The opinion
DOOLIN, Vice Chief Justice,
concurring in Part II, dissenting to Part I.
The trial court’s ruling undoubtedly represents the traditional position of the Oklahoma Bar, when it requires compliance with the non-claim statute of this State, 58 O.S.1981, § 331, et seq. According to this requirement, if the claim for last illness be not presented within the time limit of the notice section, § 331 “it is barred forever.”
It is the position of this Claimant that the expenses of last illness are exceptions to the non-claim statutes.
We start with 58 O.S.1981, § 594 which states:
“The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this chapter, the payment has been ordered by the court.” [emphasis added.]
This statute, commencing with a direct order and statement that the executor or administrator must pay the expenses of *402 last illness when funds become available, is controlling as to those expenses and the final phrase, which states he is not required “to pay any other debt” until ordered by the Court refers to antecedent debts contracted for prior to the demise and covered by the non-claim statutes.
The legislature, on adoption of the probate code had no previously decided cases from the Dakotas or California 1 interpreting the enacted statute so there appears no impediment to a fresh or initial interpretation at this time.
Section 594 distinguishes and sets apart expenses of the “last illness” and creates a special or preferred debt status for such expenses. It speaks only of debts, not claims.
Title 58 O.S.1981, § 591 further specializes and differentiates between ordinary claims incurred by the decedent before demise when it fixes or sets priority in the order of payment of debts.
§ 591. Order of Payment of Debts.
1. Funeral expenses.
2. The expenses of the last sickness.
3. ...
4. ...
5. ...
6. ...
7. Demands or claims which are presented to the executor or administrator for an allowance or proved within two months after the first publication of notice to creditors.
8. ...
Of what purpose was the enactment of Sections 1, 2 and 7 of § 591 if the act of the Legislature did not intend a special preferred debt status and special position of § 594 claims, over the non-claim statutes? Was the enactment of §§ 594 and 591 a vain and useless action of that long-forgotten Legislature?
Also pertinent are §§311 and 312 of Title 58 in the 1981 statutes.
Section 311 lists property to be delivered to the family of the deceased as homestead, and states the surviving husband or wife is entitled to possess the homestead, as are the children if both husband and wife be deceased. The statute ends with this statement:
“No such property shall be liable for any prior debts or claims whatever.” (Thus differentiating again between debts and claims).
Title 58 O.S.A. § 312 presents us with our old nemesis, “last illness” when, after increasing the property mentioned in the preceding section, (58 O.S.1981, § 311), states “there shall also be allowed and set apart to the surviving wife or husband or minor child or children of the decedent all such personal property or money as is exempt by law from levy and sale on execution ... to be, liable for any prior debts or claims against the decedent, except when there are no assets thereunto available, for the payment of the necessary EXPENSES OF HIS LAST ILLNESS, funeral charges _” [emphasis added].
Section 312 has not been heretofore interpreted, but it again gives expenses of the last illness priority, special effect, and is entitled to preferred debt status over other ordinary claims.
In 1937, we dealt with expenses of the funeral, and referred to § 1258 of the 1931 statutes as being controlling. Section 1258 is now codified as 58 O.S.1981, § 594. In Re Wagner’s Estate, 62 P.2d 1186, 1191 (Okl.1937), quotes Golden Gate Undertaking Co. v. Taylor, 168 Ca. 94, 141 P. 922, 924 , 52 A.L.R. (N.S.) 1152, Ann.Cas. 1915D, 742, which observed:
“Not only, then, is the charge for funeral expenses a debt of the estate, but is a preferred debt of the first class, and is payable as soon as the executor or *403 administrator has sufficient funds in his hands.”
It is true the Oklahoma Court in In Re Wagner’s Estate also made the distinction that a funeral claim was not one made by the decedent in his lifetime, and no claim need be filed. There is little need for this obvious distinction, for one ordinarily does not incur the expenses of one’s own funeral until death. The importance of that case lies in its classification of such a § 594 debt as being a preferred debt, one to be treated differently by the executor. Since the phrase “expense of last illness” directly follows the term “funeral expenses” in the statute, there is little ground for us to suppose the legislature intended that funeral expenses could be paid without a formal claim, but not so expenses of the last illness. Stated another way, the language of Wagner’s Estate emphasized the administrator’s statutory duty to pay funeral (i.e. preferred) debts out of the “first funds in his hands”; and inasmuch as both funeral expenses and expenses of last illness are undifferentiated preferred debts, there is no basis for a different rule for each.
I would find the Probate statutes, §§ 311, 312, 591 and 594, are special or specific acts which must control over the general statutes. 2 This maxim or rubric is one of long standing and should be grafted to and ingrained in the law of decedent’s estates.
To argue that § 594 does not do away with the necessity of filing a claim for expenses is to beg the question. This argument, which I take to be ill-founded, begins by accepting the desired result (that filing a claim is necessary) as fact and then uses that fact to prove the argument. Such circular reasoning is illogical and smacks of a non-sequitur and it should not, therefore, be used to decide a question of fundamental, statutory interpretation.
