Davis v. Herbert
| Decision Date | 02 May 1916 |
| Docket Number | No. 1354.,1354. |
| Citation | 97 A. 879,78 N.H. 179 |
| Parties | DAVIS v. HERBERT et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Sawyer, Judge.
Suit by Harland M. Davis against W. S. B. Herbert, administrator of Matthew Leazott, and others. Demurrer to bill overruled, and defendant excepted. Transferred from superior court. Exceptions sustained.
Bill in equity, by one who furnished supplies and performed services as undertaker in the care and burial of the body of Matthew Leazott, praying that the administrator be ordered to pay therefor. The bill alleges, in substance, that Leazott was killed in an accident on the Boston & Maine Railroad April 12, 1914; that his only heir is Bertha B. Leazott, his minor child; that the plaintiff, at the request of those in charge of the body, acted as undertaker, performed services, and furnished supplies to the value of $90; that said Leazott left no estate; that Herbert was appointed administrator of the estate of said Leazott; that the railroad settled the claim against it for damages in causing the death of Leazott by paying the administrator $1,550; that Susan B. Philbrick was appointed guardian of said Bertha; that on December 4, 1914, said bill was presented to the administrator, payment demanded, and the administrator refused to pay or allow any part of the same. No objection was raised to the form of the action. The defendants demurred to the bill and assigned as ground for the demurrer that the damages recovered are not assets of said estate liable for the satisfaction of debts. Subject to exception the demurrer was over ruled, and the administrator was advised to pay the undertaker's bill.
Charles J. Hamblett and Marshall D. Cobleigh, both of Nashua, for plaintiff. Charles A. Perkins, of Manchester, for defendants.
The question presented is not an open one in this state. The only charges against the damages recovered for wrongfully causing death are the expenses of recovery. The balance "shall belong and be distributed" to certain beneficiaries. P. S. c. 191, § 13. The damages are not assets for the satisfaction of creditors' claims against the estate, and the general assets cannot be used to prosecute a suit of this character to the detriment of creditors. Cogswell v. Railroad, 68 N. H. 192, 194, 44 Atl. 293.
It is urged that because the expenses to the estate caused by the injury may be recovered as an element of damage in these suits (P. S. c....
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Ghilain v. Couture
...nor can the assets of the estate be used to defray the expenses of suit under the statute. Cogswell v. Railroad, supra; Davis v. Herbert, 78 N. H. 179, 180, 97 A. 879. As no creditor of the deceased can be either benefited or burdened by any action brought under the statute or have "the sli......
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Burke v. Burnham
...specified exceptions) belong to and are to be distributed among statutory beneficiaries, as provided in section 14. Cf. Davis v. Herbert, 78 N.H. 179, 97 A. 879. These principles are not disputed by the parties. To the extent that the action is to recover for the death of the decedent, it p......
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McCarthy v. Souther
...are an element of damage, and since there was evidence that the bill was paid by the estate, the evidence was competent (Davis v. Herbert, 78 N. H. 179, 97 A. 879). The suggestion that death, not caused by the defendant's fault, would have eventually occurred to make necessary the expense d......
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Marsh v. City of Miami
... ... 229; In re Lister's Estate, 22 Ariz. 185, 195 P ... 1113; Hindmarsh v. Sulpho Saline Bath Co., 108 Neb ... 168, 187 N.W. 806; Davis v. Herbert, 78 N.H. 179, 97 ... A. 879; Hamilton v. Erie R. Co., 219 N.Y. 343, 114 ... N.E. 399, Ann. Cas. 1918A, 928; Kerley v. Hoehman, ... 74 ... ...