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the common law fixes the liability on the husband. The matter is one not often covered specifically by the various acts giving separate property rights to married women, and the question as now commonly presented is whether an intent to shift the liability to the separate estate of the deceased wife is to be implied from those statutes. While the general rule that the husband is liable is maintained in the greater number of jurisdictions, the weight of more modern authority seems to favor what is in this annotation termed the "minority rule," that acts giving separate property rights to married women, construed in connection with a statute imposing generally on the estates of decedents the burden of paying funeral expenses, shift the primary burden to the estate.

Even in jurisdictions maintaining a contrary view, the effect of modern legislation has been recognized to th extent of admitting a secondary liabil.ity in the estate of a deceased wife for her funeral expenses.

II. Majority view.

17 Ind. App. 673, 47 N. E. 389; Rocap v. Blackwell (1923) Ind. App. -, 137 N. E. 726; Phillips V. Tribbey (1923) Ind. App. —, 141 N. E. 262.

Kentucky. Brand v. Brand (1901) 109 Ky. 721, 60 S. W. 704; Ketterer v. Nelson (1911) 146 Ky. 7, 37 L.R.A. (N.S.) 754, 141 S. W. 409; Long v. Beard (1898) 20 Ky. L. Rep. 1036, 48 S. W. 158. Compare Towery v. McGaw (1900) 22 Ky. L. Rep. 155, 56 S. W. 727, 982; Carpenter v.

Carpenter v. Hazelrigg (1898) 103 Ky. 538, 45 S. W. 666.

Maryland.-Willis v. Jones (1882) 57 Md. 368; Stonesifer v. Shriver (1904) 100 Md. 24, 59 Atl. 139.

Michigan.- Sears v. Giddey (1879) 41 Mich. 590, 32 Am. Rep. 168, 2 N. W. 917; Galloway v. McPherson (1887) 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. W. 114; Stone v. Tyack (1911) 164 Mich. 550, 129 N. W. 694.

New Jersey. Gould v. Moulahan (1895) 53 N. J. Eq. 341, 33 Atl. 483. See also Sullivan v. Horner (1886) 41 N. J. Eq. 299, 7 Atl. 411.

North Carolina. Bowen v. Daugherty (1915) 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161.

Pennsylvania. Waesch's Estate (1895) 166 Pa. 204, 30 Atl. 1124; Wheeler's Estate (1895) 4 Pa. Dist. R. 265; Conn's Estate (1916) 65 Pa. Super. Ct. 511; Mitchell's Estate (1922) 79 Pa. Super. Ct. 208.

Virginia.-See the reported case (HALL V. STEWART, ante, 1489).

England. Ambrose v. Kerrison (1851) 10 C. B. 776, 138 Eng. Reprint, 307, 20 L. J. C. P. N. S. 135; Gregory v. Lockyer (1821) 6 Madd. Ch. 90, 56 Eng. Reprint, 1024, 22 Revised Rep. 246; Jenkins v. Tucker (1788) 1 H. Bl. 90, 126 Eng. Reprint, 55; Willeter v. Dobie (1856) 2 Kay & J. 647, 69 Eng. Reprint, 942, 4 Week. Rep. 669; Bradshaw v. Beard (1862) 12 C. B. N. S. 344, 142 Eng. Reprint, 1175, 31 L. J. C. P. N. S. 273, 8 Jur. N. S. 1228, 6 L. T. N. S. 458.

Canada.--Re Sea (1905) 11 B. C. 324; Lumbers v. Montgomery (1911) 20 Manitoba L. R. 444, 17 West. L. R. 77. Compare Re Gibbons (1899) 31 Ont. Rep. 252.

In Stonesifer v. Shriver (Md.) supra, the court said: "But we must

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a. View stated. The doctrine obtaining in the majority of jurisdictions is that the duty of paying the funeral expenses of a married woman devolves on her husband, and that her separate estate is not liable therefor; the holding to that effect being based either wholly on the common law or on the view that the local statutes do not abrogate the common-law rule.

