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 the extent of admitting a secondary liability in the estate of a deceased wife for her funeral expenses.

II. Majority view.

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 de 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.

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. 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.

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

also indicate to the orphans' court our views upon the chief subject of contention, being the allowance to the husband as executor for the sums paid by him for his wife's medical attendance, funeral expenses, and tombstone. In overruling the objections to these allowances, the court was in error. The question in this state is not an open one, this court having decided in Willis v. Jones (Md.) supra, that 'the husband is chargeable with funeral expenses of the wife, and is bound to pay them, but they constitute no charge upon her separate estate.' At common law the legal existence and identity of the wife was merged in that of the husband who became entitled to hold and to reduce into his possession all her personal estate, and as a consequence the law cast upon him the duty of supplying her with necessaries suitable to their station in life. The duty of a husband to bury his wife in a suitable manner is involved in the obligation to maintain her while living, and rests also upon a due regard for the decencies of life, and the health of the public. It has been generally held, where the subject has been considered by the courts of this country, that statutes creating the wife's statutory estate do not absolve the husband from his common-law obligation to provide suitable burial for the wife, and that he is not entitled to any credit on the settlement of his administration of her estate for such expenditures. Smyley v. Reese (1875) 53 Ala. 89, 25 Am. Rep. 398; Sears v. Giddey (Mich.) supra; Staples's Appeal (1884) 52 Conn. 425; Re Weringer (1893) 100 Cal. 345, 34 Pac. 825. Rhode Island and Ohio, upon a verbal construction of the language of their respective statutes, hold that a husband who administers upon his wife's estate is entitled to be allowed for reasonable funeral expenses. Moulton v. Smith (1888) 16 R. I. 126, 27 Am. St. Rep. 728, 12 Atl. 891; McClellan v. Filson (1886) 44 Ohio St. 184, 58 Am. Rep. 814, 5 N. E. 861. The present Massachusetts statute, carefully framed, expressly declares the husband to be so entitled. Constantinides v. Walsh (1888) 146 Mass. 281,

4 Am. St. Rep. 311, 15 N. E. 631. But before that enactment, an earlier case, Cunningham v. Reardon (1868) 98 Mass. 538, 96 Am. Dec. 670, held otherwise. In Gregory v. Lockyer (1821) 6 Madd. Ch. 90, 56 Eng. Reprint, 1024, 22 Revised Rep. 246, such an allowance was made, but that decision does not seem to have been followed in England, nor to have been accepted in this country except in Rhode Island and Ohio. Our own Code, art. 45, § 20, provides that 'nothing in that article shall be construed to relieve the husband from liability for necessaries for the wife, or for his or their children, but that as to all such cases, his liability shall be or continue as at common law,' and this reservation, we think, forbids us to question the decision in Willis v. Jones (Md.) supra. If a tombstone be regarded as part of a suitable burial, according to the station of the parties in life, it comes directly within the principle of necessaries as applicable to ordinary funeral expenses. If it cannot be so regarded, the husband in providing it does so at the risk of objection by her distributees, and in such a case, not being a debt of the wife's nor in any manner a charge upon her estate, it can only be regarded as a tribute, or gift, by him to her memory."

In the case of Re Sea (B. C.) supra, that court emphatically affirmed the liability of the husband to pay the wife's funeral expenses and his inability to claim reimbursement from his wife's estate. In that case it was said: "The husband's duty to bury his dead wife at his own charge is neither based upon nor incidental to his marital proprietary right. It is founded in the marital relation itself. Its true correlative is his right to nominate the place of his wife's burial and to prescribe the manner of her obsequies. The Married Woman's Property Acts do not expressly or by necessary implication deal with this obligation; nor do they affect the marriage status. I am therefore unable to agree with the view tentatively advanced by Mr. Lush in his book on 'Husband & Wife' (which is also the view held by so distinguished a jurist

as Mr. Justice Holmes respecting the effect of the parallel legislation of the state of Massachusetts), that the reduction of the jus mariti effected by these acts involves the relief of the husband from the burden of this last act of piety and charity. Such an interpretation would, in my judgment, be legislative in its character. With respect to the weighty authority of Mr. Justice Holmes's opinion, one may observe that eminent American judges, in the application of legislative enactments, do permit themselves a latitude of interpretation which a Canadian court would not feel itself free to exercise. It is equally clear that there is no right of indemnity out of the wife's estate." To the same effect, see Re Montgomery (1911) 20 Manitoba L. R. 444, 17 West. L. R. 77.

