rendering service as nurse to the decedent, at his request or the request of some member of his immediate family, not exceeding the same amount, for services rendered during the same period; and accounts of hospitals and sanitariums, not exceeding the same amount, for articles furnished and services rendered during the same period." (Italics supplied.)

It is a familiar rule of construction supported by authority and reason, that common words are to be extended to all the objects which, in their usual acceptance, they describe and denote. The language of the statute (§ 5390, supra) is so plain and unequivocal as not to be susceptible of more than one construction. It contains no exception, and clearly contemplates and includes all decedents who die leaving assets, without regard to their race or sex, whether married or single. To hold that the statute does not apply to the estate of a married woman might, where the husband was hopelessly insolvent, leave her body upon the charity of some friend or the public, and, even though she left a large estate, deprive her of a funeral and burial such as are usually accorded persons of her station and condition in life. Such a situation would offend a benevolent public sentiment.

The declaration in the majority opinion that, because § 5264 of the Code, by which the undivided onehalf interest in the house and lot passed to Mrs. Stewart's father, makes no mention of costs of administration, funeral expenses, or surplus after the payment of these items, what passes under § 5138 is not a surplus, but the whole of the decedent's estate, "subject to her debts," cannot be sustained, when these sections are construed, as they should be, in the light of §§ 5273 and 5395, Code 1919.

Under § 5395, Code 1919, all real estate of any person, as to which he may die intestate, is made assets for the payment of the decedent's debts and all lawful demands against his

estate, in the order in which the personal estate of a decedent is directed to be applied. There can be no question that this statute applies to the real estate of married women, as the term "any person" necessarily includes women. This section is in no way qualified by § 5138, Code 1919. And it cannot be said that the funeral expenses of a married woman are never a "lawful demand" against her estate.

The statute (Code 1919, § 5273) provides as follows: "When any person shall die intestate as to his personal estate or any part thereof, the surplus, .. . after payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons, ." etc. (Italics supplied.)

Section 5138 of chapter 207 provides that "when a married woman having title to any estate, dies intestate, as to the said estate, or any part thereof, it, or such part, shall pass according to the provisions of chapter two hundred and thirteen, subject to her debts, and to the curtesy of, her husband should he survive her." (Italics supplied.)

Chapter 213 contains § 5273, supra, which provides that the surplus, after the payment of funeral expenses, charges of administration and debts, shall pass to and be distributed among the heirs of the decedent. It follows that § 5273 and § 5395, supra, supersede § 5138, to the extent that there can be no distribution of even the surplus of the estate, whether derived from the sale of personal or real property, until after the payment not only of the debts, but also of the funeral expenses and charges of administration.

The Married Woman's Act is invoked by the majority opinion to sustain the position that a married woman's estate cannot be required to reimburse her husband, for the amount expended by him in her funeral expenses, because it provides that the property of the wife shall

"not be subject to the debts or liabilities of the husband." This act became a law on April 4, 1877, and was amended by an act approved March 7, 1900. Section 5390 was amended and re-enacted by an act approved December 12, 1903. Wherever there is any conflict between two statutes, the last enactment prevails.

In construing a statute, the court should be alert to construe it in the light of new circumstances and conditions in the progress of the state and its laws. The provisions of § 5390 should not be construed in the light of the ancient common law, by which a married woman could not contract, nor by the common law as modified by the courts of equity, but rather in the light of recent constitutional and legislative enactments, by which she is given practically every personal and property right enjoyed by men. When so construed, it seems to me clear, as will hereinafter appear, that under § 5390, supra, the estate of a married woman is liable for her funeral expenses, even though under the common-law rule the husband is still liable to the party actually providing a suitable burial for his wife. When her estate pays her funeral expenses to the husband, it is in discharge of a liability against her estate, and not of his debt or liability.

The liability of a married woman's estate for her burial expenses does not rest upon contract, but upon an obligation created by statute based upon necessity and made a charge upon the estate, just as the necessary expenses of administration are made a charge thereon. The burial of the dead is a matter of public health and public necessity.

A husband is bound to support his wife. This is his legal duty, independent of any separate estate which she may possess. Mihalcoe v. Holub, 130 Va. 429, 107 S. E. 704. To parties who furnish attention to a wife during her last illness, and provide suitable burial for her, the husband is still liable, as at common law, notwithstanding the Married.

Woman's Act, for the services rendered in that behalf. But the statute (§ 5390) creates a first lien on the estate of the wife for the payment of her funeral expenses, regardless of who incurred these expenses. Section 5273, supra, does not authorize the court, or the personal representative, to pay to the heirs of the decedent the money necessary to defray the funeral expenses, charges of administration, and debts, nor does it pass to the heirs under the statute; and the husband, having paid the same, may recover the amount from her estate. Briefly expressed, the parties furnishing the services in question may look to the wife's estate or the husband, or both, for payment of the amounts due them. As between the husband and her distributees and heirs, who claim the wife's separate estate at her death, her separate estate is primarily liable.