Alabama.-Smyley v. Reese (1875) 53 Ala. 89, 25 Am. Rep. 598.

Arkansas.-Beverly v. Nance (1920) 145 Ark. 589, 224 S. W. 956.

California. Re Weringer (1893) 100 Cal. 345, 34 Pac. 825; Brezzo V. Brangero (1921) 51 Cal. App. 79, 196 Pac. 87.

Connecticut. Staples's Appeal (1884) 52 Conn. 426.

Georgia. - Kenyon v. Brightwell (1904) 120 Ga. 606, 48 S. E. 124, 1 Ann. Cas. 169.

Illinois.-Gustin v. Bryden (1917) 205 Ill. App. 204.

Indiana.—Scott v. Carothers (1897)

no

also indicate to the orphans' court our 4 Am. St. Rep. 311, 15 N. E. 631. But views upon the chief subject of con- before that enactment, an earlier case, tention, being the allowance to the Cunningham V. Reardon (1868) 98 husband as executor for the sums paid Mass. 538, 96 Am. Dec. 670, held otherby him for his wife's medical attend- wise. In Gregory v. Lockyer (1821) 6 ance, funeral expenses, and tombstone. Madd. Ch. 90, 56 Eng. Reprint, 1024, In overruling the objections to these 22 Revised Rep. 246, such an allowance allowances, the court was in error. was made, but that decision does not The question in this state is not an seem to have been followed in Engopen one, this court having decided in land, nor to have been accepted in Willis v. Jones (Md.) supra, that “the this country except in Rhode Island husband is chargeable with funeral and Ohio. Our own Code, art. 45, $ expenses of the wife, and is bound to 20, provides that 'nothing in that artipay them, but they constitute cle shall be construed to relieve the charge upon her separate estate.' At husband from liability for necessaries common law the legal existence and for the wife, or for his or their chilidentity of the wife was merged in dren, but that as to all such cases, that of the husband who became en- his liability shall be or continue as at titled to hold and to reduce into his common law, and this reservation, we possession all her personal estate, and think, forbids us to question the decias a consequence the law cast upon sion in Willis v. Jones (Md.) supra. him the duty of supplying her with If a tombstone be regarded as part of necessaries suitable to their station a suitable burial, according to the stain life. The duty of a husband to bury tion of the parties in life, it comes dihis wife in a suitable manner is in- rectly within the principle of necesvolved in the obligation to maintain saries as applicable to ordinary funerher while living, and rests also upon al expenses.

If it cannot be so rea due regard for the decencies of life, garded, the husband in providing it and the health of the public. It has does so at the risk of objection by her been generally held, where the subject distributees, and in such a case, not has been considered by the courts of being a debt of the wife's nor in any this country, that statutes creating the manner a charge upon her estate, it wife's statutory estate do not absolve can only be regarded as a tribute, or the husband from his common-law ob- gift, by him to her memory.” ligation to provide suitable burial for In the case of Re Sea (B. C.) supra, the wife, and that he is not entitled to that court emphatically affirmed the any credit on the settlement of his ad- liability of the husband to pay the ministration of her estate for such ex- wife's funeral expenses and his inpenditures. Smyley v. Reese (1875) ability to claim reimbursement from 53 Ala. 89, 25 Am. Rep. 598; Sears v. his wife's estate. In that case it was Giddey (Mich.) supra; Staples's Ap

said: “The husband's duty to bury peal (1884) 52 Conn. 425; Re Weringer his dead wife at his own charge is (1893) 100 Cal. 345, 34 Pac. 825. neither based upon nor incidental to Rhode Island and Ohio, upon a verbal his marital proprietary right. It is construction of the language of their founded in the marital relation itself. respective statutes, hold that a hus- Its true correlative is his right to band who administers upon his wife's nominate the place of his wife's burial estate is entitled to be allowed for and to prescribe the manner of her reasonable funeral expenses.

