Ind. App. 137 N. E. 726, supra. But, as we have indicated, this does not bar the enforcement of such claim in the manner disclosed by the finding in this action." See also Ketterer v. Nelson (1911) 146 Ky. 7, 37 L.R.A. (N.S.) 754, 141 S. W. 409.

In Re M'Myn (1886) L. R. 33 Ch. Div. (Eng.) 575, a husband who was executor of his wife's will, made under a testamentary power of appointment, was held to be entitled to retain out of her estate the amount paid by him for her funeral expenses, although the estate was insufficient to pay her creditors, and she had made no charge of debts or funeral expenses. The court said: "In Wille

ter v. Dobie (1856) 2 Kay & J. 647, 69 Eng. Reprint, 942, 4 Week. Rep. 669, it is true that there was a charge by the wife of her funeral expenses. It is also true that the law casts upon a husband the duty of burying his wife; but the law does not, on that account, cast upon the husband the burden of burying his wife at his own cost always. In most cases the husband takes all his wife's personal property by reducing it into possession during his lifetime. To call upon him to bury her out of his own money in a case like the present, where the wife exercised her power of appointment, and made the fund general assets for her creditors, but has omitted to mention her funeral expenses, would be too hard. I think, therefore, that the husband is entitled to retain the sums expended on her funeral.”

Where the wife makes provision by will for the payment of her funeral expenses out of her estate, the ultimate liability will fall on the estate rather than on the husband. Hoopes's Estate (1883) 2 Chester Co. Rep. (Pa.) 67; Wheeler's Estate (1895) 4 Pa. Dist. R. 265; Willeter v. Dobie (Eng.) supra. And see Conn's Estate (1916) 65 Pa. Super. Ct. 511.

So, in Rocap v. Blackwell (1923) Ind. App. 137 N. E. 726, it was said: "It does not necessarily follow, however, that a third person who furnished the means of support for a married woman must in every case recover his compensation from the husband 31 A.L.R.-95.

or be turned empty-handed away. By her own contract the wife may bind herself and her separate estate for the payment of the purchase price of merchandise which she procures for herself, even though the articles be necessary for her support. Indeed, a third person may furnish the necessaries of life for a married woman under various other circumstances which will give him a right to recover from someone other than the husband. Likewise, it does not necessarily follow in every case that an undertaker who renders the services and furnishes the supplies necessary for the proper burial of the lifeless body of a married woman, must recover from the surviving husband or forever go unrequited. We are not aware of any principle of law which prohibits a married woman from making, by the terms of her will, the expenses of her funeral and burial a charge upon her separate estate."

Likewise, in Beck's Estate (1910) 19 Pa. Dist. R. 620, wherein it appeared that a wife made provision for the payment of her funeral expenses out of her own estate, it was held that, although a husband is ordinarily liable for his wife's funeral expenses, he may be relieved by the will of his wife, and such a provision in her will should be construed as a legacy to the husband. The court said: "There is no doubt as to the liability of a husband for the funeral expenses of his wife, but she may (the rights of her creditors not being affected) relieve him of this liability by will, and the relief given will be treated as a legacy to the husband."

And the payment of such expense by the husband, in the first instance, will not prevent his recovery from her estate, where she has made such a provision. Hoopes's Estate (Pa.) supra.

But it has been held that, even in such a case, the husband cannot recover from the wife's estate for funeral expenses paid by him, where the effect would be to exhaust the estate and deprive other creditors of payment. Wheeler's Estate (1895) 4 Pa. Dist. R. 265.

Though the will of a wife provides

for the payment of her funeral expenses out of her estate, if the husband elects to take against the will he is liable for the funeral expenses as in case of intestacy. Mitchell's Estate (1922) 79 Pa. Super. Ct. 208. See to the same effect, Gustin v. Bryden (1917) 205 Ill. App. 204.

An order for the payment of funeral expenses out of the estate will. not be reversed where the husband is the residuary legatee of his wife, so that a requirement of payment by him would simply increase the residue to be thereafter paid to him. Rocap v. Blackwell (Ind.) supra, wherein, however, it was said: "It should be understood that we are not deciding that the effect of the will is to absolutely release the husband from his commonlaw liability. A situation might arise which would require the application of principles of equity and the enforcement of his common-law liability as between him and creditors, or as between him and other legatees."

