Breen v. Burns

• Decision Date: 13 September 1932
• Citation: 182 N.E. 294,280 Mass. 222
• Parties: BREEN v. BURNS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 222

182 N.E. 294

BREEN

v.BURNS.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 13, 1932.

Appeal from District Court of Lawrence; F. N. Chandler, Judge.

Action by John J. Breen against Mary A. Burns, administratrix of the estate of John J. Burns, deceased. There was a general finding for defendant, and a report to the appellate division was dismissed, and plaintiff appeals.

Order dismissing report affirmed.

J. J. Fox, Jr., of Lawrence, for appellant.

W. J. Delaney, of Lawrence, for appellee.

FIELD, J.

This action of contract, begun by writ dated April 22, 1931, was brought in a district court against the administratrix of the estate of John J. Burns, who died February 11, 1930, to recover for materials furnished and services rendered in connection with his funeral. The defendant's answer was a general denial, payment and the statute of limitations. At the trial liability was conceded ‘unless the claim of the plaintiff was barred by the statute of limitations as pleaded by the defendant.’ Neither party filed any requests for rulings. There was a general finding for the defendant and a report to the appellate division which was dismissed. The plaintiff appealed.

1. A question of evidence is reported. The trial judge admitted, over the objection of the plaintiff, a certified copy of an affidavit of notice of appointment of the defendant as administratrix from the probate court records.

[1] This copy was admitted rightly. By statute such an affidavit is admissible ‘as evidence of the time, place and manner in which the notice was given’ (G. L. c. 195, § 2; Leggat v. Bowker, 270 Mass. 497, 170 N. E. 451), and such evidence was material on the issue of the statute of limitations raised by the pleadings.

[2] For reasons hereinafter stated the applicable statute of limitations is G. L. c. 197, § 9, which provides that an ‘administrator, after having given due notice of his appointment, shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond * * *’ with exceptions not here material, rather than G. L. c. 260, § 11, which provides that an ‘action founded on any contract made or act done * * * by any person acting as the executor, administrator or other legal representative of the estate of a deceased person, shall be brought within one year * * * after the right of action accrues.’

It is not disputed that the materials were furnished and the services rendered at the request of the defendant, the widow of the deceased, before her appointment as administratrix of his estate. However, the ‘presumption is that funeral expenses, are incurred on the credit of the estate of the deceased’ (Rice v. New York Central & Hudson River Railroad, 195 Mass. 507, 510, 81 N. E. 285, 286), and nothing in the case overcomes this presumption. There is no evidence of an express promise by the defendant, before or after her appointment, to pay the funeral expenses of her husband, and the effect of such a promise need not be considered. See Durkin v. Langley, 167 Mass. 577, 578, 46 N. E. 119, and cases cited. Compare Joseph S. Waterman & Sons, Inc., v. Hook, 246 Mass. 522, 526, 527, 141 N. E. 596, 30 A. L. R. 440. Liability for proper funeral expenses is based ‘on its peculiar ground’ (Luscomb v. Ballard, 5 Gray, 403, 405, 66 Am. Dec. 374), that is, ‘on a promise implied by law, and arising from the necessity of the case’ (Durkin v. Langley, 167 Mass. 577, 578, 46 N. E. 119, 120;Joseph S. Waterman & Sons, Inc., v. Hook, 246 Mass. 522, 526, 141 N. E. 596, 30 A. L. R. 440). Funeral expenses for which an estate is liable may be incurred by any person-even a stranger-who is justified in intermeddling, and obviously by a widow later appointed administratrix. Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631,4 Am. St. Rep. 311;Hayes v. Gill, 226 Mass. 388, 115 N. E. 492. It has been said that the ‘law raises a promise on the part of an administrator,so far as he has assets, to pay the reasonable funeral expenses * * * although they are incurred before his appointment’ (Sweeney v. Muldoon, 139 Mass. 304, 305, 306, 31 N. E. 720,52 Am. Rep. 708), and this explanation of the liability may be of procedural importance (see Hapgood v. Houghton, 10 Pick. 154), but, in substance, the liability is imposed upon the estate by law, independent of ‘any contract made or act done’ by the administrator. The action, therefore, falls outside G. L. c. 260, § 11. Compare New York Trust Co. v. Brewster, 241 Mass. 155, 160, 134 N. E. 616.

