
    Nolan, Exrx., v. Kroll.
    (Decided September 19, 1930.)
    
      Mr. II. L. Peeke, for plaintiff in error.
    
      Messrs. King, Ramsey é Flynn, for defendant in error.
   Lloyd, J.

At the time of her decease, Anna Miller Collins owned certain real estate which theretofore had been mortgaged to Katherine Kroll. The personal property of decedent being insufficient to pay her debts, proceedings were commenced and consummated in the probate court to sell the mortgaged real estate to pay the debts of the decedent’s estate.

The proceeds of the sale were inadequate to pay both the mortgage indebtedness and the funeral expenses and other claims against the estate. The executrix contends that funeral expenses are preferred above all other claims, including the mortgage indebtedness; the mortgagee, Katherine Kroll, claiming that the lien of her mortgage is subject only to .the costs and expenses of the sale and the per cent, and charges of the executor or administrator, as provided in Section 10809, General Code.

Funeral expenses are not, strictly speaking, debts of an estate, but the law humanely declares that the administrator or executor shall be obligated to pay them to the extent that the same are reasonable and there are assets of the estate in his possession for administration. Whatever the law may be in other jurisdictions, in Ohio the real estate of a decedent descends directly to his heirs or devisees, and is not assets of the estate to be administered by the executor or administrator, except that, when “the personal estate in his hands will not pay all the debts of the deceased, with the allowance to support the widow and children for twelve months, and the charges of administering the estate,” he is authorized by Section 10774 et seq., General Code, to proceed to sell same, and by Section 10809, General Code, is directed as to the manner of the application and distribution of the proceeds of the sale. The latter section reads:

“The money arising from the sale of real estate shall be applied as follows:
“1. To discharge the costs and expenses of the sale, and the per cent and charges of the executor or administrator thereon, for his administration;
“2. To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as they operated as a lien on the estate at the time of his death; which shall be apportioned and determined by the court, on reference to a master or otherwise;
“3. To the discharge of claims and debts, in the order mentioned in this title.”

It seems to us that language could not well be more explicit. It is evident that the words, “to the discharge of claims and debts, in the order mentioned in this title,” refer to debts and to the order of payment specified in Section 10714, General Code. These two sections appear in Part Third, Title III, Chapter Three, of the Code, and obviously must be construed together, and, so construed, particularly and definitely determine for the administrator or executor how he shall proceed in the payment of debts of an estate in process of administration.

"We have examined not all but many of the authorities cited by plaintiff in error, but do not find them applicable to the administration of estates in Ohio. The statutes of this state are in our judgment unequivocal in terms, and must govern.

The judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.

Williams and Richards, JJ., concur.  