The question we are deciding is of first impression in Virginia, but has been passed upon in several other states. In those jurisdictions the authorities are in conflict. The better reason and weight of authority are in accord with the trend of recent legislation and with the views I have herein expressed.

The majority opinion admits that there is authority in several jurisdictions to support my contention that, as between the estate of a married woman and her husband, the liability of her estate for her burial expenses is primary, though it is still his duty to see that his wife is buried, and that, if he pays her funeral expenses, he is entitled to recover his reasonable expenditures, as in other cases when a person has paid, in pursuance of a legal duty, which, as between himself and another, that other was bound to pay. Notwithstanding this admission, the opinion follows another line of authorities, and, harking back to the rigid rules of the common law, places a construction upon § 5390 which, as it seems to me, destroys the true intent and meaning thereof. In Bowen v. Daugherty, 168 N. C.

242, 84 S. E. 265, Ann. Cas. 1917B, 1161, relied on with so much confidence by the appellant, involving the payment of the wife's funeral and burial expenses, tombstone, doctor's bills, and nursing during last illness, Judge Hoke, speaking for the majority of the court, said: "We are aware of a number of decisions, and by courts of eminent ability and learning, to the effect that the estate of the deceased wife is primarily liable on claims of this kind by reason of their statutes as to the proper administration of estates, and which provide, in differing terms, that debts for funeral expenses, medical bills, and services within a stated period, etc., shall be paid," etc., out of the wife's estate, citing the cases relied on in this opinion.

Judge Hoke then adds: "It may be that, owing to special phraseology of these statutes, a position of that kind can be upheld, but, so far as our own enactment is concerned (Revisal 1905, § 87), we do not hesitate to hold that the statute is only designed to recognize priorities and to establish the order of payment as between claimants who have valid debts against the estate." (Italics supplied.)

The North Carolina statute, § 87, supra, reads as follows:

"87. Order of payment.-The debts of the decedent must be paid in the following order:

"First class. Debts which by law have a specific lien on property to an amount not exceeding the value of such property.

"Second class. Funeral expenses. "Third class. Taxes assessed on the estate of the deceased previous to his death.

"Fourth class. Dues to the United States and to the state of North Carolina.

"Fifth class. Judgments of any court of competent jurisdiction within this state, docketed and in force, to the extent to which they are a lien on the property of the deceased at his death.

"Sixth class. Wages due to any domestic servant or mechanical or

North Carolina has no statute similar to § 5273, supra. Her statute on the distribution of personal estates of decedents (Revisal 1905, § 132) simply provides that "the surplus of the estate, in case of intestacy, shall be distributed in the following manner," etc., without stating of what the surplus consists. Had the North Carolina statutes contained the identical language of the Virginia statutes, supra, I think it can be inferred that Judge Hoke's conclusions would have been in accord with the views expressed in this opinion.

Some of the cases relied on by the plaintiffs in error are less in point than Bowen v. Daugherty, supra, and, in view of the language of the Virginia statute, to none of the cases relied on by them should we attach much weight in disposing of the questions involved in the instant

case.

In Schneider v. Breier, 129 Wis. 446, 6 L.R.A. (N.S.) 917, 109 N. W. 99, the Wisconsin supreme court says: "It seems to be well settled that estates of deceased persons are liable for funeral expenses such as like rank and condition in society (2) are usually adopted for persons of Woerner, Administration, §§ 357, 359; Schouler, Exrs. 3d ed. § 421); and this rule applies to married women leaving separate estates to be administered. . . . The liability of the estates in such cases does not rest upon contract relation, but upon a charge which the law imposes upon the estate."

A suitable tombstone for the grave of the deceased would be re

garded as a part of the burial expenses in such cases.

In 21 Cyc. at page 1449, we find the law stated thus: "The weight of authority, nevertheless, under the Married Women's Acts, holds that the estate of the wife who dies leaving separate property is primarily liable for her funeral expenses, and that the husband, having paid the same, may recover from such estate" -citing cases from Ohio, Massachusetts, New York, Rhode Island, and Canada.

In Morrissey v. Mulhern, 168 Mass. 412, 47 N. E. 407, the supreme court of Massachusetts says: "The estate of a married woman" who died leaving property "is primarily liable for her funeral expenses," and her husband who paid them "may recover them from her executor."