Moul- obsequies. The Married Woman's ton v. Smith (1888) 16 R. I. 126, 27 Property Acts do not expressly or by Am. St. Rep. 728, 12 Atl. 891; McClel- necessary implication deal with this lan v. Filson (1886) 44 Ohio St. 184, obligation; nor do they affect the mar58 Am. Rep. 814, 5 N. E. 861. The riage status. I am therefore unable to present Massachusetts statute, care- agree with the view tentatively adfully framed, expressly declares the vanced by Mr. Lush in his book on husband to be so entitled. Constanti- ‘Husband & Wife' (which is also the nides v. Walsh (1888) 146 Mass. 281, view held by so distinguished a jurist as Mr. Justice Holmes respecting the Rep. 155, 56 S. W. 727, 982, in which it effect of the parallel legislation of the was held that the wife's personalty state of Massachusetts), that the re- should first be subjected to the payduction of the jus mariti effected by ment of funeral expenses, but also these acts involves the relief of the held that medical services and the care husband from the burden of this last of the wife were necessaries within act of piety and charity. Such an in- the meaning of the statute providing terpretation would, in my judgment, that the husband shall be liable for be legislative in its character. With necessaries furnished the wife. The respect to the weighty authority of Mr. holding that the wife's personalty Justice Holmes's opinion, one may ob- should be subjected to the payment serve that eminent American judges, of funeral expenses seems to have in the application of legislative enact- been based upon the ground that the ments, do permit themselves a latitude bills for medical services and care of of interpretation which a Canadian the wife had not in fact been paid court would not feel itself free to ex- by the husband, the claim therefor beercise. It is equally clear that there ing asserted by the creditors directly is no right of indemnity out of the against the wife's estate. These facts wife's estate." To the same effect, see seem to distinguish Towery 7. McGaw Re Montgomery (1911) 20 Manitoba L. from Carpenter V. Hazelrigg (Ky.) R. 444, 17 West. L. R. 77.

supra, with which it is apparently in In Ketterer v. Nelson (1911) 146 conflict, and also distinguish it from Ky. 7, 37 L.R.A.(N.S.) 754, 141 S. W. the case at bar. In Long v. Beard 409, the earlier cases in that jurisdic- (1898) 20 Ky. L. Rep. 1036, 48 S. W. tion were cited and distinguished, 158, it was held that the husband is the court saying: “Appellant's claim bound in law for the physician's bill to be reimbursed out of the proceeds and burial expenses of his deceased of the property for the wife's physi- wife, as these are obligations for cian's and nurse's bills and burial ex- which he is primarily liable. In Brand penses cannot be sustained, these v. Brand (1903) 116 Ky. 785, 63 L.R.A. items being demands in the nature of 206, 76 S. W. 868, it was held that the necessaries for the wife, for which he share of the husband in the wife's eswas primarily liable. We do not think tate may be charged with the funeral the case of Carpenter v. Hazelrigg expenses and physician's bills of the (1898) 103 Ky. 538, 45 S. W. 666, relied wife, as he is primarily liable for on by appellant, militates against this debts contracted by her, for necesconclusion. It is true the wife's phy- saries, after marriage. The opinion in sician's bill and funeral expenses Brand v. Brand is the last decision of were, in that case, ordered to be paid this court on the question under conout of the proceeds of her land, but sideration, and we adhere to the conit was because the husband had failed clusion therein expressed." to pay them. In the opinion it is said: It has been said that the rule is ‘Whilst the husband is bound in law to not altered by a statute giving marpay the necessary physician's bill for ried women the right to hold property his wife and her funeral expenses, yet and to contract as if sole, for the if the husband fail to pay them her reason that the debt being, at common estate is liable therefor. The husband law, that of the husband, the statute seems to have failed to pay them, and does not transfer the liability to her, it was not error for the court to order but merely authorizes her to assume the land sold subject to the husband's it by express contract if she chooses curtesy right to pay these expenses. to do so. Bowen v. Daugherty (1915) If the land is sold to pay them, the 168 N. C. 242, 84 S. E. 265, Ann. Cas. husband can be compelled by appro- 1917B, 1161. See to the same effect, priate proceedings to reimburse those Stonesifer v. Shriver (1904) 100 Md. to whom her estate descended. Ap- 24, 59 Atl. 139. pellant also relies upon the case of In Kenyon v. Brightwell (1904) 120 Towery v. McGaw (1900) 22 Ky. L. Ga. 606, 48 S. E. 124, 1 Ann. Cas. 169, it was held that at common law the 917; Galloway v. McPherson (1887) husband was bound to bury his de- 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. ceased wife and to defray her funeral W. 114; Stone v. Tyack (1911) 164 expenses, and that this rule prevails Mich. 550, 129 N. W. 694; Ambrose v. generally in the United States, except Kerrison (1851) 10 C. B. 776, 138 Eng. in a few states which have prescribed Reprint, 307, 20 L. J. C. P. N. S. 135. a different rule by statute; that this The foregoing rule was, in Gleason duty to pay the wife's funeral expenses v. Warner (1899) 78 Minn. 405, 81 grows out of the husband's obligation N. W. 206, applied to spouses between to provide her with necessaries of life, whom a divorce suit was pending at and out of his authority to direct the time of the wife's death. where she shall be buried; that stat- The husband, being under the duty utes creating separate estates of mar- of burying the dead body of his wife, ried women, while they deprive the is bound to pay the reasonable charges husband of rights at common law, do of the person who performs that duty not absolve him from his duties at for him. Scott v. Carothers (Ind.) common law; that this common-law supra; Stone v. Tyack (1911) 164 duty of the husband did not depend Mich. 550, 129 N. W. 694; Gleason v. solely on the principle that marriage Warner (Minn.) and Ambrose v. Kerwas a gift to the husband of the wife's rison (Eng.) supra. estate, but that it was an obligation on In Gleason v. Warner (Minn.) suthe husband to whom the wife brought pra, it was said:

