
    JOHN J. GRACE and FRANK L. IRWIN, Copartners, v. CARL S. SMITH, ADMINISTRATOR OF THE ESTATE OF ITO, Deceased.
    Original.
    Submitted March 17, 1902.
    Decided April 3, 1902.
    Fbear, O.J., Galbraith and Perry, JJ.
    Expenses of tlie last illness of a decedent, are not entitled to priority of payment over ordinary debts.
    Plaintiffs in person.
    Defendant in person.
   OPINION OF THE COURT BY

FREAR, C.J.

The only question for determination on this submission on agreed facts is whether the plaintiffs, physicians and surgeons* are entitled to priority of payment for professional services rendered the decedent during his last illness, that is, priority over ordinary creditors.

We have no statute on the subject. In the absence of statute, the expenses of the last illness have no priority. 2 Woemer, Administration, Secs. 361, 364, 365; 8 Am. & Eng. Ehc. of Law, 2nd Ed. 1031. In most of the states such expenses by statute rank next after the expenses of administration, funeral expenses, and debts: to the Hnited States, and before ordinary-debts. This seems to be just, but it is for the legislature, not the courts, to so provide. Hnder the law we must hold that the plaintiffs’ claim should be paid pro rata with other ordinary claims, the estate of the decedent being insufficient to pay them all in full.

Judgment accordingly.  