Lastly, the appellee’s argument that a claim must be filed for payment of the expenses of last illness raises a new question even as it seeks to resolve the one before us. How, in light of the rule stated herein, are the courts to interpret and give effect to language commonly found in wills wherein the testator specifically directs the executor “to pay the expenses of my last illness and funeral”? Such clauses are as old as testaments themselves and, as long as they are not precatory in nature, should be considered valid orders by the decedent which direct payment of these preferred debts without the necessity of further action, such as the filing of a claim. To a testator attempting to put his affairs in order as he contemplates the inevitable, nothing is dearer than the assurance that he has provided, as well as he can, for proper medical care in his final days and for a decent burial. These are matters which I would not now infuse with uncertainty.
In summary, I would hold that funeral expenses and expenses of last illness are debts of a special status. We base such finding on the plain language of 58 O.S. 1981 , § 594 and upon the broader consideration of the importance of these services, both to the testator and to society at large. The Court of Appeals of Louisiana stated the matter very well in Succession of Barry, 236 So.2d 660 , (La.App.1970), when it said:
Humanitarian considerations underlie the granting of this (preferred debt) privilege of high rank in favor of those to whom claims are due for services rendered in time of need. In the event of death, the physician and others rendering those services are assured that their charges will not be treated as ordinary debts with less chance of payment. This obvious intent is to make it less likely that one will be deprived of much-needed service because of doubtful means of payment, [parenthetical phrase added] *404 See also: Wolf v. Knapp, 103 N.W. 369 (Iowa 1905) and In Re Hansen’s Estate, 184 P. 197 (Utah 1919).
Clearly, these are the same laudable goals embodied in our statute by the original drafters of the Oklahoma probate law, and there is a clear intent to give these two classes of debts preferred status. That this opinion comes some 79 years after statehood and after two or more generations of probate lawyers is no argument that its reasoning and its ideals are invalid. A misinterpretation of the law is no less wrong for its longevity.
The majority opinion quotes State ex rel. Central State Memorial Hospital v. Reed, 493 P.2d 815, 818 (Okl.1972). 3
I believe the quote to be dicta for the action clause says, and as edited by West Publishing Co., its prime thrust is to establish that a state institution is subject to the same non-claim statute, 58 O.S.1981, § 331, et seq. as any other creditor.
We know from reading Central State Hospital, supra, that a claim was disallowed some three years after the notice to creditors had been given and an appeal was taken. We also know that a claim was based on treatment of a wife for whose care he was responsible covering a period of twelve years prior to his death. We know that claim was disallowed and that a separate action on the claim was commenced approximately three years after notice to creditors. This is not the same fact situation as in the instant case. The course of action in the case at bar is bottomed on a question of purported statutory right under 58 O.S.1981, § 594.
It is my contention that under 58 O.S. 1981 , § 596 4 this statute must be followed in the instant case for the reason there is a disputed claim (or debt) against the estate, and that the executor or administrator would be required to pay the amount of the disputed claim into court because the appeal pends. As further proof of the differences in the posture of the two cases, we note there never was a rejected claim on which an action was based under 58 O.S. 1981 , § 339 in the instant case.
If on the other hand a final accounting had been rendered and it had become final Sec. 596, supra, would never be triggered. The same reasoning should be our solution to the case before us today, for we know that “this estate, however, ... is still pending and is solvent so that a delay in the expeditor’s closing ... is not an issue.” 5
I would suggest that the rule to be established by this case and for application prospectively should be: If a creditor fails to make known a disputed claim or debt under the facts and circumstances of this case by a separate action or timely objection to a final accounting then no cause of action arises under 58 O.S.1981, § 594. This cause of action is not a suit on a rejected claim, it is the equivalent of payment of funeral expenses without claim.
My holding on the issues of the necessity • of filing a claim might render it unnecessary to address the second allegation of failure of notice. Cate v. Archon Oil Co., 695 P.2d 1352 (Okl.1985); Mullane v. Cen *405 tral Hanover Bank, 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 (1949); Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okl.1968). Although, I strongly support these cases but believe Probate Proceedings with reference to notice grant process that is due to the parties. The authorities cited by the majority and reasoning thereof is soundly convincing.
. Historical note: The Probate Code in effect in Oklahoma may be traced from California through the Dakotas (See 1 Huff, Oklahoma Probate Law 10). The Supreme Court of South Dakota, in Estate of Bachand, 307 N.W.2d 140 (1981), held that a claim must be filed under a statute such as our § 594. Although this case is persuasive, it is not necessarily controlling because its ruling comes more than 80 years after our adoption of 58 O.S.1981, § 594.
. Where there are two statutory provisions, one of which is special and clearly includes the matter in controversy, and prescribes different rules and procedures from those in the general statute, the special statute and not the general statute applies. Southwestern Bell Telephone Co. v. Oklahoma County Excise Board, 618 P.2d 915 (Okl.1980).
. The purpose of the nonclaim statute [ 58 O.S. 1981 , § 331] is to facilitate the handling and closing of estates. The legislature has considered the importance of this question in its amendment of the statute reducing the period of time within which the claim may be filed from four months to two months. Clearly this is an expression of the legislative concern for the expediting and disposing of administration of estates without delay.
. If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established or absolute, must be paid into court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over distributed as the circumstances of the state require. If any creditor whose claim has been allowed, but is not yet due, appears and assets to a deduction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly. The payments provided for in this section are not to be made when the estate is insolvent, unless a pro rata distribution is ordered. See also, 58 O.S.1981, § 611.
.This quote is from the creditor’s brief and is unchallenged by the estate.