In Re Stadtmuller, 110 App. Div. 76, 96 N. Y. Supp. 1101, the New York court declared the law to be that "the separate estate of a wife is liable for her funeral expenses to the estate of her husband, who died after her, though he assumed and paid them without expectation of reimbursement from her estate; he neither having done any positive act indicating an intent to make a gift of the money to her estate, nor having actually released such estate, and he having died before his claim against her estate was barred."

In the case of Constantinides v. Walsh, 146 Mass. 281, 4 Am. St. Rep. 311, 15 N. E. 631, the supreme judicial court of Massachusetts says: "The funeral expenses of the testatrix were a preferred charge upon her estate. Under these statutes [those making such debts preferred charges] and those establishing the independent position of married women with regard to their property, we think that, as between the estate of a married woman leaving property and her husband, the liability of the estate must be regarded as primary, and that it would be unreasonable to charge the husband for funeral expenses, in all events, as necessaries, irrespective of any fault on his part. If then it

was still, as formerly, the plaintiff's legal duty to see that his wife was buried, but her estate was primarily liable, he is entitled to recover his reasonable expenditures, as in other cases when a person has paid in pursuance of a legal duty what, as between himself and another, that other was bound to pay. . . If it was not the plaintiff's legal duty to do what he did, nevertheless we are of opinion that he stood on no worse ground than a stranger. . Undoubtedly he [a stranger] could now recover against her estate. so, the husband can."

If

In Re Skillman, 146 Iowa, 601, 140 Am. St. Rep. 295, 125 N. W. 343, a case very similar to the case in judgment, the Iowa supreme court declared the law as follows: "The statute quoted [making such expenses charges on the estate of the deceased] makes it obligatory on executors and administrators of estates having sufficient means to meet both the charges of the last sickness and of the funeral of a deceased person. Neither necessarily depends on the contract of deceased or others, but may rest on this statute. While the expenses of last sickness differ from those of funeral in that they are rendered during the life of the person on whose estate they are made a charge, the necessity for their rendition is similar to the latter, and the law authorizing their payment may be justified on like principles. The legislative design in enacting the statute . . . was to assure to every person care in his last sickness and appropriate burial, by declaring the charges therefor preferred claims, and exacting their payment as soon as funds enough to satisfy them come into the possession of his personal representative. It is mandatory in form. It contains no discrimination as between creditors to whom such charges may be owing. And the duty to pay is declared independently of any obligation which may exist on the part of others. Its language obviates the inference otherwise to be drawn, that it was intend

ed merely to declare a preference as between claims against the estate.

We are of the opinion that the legislative intent was to impose on the estate of every deceased person a primary liability for the charges of the last sickness and funeral. If so, the obligation of either husband or wife therefor is secondary thereto in character, and, in event of payment by either, such charges may be established as claims against the estate of the deceased. This construction is not only reasonable, but is well calculated . . . to protect the property of the one against the unseemly efforts of the heirs.. of the other to evade the satisfaction of the reasonable charges of the last sickness and funeral from the estate of the decedent under whom they take."

In Re Stadtmuller, supra, the court also made this statement: "A short time after the death of his wife, Mr. Lea sent for several parties who had claims and requested them to present their bills. They were paid on the 15th of August, 1902. George Lea paid the physician who attended his wife during her last illness the sum of $248.50, one Maxiner for flowers furnished at her funeral $80.50, and one Collier, an undertaker, who had charge of her funeral, $281. The administratrix with the will annexed, etc., of George Lea, claims to recover these sums from the estate of his wife. The surrogate, however, rejected these claims, and the administratrix of the husband's estate appeals from the decree. That the items paid Collier and Maxiner are legitimate funeral expenses cannot be doubted. It is equally

clear that, where the wife leaves a separate estate, although a surviving husband is under a legal obligation to bury the body of his wife, her estate is liable to the charge. The point made by the respondents that because George Lea assumed these claims without the expectation of being reimbursed from the estate of his deceased wife can have no force. Unless he did some positive act indicative of an intent to make a gift of such moneys to the estate, or actually released the wife's estate, no legal impediment existed to prevent his claiming reimbursement."

The rule of the common law requiring the husband to maintain and support his wife, independent of any separate estate possessed by her, was for her comfort and protection, and I have said nothing which relieves the husband of this duty, at the wife's expense; for at her death the question, in its last analysis, is not whether the wife shall pay .a. debt which her husband ought to pay, but whether the court or the personal representative shall distribute among her heirs, as surplus, money which the Virginia statute says shall be used in the payment of her funeral expenses and charges of administration.

For the foregoing reasons, so much of the decree complained of as directs the payment to the appellee, C. W. Stewart, of the sum of $245 for the expenses of the burial of his wife, Minnie B. Stewart, in my opinion, is plainly right and should be affirmed.

Prentis, J., concurs in this dissent.