In Ketterer v. Nelson (1911) 146 Ky. 7, 37 L.R.A. (N.S.) 754, 141 S. W. 409, the earlier cases in that jurisdiction were cited and distinguished, the court saying: "Appellant's claim to be reimbursed out of the proceeds of the property for the wife's physician's and nurse's bills and burial expenses cannot be sustained, these items being demands in the nature of necessaries for the wife, for which he was primarily liable. We do not think the case of Carpenter v. Hazelrigg (1898) 103 Ky. 538, 45 S. W. 666, relied on by appellant, militates against this. conclusion. It is true the wife's physician's bill and funeral expenses were, in that case, ordered to be paid out of the proceeds of her land, but it was because the husband had failed to pay them. In the opinion it is said: 'Whilst the husband is bound in law to pay the necessary physician's bill for his wife and her funeral expenses, yet if the husband fail to pay them her estate is liable therefor. The husband seems to have failed to pay them, and it was not error for the court to order the land sold subject to the husband's curtesy right to pay these expenses. If the land is sold to pay them, the husband can be compelled by appropriate proceedings to reimburse those to whom her estate descended.' Appellant also relies upon the case of Towery v. McGaw (1900) 22 Ky. L.

The

Rep. 155, 56 S. W. 727, 982, in which it was held that the wife's personalty should first be subjected to the payment of funeral expenses, but also held that medical services and the care of the wife were necessaries within the meaning of the statute providing that the husband shall be liable for necessaries furnished the wife. holding that the wife's personalty should be subjected to the payment of funeral expenses seems to have been based upon the ground that the bills for medical services and care of the wife had not in fact been paid by the husband, the claim therefor being asserted by the creditors directly against the wife's estate. These facts seem to distinguish Towery v. McGaw from Carpenter v. Hazelrigg (Ky.) supra, with which it is apparently in conflict, and also distinguish it from the case at bar. In Long v. Beard (1898) 20 Ky. L. Rep. 1036, 48 S. W. 158, it was held that the husband is bound in law for the physician's bill and burial expenses of his deceased wife, as these are obligations for which he is primarily liable. In Brand v. Brand (1903) 116 Ky. 785, 63 L.R.A. 206, 76 S. W. 868, it was held that the share of the husband in the wife's estate may be charged with the funeral expenses and physician's bills of the wife, as he is primarily liable for debts contracted by her, for necessaries, after marriage. The opinion in Brand v. Brand is the last decision of this court on the question under consideration, and we adhere to the conclusion therein expressed."

It has been said that the rule is not altered by a statute giving married women the right to hold property and to contract as if sole, for the reason that the debt being, at common law, that of the husband, the statute does not transfer the liability to her, but merely authorizes her to assume it by express contract if she chooses to do so. Bowen v. Daugherty (1915) 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161. See to the same effect, Stonesifer v. Shriver (1904) 100 Md. 24, 59 Atl. 139.

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

it was held that at common law the husband was bound to bury his deceased wife and to defray her funeral expenses, and that this rule prevails generally in the United States, except in a few states which have prescribed a different rule by statute; that this duty to pay the wife's funeral expenses grows out of the husband's obligation to provide her with necessaries of life, and out of his authority to direct where she shall be buried; that statutes creating separate estates of married women, while they deprive the husband of rights at common law, do not absolve him from his duties at common law; that this common-law duty of the husband did not depend solely on the principle that marriage was a gift to the husband of the wife's estate, but that it was an obligation on the husband to whom the wife brought no portion, as well as on him who received a fortune; that it was a consequence of the merger of the legal existence of the wife in that of the husband. See to the same effect, Smyley v. Reese (1875) 53 Ala. 89, 25 Am. Rep. 598.

On the same reasoning it has been held that a statute providing that the contract of a married woman with respect to her separate property shall not bind her husband does not affect the husband's liability for her funeral expenses. Beverly v. Nance (1920) 145 Ark. 589, 224 S. W. 956. And see the reported case (HALL v. STEWART, ante, 1489).

Likewise, it has been held that a statute classifying debts against the estate of a decedent, and making funeral expenses a claim of the first class, does not affect the rule. Gustin v. Bryden (1917) 205 Ill. App. 204. See to the same effect, Kenyon v. Brightwell (Ga.) supra; Rocap v. Blackwell (1923) Ind. App. -, 137 N. E. 726; Phillips v. Tribbey (1923) - Ind. App., 141 N. E. 262.

The liability of a husband for his wife's funeral expenses is not altered by the fact that they were living apart at the time of her death. Scott v. Carothers (1897) 17 Ind. App. 673, 47 N. E. 389; 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; Ambrose v. Kerrison (1851) 10 C. B. 776, 138 Eng. Reprint, 307, 20 L. J. C. P. N. S. 135. The foregoing rule was, in Gleason v. Warner (1899) 78 Minn. 405, 81 N. W. 206, applied to spouses between whom a divorce suit was pending at the time of the wife's death.

The husband, being under the duty of burying the dead body of his wife, is bound to pay the reasonable charges of the person who performs that duty for him. Scott v. Carothers (Ind.) supra; Stone v. Tyack (1911) 164 Mich. 550, 129 N. W. 694; Gleason v. Warner (Minn.) and Ambrose v. Kerrison (Eng.) supra.

