Opinion
33800.
DECIDED MARCH 13, 1952.
Petition; from Whitfield Superior Court — Judge Paschall. July 19, 1951.
F. Kelly McCutchen, for plaintiff in error.
Isaac C. Adams, contra.
Under the law and the evidence, the claim of the son and heir, against the administrator of his mother's estate for reimbursement for paying out of his own funds the funeral expenses of his mother, he being her heir and the same being charged to her estate by the undertaker, should have been allowed by the court and comes ahead of the claim of Edwards, the mortgagee.
DECIDED MARCH 13, 1952.
This case arose by virtue of a petition by the administrator of the estate of Mrs. Susan King to the Superior Court of Whitfield County, for direction as to how to pay out funds of the estate in his hands, as between C. L. King Jr., an heir and son of the deceased Mrs. Susan King, who claimed $530 of the moneys in the hands of the administrator by reason of having paid the funeral expenses of his mother, the late Mrs. King, and Alfred Edwards, who claimed $475, besides interest, as a balance due on a mortgage by the late Mrs. King in favor of himself and J. W. Edwards, whose interest had been transferred to him, which mortgage was secured by the lands sold by the administrator free of liens, and was for a balance of the purchase money. This was a second mortgage, there being a warranty deed to secure debt in favor of the First National Bank in Dalton, which had already been paid out of the funds realized by the administrator from the sale of said lands free of liens. It appeared that there were not sufficient funds on hand to pay both the claim of the son for the funeral expenses, paid by him out of his money, and the balance due on this second mortgage, which the court found was for a balance of the purchase money on the lands, sold by the administrator free from any liens, and from which sale the bulk of the funds on hand was realized.
The said Alfred Edwards likewise filed in said court an equitable petition, in which he claimed the right to be paid out of said funds. These two proceedings were consolidated and heard before the judge, sitting as a trior of both the law and the facts.
The claimant, C. L. King Jr., contended that he was entitled to be paid out of the funds ahead of the claim of Edwards for the $475 and interest under said mortgage — conceding it to be a mortgage — for the balance of the purchase money on the lands therein described, for the burial expenses of his deceased mother, so paid by him, because such claim for burial expenses was superior to the claim under said mortgage. This claimant sets up that he paid to the First National Bank on the loan deed held by it, $80, and that the administrator had paid to the bank said loan, reduced by the payment of $80, so made by him, and that such payment was made by him to preserve said estate and to protect his interest therein as an heir of his deceased mother. It appears that, when C. L. King Jr. paid the burial expenses on October 29, 1948, his mother's estate was unrepresented, said administrator not being appointed until June 9, 1949.
The court found in favor of Alfred Edwards, and directed the administrator to pay the balance due on this purchase-money mortgage out of the funds in his hands. The court further found against C. L. King Jr., disallowing his claim for the funeral expenses of his mother so paid by him. The son, C. L. King Jr., excepted directly to this judgment.
The consolidated case were tried together under an agreement as to the salient and controlling facts. It is contended by the defendant in error Edwards, that the court was right in directing the payment of his claim ahead of that of the son of the deceased, (1) because the son paid the burial expenses as a volunteer and was not entitled to be reimbursed by the administrator therefor; and (2) that he was entitled to be paid because his claim was based on a balance due on a purchase-money mortgage for land which the deceased had purchased from him. We do not agree with the contention that the son of the deceased paid the burial expenses of his mother as a mere volunteer. When Mrs. King died, it was the moral duty of her son and the heir to see that his mother was properly buried. This he did, and in so doing he was performing a duty he owed to her. His mother left an estate, and the evidence shows that this funeral bill was charged, not to the son, but to the estate of the deceased. The funeral bill was paid by the son on October 29, 1948. At that time no administrator had been appointed, and none was appointed until March 9, 1949. The son being an heir of his mother and there being no administrator at that time and the son having a right to order his mother's funeral, he is entitled to be repaid by the estate. See Kenyon v. Brightwell, 120 Ga. 606, 613 ( 48 S.E. 124). No credit was extended to a third person. The mere fact that C. L. King Jr., ordered his mother's funeral will not, where she left an estate sufficient for that purpose, render him liable therefor; and his subsequent payment of the bill, which was charged to his mother's estate and he being an heir at law with an interest to protect, does not render him liable for the bill nor his payment that of a volunteer. See Collins v. Sam R. Greenberg Co., 73 Ga. App. 377, 378 ( 36 S.E.2d, 484), and cases therein cited.
But the defendant in error Edwards contends that his claim being for a balance due on a purchase-money mortgage, this entitles him to payment ahead of the claim of the son for burial expenses. Code § 113-1508 (2), entitled "Priority of debts," dealing with the order in which the administrator shall pay the debts of his decedent, provides for the payment of the "funeral expenses." This paragraph of said section immediately follows "year's support" for the family, but it is entirely separate and apart therefrom. It is claimed that, under Code § 113-1010, providing that, "Whenever the vendor of land shall make a deed thereto, and take a mortgage to secure the purchase money thereof, neither the widow nor children of the vendee shall be entitled to a year's support in said land as against vendor, his heirs, or assigns, until the purchase money is fully paid," a purchase-money mortgage secured by lands, even though a second mortgage, should be paid before the funeral expenses. By parity of reasoning, under the ruling of this court in Warfield Robinson v. Young, 20 Ga. App. 328 ( 93 S.E. 28), we cannot agree with the contention of the defendant in error, holder of the second mortgage, conceding it to be truly a purchase-money mortgage. Code § 113-1010 does not attempt or purport to regulate or change the general law as to the priority of the payment of the debts of a deceased person, as set forth in § 113-1508. This section provided for one change in the law only, and that was to make the year's support for the family of the deceased inferior to the claim of a vendor of land sold to the deceased for unpaid purchase money. This statute (Code, § 113-1010) affects property rights and must be strictly construed, and under such a construction it does not amend § 113-1508 except as to the particular therein stated and provided for, which is to make a year's support for the family of a deceased person inferior to the lien or claim of a vendor for the purchase money of land.
The above is determined on the basis that the mortgage of Edwards — which is a second mortgage, and does not show on its face that it is for purchase money of land — comes within the purview of § 113-1010. Mortgages, under the statute, rank sixth in the payment of debts of a deceased.
There is no contention in this court regarding the payment to C. L. King Jr. of the $80 which he paid to the First National Bank on its claim against his mother's estate. It was rightfully paid.
The judgment excepted to, being contrary to the law and the evidence, is set aside and reversed.
Judgment reversed. Townsend and Carlisle, JJ., concur.