On the other hand, the action is within G. L. c. 197, § 9. It is an ‘action by a creditor of the deceased’ within the meaning of this statute. Though the specific liability arose after the death of the deceased, it arose because of his death and his estate ‘is just as liable for the coffin and other necessary charges of the funeral, as for necessary supplies in the lifetime.’ Hapgood v. Houghton, 10 Pick. 154, 156;Kingman v. Soule, 132 Mass. 285, 289. An action for funeral expenses, except as a claim therefor is preferred (G. L. c. 198, § 1), differs in no essential particular from an action for a debt due from the deceased. In either case the action is against the estate of the deceased-though entitled as against the defendant as administrator thereof (see Yarrington v. Robinson, 141 Mass. 450, 6 N. E. 382)-and an execution runs against the ‘goods and estate’ of the deceased in the hands of the administrator, though the statute in terms applies only to executions ‘for debts due from the testator or intestate.’ Hapgood v. Houghton, 10 Pick. 154;Luscomb v. Ballard, 5 Gray, 403, 405, 66 Am. Dec. 374;Sweeney v. Muldoon, 139 Mass. 304, 306, 31 N. E. 720,52 Am. Rep. 708;G. L. c. 230, § 6. Compare St. 1783, c. 32, § 9; Rev. Sts. c. 110, § 1; Pub. Sts. 166, § 5. It was early held-under statutes limited in scope (see Stowers v. Barnard, 15 Pick. 221, 223)-that claims for funeral expenses, like debts due from the deceased, could be set off against debts due to the deceased. Adams v. Butts, 16 Pick. 343. See now G. L. c. 232, § 6. The desirability of speedy settlements of estates is the justification for the short statute of limitations of actions to recover debts due from deceased persons.There is the same justification for the limitation of actions for funeral expenses. Moreover, there is even less reason for objection on the part of a claimant for funeral expenses to the application of this statute to an action on his claim, since, unlike the ordinary creditor, he can bring suit immediately after the appointment of the administrator and is not required to wait six months before doing so. G. L. c. 197, § 1; National Bank of Troy v. Stanton, 116 Mass. 435;Studley v. Willis, 134 Mass. 155. The resemblance between the liability of an estate for the expenses of the last sickness remaining unpaid at the death of the deceased, for which, of course, he became indebted in his lifetime, and its liability for his funeral expenses (compare Hayes v. Gill, 226 Mass. 388, 390, 115 N. E. 492), is specially close. The difference between them is technical rather than substantial. They are classed together for the purpose of preference in payment where the estate is insufficient to pay all debts (G. L. c. 198, § 1), and may well be classed together under statutes of limitations. It is to be inferred from the opinion in National Bank of Troy v. Stanton, 116 Mass. 435, 438, construing Gen. Sts. c. 97, § 16 (now G. L. c. 197, § 1), which provided that no ‘administrator shall be held to answer to the suit [‘action’ in G. L. c. 197, § 1] of a creditor of the deceased, if commenced within one year [‘six months' in G. L. c. 197, § 1] after his giving bond,’ with certain exceptions, among them proceedings for the recovery of demands not affected by the insolvency of the estate, that a ‘suit’ or ‘action’ for funeral expenses, like a ‘suit’ or an ‘action’ for expenses of the last sickness of the deceased, is regarded as brought by a ‘creditor of the deceased,’ though it is excepted from the application of the statute because brought for the recovery of a demand not affected by the insolvency of the estate. See, also, Studley v. Willis, 134 Mass. 155. The words ‘action by a creditor of the deceased’ in the closely related statute, G. L. c. 197, § 9 (formerly Gen. Sts. c. 97, § 5), fixing the end of the period within which such an action shall be commenced, must be taken to have been used with the same inclusive meaning.

The defendant in her answer pleaded the limitation imposed by G. L. c. 197, § 9, in defense of the action. This is the natural import of the averment therein that ‘no suit * * * was instituted until after the expiration of one year from the date of the appointment of the administrator, and therefore the same is barred by Statute of...