Estate of Muldoon

Appellant, United States of America, has tax claims against the decedent aggregating $2,616.24. The estate is insolvent. Over appellant's objection to the executor's account the probate judge gave the executor credit for $667.33 for expenses of decedent's last illness paid by him. This left a balance of only $2,084.89 available for the payment of appellant's claims.

Section 191, title 31, United States Code, Revised Statutes, contains the following provisions: "... whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied. ..."

Probate Code, section 950, purports to give preference to expenses of last illness over debts having preference by the laws of the United States. However if the federal and state statutes are inconsistent in this particular the statutory preference given to debts due the United States by its statute is paramount. (United States v. Oklahoma, 261 U.S. 253, 260 [ 43 S.Ct. 295 , 67 L.Ed. 638 ]; United States v. Division of Labor Law Enforcement, 201 F.2d 857, 860 .)

[1a] The only question is…