure, being sections 31-915 and 31-916, I. C. A., did not see fit to adopt section 174 of the civil code, under which California has held that the husband alone is liable for such expenses. (In re Weringer'sEstate, 100 Calif. 345, 34 P. 825; Medros v. Kohn, 68 Calif., A. 367, 229 P. 873; Riley v. Robbins, (Calif.)25 P.2d 539.) See also In re Wilson's Estate, 160 Okla. 23,15 P.2d 825; Vol. 3, Bancroft's Probate Practice, section 1039, page 1742; Palmer v. Turner, 241 Ky. 322, 43 S.W.2d 1017; Vol. 3, Bancroft's Probate Practice, section 782, page 1393; 27 Am. Jur., Husband and Wife, sections 456-8, pages 56-7; 21 Am.Jur., Executors and Administrators, sections 330 and 334, pages 568 and 571; 30 C. J., Husband and Wife, section 156, page 606 et seq.; Barnes v. Starr,144 Md. 218, 124 A. 922.

What is stated to be the majority rule is set forth in 31 A.L.R. 1499, the contrary or minority rule being referred to at page 1506. Attention is also called to Edminston v. Smith,13 Idaho 645, 92 P. 842, and McHan v. McHan, 59 Idaho 496,84 P.2d 984.