Constantinides v. Walsh

• Decision Date: 02 March 1888
• Citation: 146 Mass. 281,15 N.E. 631
• Parties: CONSTANTINIDES v. WALSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 281

15 N.E. 631

CONSTANTINIDES v. WALSH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1888

COUNSEL

J.A. Maxwell, for plaintiff.

The defendant will contend that the law made it the duty of the plaintiff to bury his deceased wife; that when, therefore, he paid the undertaker's bills, he extinguished his own debt, and cannot legally be reimbursed out of the assets of her estate. It seems, however, that the statutes of distribution in this commonwealth, commencing with the statute of 1803, have made it primarily the duty of the administrator to pay the funeral expenses of the deceased and the duty of the surviving husband or surviving wife became secondary. If the earlier statutes did not relieve the husband as against the administrator of his wife's estate, it is certain that the statute 1882, c. 141, did give him such relief. Under that statute it is the duty of the administrator to pay one-half the residue of the estate to the husband, and the residue is what remains after payment of debts, funeral expenses, and charges of administration. If the husband is himself administrator, he credits himself in his final account as administrator with the amount of the undertaker's bill. Such is the practice in our probate courts. It may be said that in the case at bar the plaintiff paid as surviving husband, and not as administrator. Not so; when he contracted and when he paid the bill he had no knowledge of the existence of the will, and, so far as he knew, had a right to administer on the estate. He therefore paid as administrator expectant, or as executor in his own wrong, and as such he is protected by statute against the true executor or administrator, to the extent of his payments for debts, funeral expenses, and other charges. Pub.St. 132, § 18. We suppose that Pub.St. c. 137 "Insolvent Estates of Deceased Persons," includes estates of deceased wives, and section 1 makes such estates subject to the payment of funeral expenses. If this plaintiff's wife's estate had been represented insolvent, he could have proved his claim in insolvency. Savage v. Winchester, 15 Gray, 453. Our view that the duty of the administrator is primary, and that of the husband secondary, is (1) in accord with the statutes. (2) It is in accordance with justice and equity, that the funeral expenses of the wife should be paid out of her estate. (3) it is in accordance with the policy of our legislature, which has been "to enlarge the rights and liabilities of married women as to property, and to impair the unity and identity of interest between husband and wife which existed at common law. As the laws have destroyed this unity, the incidents or consequences of the unity ought not to continue to operate." MORTON, C.J., in Butler v. Ives, 139 Mass. 202, see page 204. (4) If the contrary view is held by this court, impecunious husbands will be unable, and stingy husbands unwilling, to give their dead wives proper funeral rites. (5) The view we contend for is in accordance with the practice of our probate courts in allowance of accounts of administrators and executors of deceased wives. (6) The view we contend for does not relieve the husband of his common-law duty and liability when his wife's estate is insolvent, and therefore does not deprive him of his interest in and control over the body and burial of his wife. At the funeral there can be no conflict of authority between the executor or administrator and the husband, because at that time there is no executor or administrator. He is appointed and qualified later. From the nature of the case he cannot be present. It is immaterial that the plaintiff's wife died testate. The residue under the statutes of distribution comprises all the personalty that can be disposed of by will. An executor is an administrator. If the administrator before his appointment employs the undertaker he is afterwards liable upon his express promise, and chargeable de bonis propriis,--with the privilege of allowance, however, in his probate court accounts for expenditures thus reasonably made. If he has made no such promise, he is nevertheless liable upon a promise raised by law to any person for the reasonable expenses of burying the deceased, and in such case he is chargeable de bonis intestati (or testatoris.) FIELD, J., in Sweeney v Muldoon, 139 Mass. 304, see pages 305, 306, and cases cited. Suppose that the undertaker had sued the administrator in this case, instead of collecting from the husband, no doubt he could have recovered upon the promise raised by the law, although he had an express contract with this plaintiff ...