On appeal from a judgment of the District Court of the Second Judicial District of Essex county.
For the plaintiff-appellant, Harry Silverstein.
For the defendant-respondent, J. Howard Conover, pro se.
Before Justices Case and Donges.
The opinion of the court was delivered by
DONGES, J. Plaintiff, a licensed undertaker, sued to recover from defendant, as executor, &c., of Ida C. Kylberg, deceased, the sum of $385.20 for funeral expenses for the burial of the decedent.
Defendant executor filed a specification of defenses, setting up three defenses, first, that the defendant, as executor, did not order the services to be furnished; second, that an order barring creditors had been entered pursuant to the statute, and that this was a bar to the present claim, no claim having been filed by plaintiff within the time limited by said order; and third, there was no proof of assets in the estate with which to pay the claim.
The state of case settled by the trial judge discloses that decedent died February 1st, 1935; that the defendant did not order the funeral, but that the son of decedent ordered same from plaintiff; that the charge therefor was reasonable; that the defendant executor had sufficient moneys or assets of the estate to satisfy the plaintiff's claim; that decedent's will directed the executor to pay funeral expenses; that the will of decedent was duly probated and defendant was duly appointed and qualified as executor of said estate on February 13th, 1935; that on February 16th, 1935, an order was entered limiting creditors and on August 17th, 1935, an
order barring creditors was duly entered; and that plaintiff failed to file his claim under oath within the time limited in said order limiting creditors.
The trial judge determined that the failure of appellant to file his claim within the time limited by the rule to limit presentation of claims and the rule barring creditors operated to defeat the claim of appellant, and gave judgment against him. In view of the findings of fact as to the matters submitted, as to which there is no controversy, we conclude that it is necessary to consider the single question upon which the trial judge found against the appellant.
By the several sections of the Orphans Court act dealing with claims against a decedent's estate, it would appear that funeral expenses are put in a different class from debts of the decedent. Judgments entered of record in the lifetime of decedent, funeral expenses, physicians' and nurses' bills during the last illness are to be first paid. It is further provided that no suit may be brought against an executor or administrator within six months of appointment, except for funeral expenses.
The sections of the statute providing for the entry of an order requiring the presentation of claims and demands against the estate within a time limited and for the rule to bar claims and demands not so presented, use the terms "creditors of the decedent" in section 67 ...