"It is the right no portion, as well as on him who re- and the duty of the husband to bury ceived a fortune; that it was a conse- his deceased wife in a suitable manquence of the merger of the legal ex- ner. His wishes in the premises must istence of the wife in that of the hus- be respected, and no gratuitous inband. See to the same effect, Smyley termeddling therewith by third parties v. Reese (1875) 53 Ala. 89, 25 Am. Rep. will be encouraged. But, if the hus598.

band neglects to discharge the duty of On the same reasoning it has been burying his dead wife, he is liable to held that a statute providing that the one who provides for her necessary contract of a married woman with re- and reasonable burial. Schouler, Dom. spect to her separate property shall Rel. § 199. This liability is similar to not bind her husband does not affect the obligation of the husband to supply the husband's liability for her funeral his wife with necessaries in life; for expenses. Beverly v. Nance (1920) when dead the necessity for the speedy 145 Ark. 589, 224 S. W. 956. And see burial of her body is pressing and imthe reported case (HALL V. STEWART, perative, brooking no delay. Hence, ante, 1489).

if the husband is absent and cannot, Likewise, it has been held that a or if present and will not, discharge statute classifying debts against the this duty, the law implies a request on estate of a decedent, and making fu- his part to do so whoever reasonneral expenses a claim of the first ably performs the duty for him. It class, does not affect the rule. Gustin therefore follows that, if the finding v. Bryden (1917) 205 Ill. App. 204. See of the trial court to the effect that to the same effect, Kenyon v. Bright- the defendant was seasonably notified well (Ga.) supra; Rocap v. Blackwell of the death of his wife, and that he (1923) Ind. App. —, 137 N. E. 726; neglected to take any steps to prePhillips v. Tribbey (1923) – Ind. pare her body for burial, is sustained App. 141 N. E. 262.

by the evidence, the defendant is liaThe liability of a husband for his ble to the plaintiff for the reasonable

value of the casket and his services as wife's funeral expenses is not altered by the fact that they were living apart

an undertaker." at the time of her death. Scott v.