In Gregory v. Lockyer (1821) 6 Madd. Ch. 90, 56 Eng. Reprint, 1024, 22 Revised Rep. 246, where the husband had paid his wife's funeral expenses, and claimed before the master to have the amount repaid, and a decree was entered directing the wife's separate estate to be applied to the payment of these expenses, the vice chancellor said that he considered himself bound by the decree, but expressed a doubt whether generally the husband had a right to throw the wife's funeral expenses upon her separate estate.

(1881; Sup. Ct. Sp. T.) 61 How. Pr. 399; Freeman v. Coit (1882) 27 Hun, 447; Re Smith (1896; Surr. Ct.) 18 Misc. 139, 41 N. Y. Supp. 1093; Pache v. Oppenheim (1904) 93 App. Div. 221, 87 N. Y. Supp. 704; Re Very (1898; Surr. Ct.) 24 Misc. 139, 53 N. Y. Supp. 389; Lucas v. Hessen (1885) 13 Daly, 347; Re Van De Walker (1913) 79 Misc. 661, 141 N. Y. Supp. 325; Re Stadtmuller (1905) 110 App. Div. 76, 96 N. Y. Supp. 1101; Hatton v. Cunningham (1917) 162 N. Y. S. R. 1008. Ohio. McClellan v. Filson (1886) 44 Ohio St. 184, 58 Am. Rep. 814, 5 N. E. 861.

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Rhode Island. Buxton v. Barrett (1882) 14 R. I. 40; Johnson's Petition (1887) 15 R. I. 438, 8 Atl. 248; Moulton v. Smith (1888) 16 R. I. 126, 27 Am. St. Rep. 728, 12 Atl. 891. Tennessee.-Nashville Trust Co. v. Carr (1900) Tenn., 62 S. W. 204. Washington. Smith v. Eichner (1923) 124 Wash. 575, 215 Pac. 27; Smith v. Saul (1924) Wash. - 221 Pac. 977.

Wisconsin.

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Schneider v. Breier

(1906) 129 Wis. 446, 6 L.R.A. (N.S.) 917, 109 N. W. 99. Compare Cunningham v. Reardon (1868) 98 Mass. 538, 96 Am. Dec. 670; Humphrey v. Huff (1914) 35 Ohio C. C. 117.

The rule is, in most of the cases, rested on a statute declaring in general terms that funeral expenses shall be a charge, or a preferred charge, against the estate of a decedent; these statutes being construed as applicable to the estate of a married woman who left a husband surviving. It was so held in Nashville Trust Co. v. Carr (Tenn.) supra, though the section containing the provision appeared in a chapter on insolvent estates.

In McClellan v. Filson (Ohio), supra, the court, after quoting the statute, said: "Unless there is good reason founded upon principle why the married woman's estate should be excepted, then no exception should be made. It is urged that such good reason is found in the fact that at

de

common law there is a duty upon the husband to dispose of the body of his deceased wife by decent sepulture in a suitable place. This is conceded, and it is not intended here to weaken the force of that duty, nor to impair the liability of the husband for the expense of such burial. But the husband may be without means and unable to procure the services of those whose business it is to bury the dead, though the wife leave an abundance. What shall be done in such case? Shall the body remain unburied? If in such circumstances it is proposed to resort to the wife's estate for such expenses it must be upon some principle, some rule. What shall it be? We have seen that the law of contract does not aid. She cannot, any more than could a ceased husband as to his funeral expenses, be presumed to have contracted. Plainly, then, it must be by the force of legislation. That we have, and if we apply it in any case to the estate of a deceased married woman, it is difficult to see why, upon principle, it should not be applied to all. If we undertake to make arbitrary exceptions and distinctions, then the rule fails; for if it cannot rest upon the doctrine of a statutory debt, and charge upon the estate, it is not easy to find satisfactory foundation for it. Besides, if the application of the statute be limited to cases where the husband is insolvent, then we impose upon the one who spends time and money upon the conduct of the funeral the burden of first exhausting the liability of the husband by suit, or at least demonstrating his insolvency. A decent regard for the proprieties of the situation would seem not to require this."