In Gleason v. Warner (Minn.) supra, it was said: "It is the right and the duty of the husband to bury his deceased wife in a suitable manner. His wishes in the premises must be respected, and no gratuitous intermeddling therewith by third parties will be encouraged. But, if the husband neglects to discharge the duty of burying his dead wife, he is liable to one who provides for her necessary and reasonable burial. Schouler, Dom. Rel. § 199. This liability is similar to the obligation of the husband to supply his wife with necessaries in life; for when dead the necessity for the speedy burial of her body is pressing and imperative, brooking no delay. Hence, if the husband is absent and cannot, or if present and will not, discharge this duty, the law implies a request on his part to do so whoever reasonably performs the duty for him. It therefore follows that, if the finding of the trial court to the effect that the defendant was seasonably notified of the death of his wife, and that he neglected to take any steps to prepare her body for burial, is sustained by the evidence, the defendant is liable to the plaintiff for the reasonable value of the casket and his services as an undertaker."

b. Exceptions to view. It has been held that where the husband is insolvent the estate of the deceased wife is liable for her fu

neral expenses. Scott's Estate (1894) 15 Pa. Co. Ct. 316. See to the same effect, Galloway v. McPherson (1887) 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. W. 114; Gould v. Moulahan (1895) 53 N. J. Eq. 341, 33 Atl. 483. See also Carpenter v. Hazelrigg (1898) 103 Ky. 538, 45 S. W. 666, and Towery v. McGaw (1900) 22 Ky. L. Rep. 155, 56 S. W. 727, 982, stated and explained in the quotation from Katterer v. Nelson (Ky.) in the preceding subdivision of this annotation. The foregoing exception is also applied in some of the cases supporting the general rule stated in the preceding subdivision. See especially, Smyley v. Reese (1875) 53 Ala. 89, 25 Am. Rep. 598; Brand v. Brand (1901) 109 Ky. 721, 60 S. W. 704; Willis v. Jones (1882) 57 Md. 362; Galloway v. McPherson (1887) 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. W. 114; Waesch's Estate (1895) 166 Pa. 204, 30 Atl. 1124.

Thus, in Gould v. Moulahan (1895) 53 N. J. Eq. 341, 33 Atl. 483, it was held that payment of the wife's funeral expenses devolved on the husband, not by virtue of any interest he had in his wife's property, but froin the personal advantage to him that his wife should be suitably buried; that while there was a primary obligation on the husband to pay the expenses, there was a secondary obligation on her estate, and the existence of the primary obligation did not discharge the secondary obligation, and that where, as in that case, the husband was financially unable to pay the expenses, the wife's estate was liable.

So, it has been said that if the husband is poor, and his wife leaves a considerable estate, it is proper to allow him a reasonable sum out of the estate for her funeral expenses. Re Weringer (1893) 100 Cal. 345, 34 Pac. 825.

In the case of Re Mathewson (1919) 181 Cal. 452, 184 Pac. 867, the court said that the decision in the Weringer Case (Cal.) supra, "justifies an allowance to the husband, as administrator of the wife's estate, of funeral expenses, if, when the circumstances of the parties, their mode of living, and the amount of the estates of the wife

and husband, respectively, are taken into consideration, it is reasonable to do so." Accordingly, funeral expenses were allowed on the following facts: The husband was the owner of property in his own right of the value of $7,050; he was a joint tenant with his wife of certain property of the value of $8,000, encumbered to the amount of $6,000, which property he succeeded to and held by right of survivorship on the death of his wife; the income from the property was about sufficient to pay the interest on said encumbrance and taxes; he had borrowed money since the wife's death for his necessary living expenses, and did not have sufficient income to pay the funeral expenses.

The rule established by the foregoing cases was recognized in Brezzo v. Brangero (1921) 51 Cal. App. 79, 196 Pac. 87, but, it appearing that the husband was financially able to pay his wife's funeral expenses out of his own property, an allowance from her estate was refused.

In Phillips v. Tribbey (1923) Ind. App. —, 141 N. E. 262, it was held that the undertaker may, at his option, proceed against the estate of a married woman for the recovery of funeral expenses, though the ultimate liability is on the husband. The court said: "By this we do not mean to say that an undertaker can fasten the ultimate liability on the estate of a married woman by proceeding against it in the first instance. Ultimate liability is not a matter with which he is concerned, but constitutes a question which may arise between the surviving husband and the personal representative of the decedent in a separate action, or by proper pleadings and service of process, if a claim is filed against the estate for such expenses. It seems clear to us that, in whatever form the question may arise in this state, with the common law still in force on the subject under consideration, as we have held, that ultimate liability for the funeral expenses of a deceased wife rests on the surviving husband, unless relieved therefrom by some contractual or testamentary provision. Rocap v. Blackwell (1923)