b. Exceptions to view. Carothers (1897) 17 Ind. App. 673, It has been held that where the 47 N. E. 389; Sears v. Giddey (1879) husband is insolvent the estate of the 41 Mich. 590, 32 Am. Rep. 168, 2 N. W. deceased wife is liable for her funeral expenses. Scott's Estate (1894) and husband, respectively, are taken 15 Pa. Co. Ct. 316. See to the same into consideration, it is reasonable 10 effect, Galloway v. McPherson (1887) do so." Accordingly, funeral expenses 67 Mich. 546, 11 Am. St. Rep. 596, 35 were allowed on the following facts: N. W. 114; Gould v. Moulahan (1895) The husband was the owner of prop53 N. J. Eq. 341, 33 Atl. 483. See also erty in his own right of the value of Carpenter v. Hazelrigg (1898) 103 Ky. $7,050; he was a joint tenant with 538, 45 S. W.666, and Towery v. McGaw his wife of certain property of the (1900) 22 Ky. L. Rep. 155, 56 S. W. 727, value of $8,000, encumbered to the 982, stated and explained in the quota- amount of $6,000, which property he tion from Katterer v. Nelson (Ky.) succeeded to and held by right of in the preceding subdivision of this survivorship on the death of his wife; annotation. The foregoing exception

the income from the property was is also applied in some of the cases about sufficient to pay the interest on supporting the general rule stated said encumbrance and taxes; he haal in the preceding subdivision. See es- borrowed money since the wife's pecially, Smyley v. Reese (1875) 53 death for his necessary living exAla. 89, 25 Am. Rep. 598; Brand v. penses, and did not have sufficient inBrand (1901) 109 Ky. 721, 60 S. W. come to pay the funeral expenses. 704; Willis v. Jones (1882) 57 Md. The rule established by the fore362; Galloway v. McPherson (1887) going cases was recognized in Brezzo 67 Mich. 546, 11 Am. St. Rep. 596, 35 v. Brangero (1921) 51 Cal. App. 79, 196 N. W. 114; Waesch's Estate (1895) Pac. 87, but, it appearing that the 166 Pa. 204, 30 Atl. 1124.

husband was financially able to pay Thus, in Gould v. Moulahan (1895) his wife's funeral expenses out of his 53 N. J. Eą. 341, 33 Atl. 483, it was own property, an allowance from her held that payment of the wife's fu- estate was refused. neral expenses devolved on the hus- In Phillips v. Tribbey (1923) band, not by virtue of any interest he

Ind. App. — 141 N. E. 262, it was held had in his wife's property, but froin

that the undertaker may, at his opthe personal advantage to him that his tion, proceed against the estate of a wife should be suitably buried; that

married woman for the recovery of while there was a primary obligation

funeral expenses, though the ultimate on the husband to pay the expenses,

liability is on the husband. The court there was a secondary obligation on

said: "By this we do not mean to her estate, and the existence of the say that an undertaker can fasten the primary obligation did not discharge ultimate liability on the estate of a the secondary obligation, and that married woman by proceeding against where, as in that case, the husband

it in the first instance. Ultimate liawas financially unable to pay the ex- bility is not a matter with which he is penses, the wife's estate was liable. concerned, but constitutes a question So, it has been said that if the hus

which may arise between the surviving band is poor, and his wife leaves a

husband and the personal representaconsiderable estate, it is proper to

tive of the decedent in a separate acallow him a reasonable sum out of the

tion, or by proper pleadings and servestate for her funeral expenses. Re

ice of process, if a claim is filed Weringer (1893) 100 Cal. 345, 34 Pac.

against the estate for such expenses. 825.

It seems clear to us that, in whatever In the case of Re Mathewson (1919) form the question may arise in this 181 Cal. 452, 184 Pac. 867, the court state, with the common law still in said that the decision in the Weringer force on the subject under consideraCase (Cal.) supra, “justities an allow- tion, as we have held, that ultimate ance to the husband, as administrator liability for the funeral expenses of of the wife's estate, of funeral ex- a deceased wife rests on the surviving penses, if, when the circumstances of husband, unless relieved therefrom by the parties, their mode of living, and some contractual or testamentary prothe amount of the estates of the wife vision. Rocap v. Blackwell (1923)

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