In McCue v. Garvey (1878) 14 Hun (N. Y.) 562, it was held that the funeral expenses of a dead person were primarily chargeable to that person's estate; that though the husband was bound to bury his deceased wife, and was probably liable for the expenses of burial, still the estate of the deceased wife was finally liable therefor. In Freeman v. Coit (1882) 27 Hun (N. Y.) 447, it was held that in

New York state, where the expenditures for the burial of the wife had been made by the husband, and the wife left a separate estate, the husband was entitled to be reimbursed therefor from such estate. In Pache v. Oppenheim (1904) 93 App. Div. 221, 87 N. Y. Supp. 704, the common-law obligation of the husband to bury his wife was sustained, but it was held that under the authorities in that state the estate left by the wife was primarily liable therefor, and a husband who had paid such reasonable expenses might recover from his wife's estate.

The rule that the wife's separate esstate is primarily liable for her funeral expenses was emphatically laid down in the case of Re Skillman (1910) 146 Iowa, 601, 140 Am. St. Rep. 295, 125 N. W. 343, wherein the court, in reviewing some of the earlier decisions touching the question, said: "While in England the law cast on the husband the duty of burying his deceased wife, this was not always at his own expense. In Re M'Myn (1886) L. R. 33 Ch. Div. (Eng.) 575, 55 L. J. Ch. N. S. 845, 55 L. T. N. S. 834, 35 Week. Rep. 179, the wife was engaged in a separate business, and by the will left her husband a legacy and named him as executor, but made no provision for funeral expenses. The court, speaking through Chitty, J., said that in 'most cases, the husband takes all his wife's personal property by reducing it into possession during his lifetime. To call upon him out of his own moneys in a case like the present, where the wife exercised the power of appointment and made the fund general assets for her creditors, but has omitted to mention her funeral expenses, would be too hard. I think, therefore, the husband is entitled to retain the sums expended for her funeral.' This would seem to hold that the interest of the husband in the wife's property may have had something to do in fixing the husband's liability, but in Gould v. Moulahan (1895) 53 N. J. Eq. 341, 33 Atl. 483, wherein the court held the wife's estate liable for funeral expenses where the husband was unable

to pay, said: 'His liability for the expense of the interment does not arise in virtue of any interest he may have in the wife's property, but from the personal advantage it is to himself to have those personæ conjunctæ with him, his wife and lawful children, properly maintained during life and suitably buried at death.' In Moulton v. Smith (1888) 16 R. I. 126, 27 Am. St. Rep. 728, 12 Atl. 891, the husband was administrator of his deceased wife's estate, and as such paid the expenses of funeral and last sickness. Upon his death, the administrator of his estate presented a claim therefor and expenses of administration, and the court held that though the husband was entitled to settle the estate as if no such relation existed, and, if he so elected, to pay therefor from the funds of the estate, but as she might not contract a debt, being covert, for physician's services, claim therefor was held not allowable. In Towery v. McGaw (1900) 22 Ky. L. Rep. 155, 56 S. W. 727, 982, the husband as administrator was allowed a credit for moneys paid out of his wife's estate for funeral expenses, but the hospital expenses of her last sickness were held to be 'necessaries' within the statute of the state, for which he was liable, and not a proper credit. These decisions were independent of statutory provisions like those of this state, but in Constantinides v. Walsh (1888) 146 Mass. 281, 4 Am. St. Rep. 311, 15 N. E. 631, the precise question before us was under consideration. The wife had died possessed of a separate estate and left a will naming her son executor. The husband, without knowing this, paid for her necessary funeral expenses, and his claim against her estate therefor was allowed. The statutes of Massachusetts, though in different language, are in substance like those of this state in directing that 'when a person dies possessed of personal estate, the necessary expenses of his funeral and last sickness and charges of administration' be first paid, and the court, speaking through Holmes, J., said: "The funeral expenses of the testatrix were a preferred charge upon her estate. Pub.

Stat. chap. 135, § 3, chap. 137, § 1; Stat. 1882, chap. 141. Under these statutes, those establishing the independent position of married women with regard to their property, we think, 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 the 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. There is no technical difficulty in a husband's imposing a liability upon his wife's executor after her death. It was 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 would have done. A stranger could have recovered against the estate of a man, if he was justified in intermeddling. . . The legislative design in enacting the statute quoted 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 intended merely to declare a preference as between claims against the estate. As seen, it may be deemed the basis for the allowance of such expenses, and 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