Hall v. Stewart

• Decision Date: 15 March 1923
• Citation: 116 S.E. 469
• Court: Virginia Supreme Court
• Parties: HALL . v. STEWART.

116 S.E. 469

HALL .

v.STEWART.

Supreme Court of Appeals of Virginia.

March 15, 1923.

West and Prentis, JJ., dissenting.

Appeal from Circuit Court, Smyth County.

Suit by C. W. Stewart against G. L. Hall for partition and for an allowance for expenses. From an adverse decree, defendant appeals. Reversed and remanded.

S. B. Campbell, of Wytheville, for appellant.

J. P. Buchanan and J. D. Perkins, both of Marion, for appellee.

BURKS, J. C. W. Stewart and Minnie B. Stewart, his wife, jointly owned a house and lot in the town of Marion, Va., acquired by them in 1918. In December, 1920, Mrs. Stewart was taken sick, carried to a hospital, and shortly thereafter died. The expenses of her last sickness and funeral amounted to $468.50, composed of doctor's bills, $117; hospital and nurses, $106.50; undertaker's bills, $245. All of these bills were charged to and paid by the husband, C. W. Stewart. No issue was ever born of the marriage, and Mrs. Stewart died intestate, possessed of no personal estate, and seized ofno real estate, except the undivided half interest in the house and lot aforesaid. Her sole heir was her father, G. L. Hall. This suit was brought by C. W. Stewart to the first January rules, 1921, asking a sale of the house and lot aforesaid for the purpose of partition, and that there be refunded to him out of his wife's half of the house and lot the amount paid by him as aforesaid for the expenses of the last sickness and funeral of his wife. The trial court allowed the full amount of the husband's claim, and from the decree making that allowance this appeal was taken.

There is no dispute about the facts, and the sole question presented for decision is: Was the allowance proper?

It Is generally conceded that, at common law, the husband was bound for the funeral expenses of his wife, but owing largely to differences in the language of the statutes on the subject of funeral expenses and the estates of married women, or the construction put upon the language, there is a lack of harmony in the decisions as to the liability of the husband for the funeral expenses of the wife. The different views taken by the courts are well stated in 13 R. 0. L. § 248, p. 1214, and the statements of the author are well supported by the cases cited in the notes, all of which we have carefully examined. We give below the text of that section, placing in the text, not only the authorities cited in the notes, but other pertinent cases we have examined.

"Reimbursement of Husband for Wife's Funeral Expenses.—Where a married woman by her will expressly charges her separate estate with the payment of her funeral expenses, the husband is entitled to reimbursement from such estate in case he has paid such charge. In re Skillman, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295. Notes: 33 L. R. A. 662, 37 L. R. A. (N. S.) 755. In some jurisdictions the view is taken that, although that by the statute a married woman is entitled to the exclusive use and ownership of her separate property, free from any claim or control of her husband, and the husband is not liable for her debts contracted before marriage, yet the husband, as at common law, is bound to pay the wife's funeral expenses, and cannot claim reimbursement therefor out of her lestate. Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Kenyon v. Brightwell, 120 Ga. 606, 48 S. E. 124, 1 Ann: Cas. 169; Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409, 37 L. R. A. (N. S.) 754; Gallaway v. McPherson's Estate, 67 Mich. 546, 35 N. W. 114, 11 Am. St. Rep. 596. Notes: 32 Am. Rep. 170; 33 L. R. A. 662; 6 L. R. A. (N. S.) 917; 37 L. R, A. (N. S.) 754; 47 L. R. A. (N, S) 283; 1 Ann. Cas. 172. Ambrose v. Kerrison, 138 Eng. Reprint, 307; In re Sea, 11 P. C. 324; Boweh v. Daugherty, 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161; Stonesifer v. Shriver, 100 Md. 24, 59 Atl. 139. In other jurisdictions the view is taken under the general statutes making the funeral expenses a Charge against a decedent's estate and those establishing the independent position of married women with regard to their property that, as between the estate of a married woman and her husband, the liability of the estate must be regarded as primary, though it is his duty as before to see that his wife is buried, and that if he pays her funeral expenses 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. I» re Skillman, 148 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295; Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311; Moulton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728. Notes: 33 L. R. A. 662; 6 L. R. A. (N. S.) 917; 37 L. R. A. 283; 47 L. R. A. (N. S.) 755; 1 Ann. Cas. 172. Schneider v. Breier's Estate, 129 Wis. 446, 109 N. W. 99, 6 L. R. A. (N. S.) 917; In re Stadtmuller, 110 App. Div. 76, 96 N. Y. Supp. 1101.

"Irrespective of the duty of a husband to bury his deceased wife, and the primary obligation to pay such expenses as between the husband and wife's estate, the necessary funeral expenses of a married woman is a proper charge against, her estate, for which her executor or administrator, if paid by him, is entitled to credit on his account. McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861, 58 Am. Rep. 814. On the other hand, when the primary duty to bury his wife is considered, as at common law, to rest on the husband, it is held that, where the executor of a wife's estate reimburses the husband for expenses incurred by him in this respect, though at the request of the executor, the executor is not entitled to credit therefor in his account, especially where there is no proof that the husband did not have ample means to defray such expenses. Gallaway v. McPherson Estate, 67 Mich. 546, 35 N. W. 114, 11 Am. St. Rep. 596.

A careful consideration of the cases cited leads to the conclusion that we cannot simply choose between the holdings of different courts, but must construe our own statutes on the subject, and that but little assistance can be gotten from a review of the facts of cases in other jurisdictions and the holdings thereon, especially as many of the cases do not recite the statutes under which the decisions were rendered. Some of them, however, do, and these serve to illustrate the reason for the difference in the conclusions reached. For Instance, the Iowa court (Inre Skillman, supra) puts expenses of last illness on the same footing with funeral expenses, because the statute does so; while the Rhode Island court (Moulton v. Smith, supra), under the statute of that state, declares that the expenses of the last illness of the wife is a debt of the husband, which cannot be charged to the estate of the wife, because not within the statute providing for the payment of funeral expenses.

Prior to the enactment of our married women's statute, a married woman in this, state could own no personal estate, except an equitable separate estate, which was heldstrictly subject to the settlement, and there was nothing upon which the statutes relating to funeral expenses could operate. Since that enactment, she holds her estate according to the terms of the statute creating it. At common law the husband was liable for the funeral expenses of his wife as for necessaries. Since the enactment of the married women's statute, the husband is still entitled to the services of the wife, and is bound for her support. Richmond Ry. Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Atlantic & D. R. Co. v. Ironmonger, 95 Va. 626, 29 S. E. 319; Norfolk R., etc., Co. v. Williar, 104 Va. 679, 52 S. E. 380; Mihalcoe v. Holub, 130 Va. 425, 429, 107 S. E. 704.

There are several statutes in the state bearing on the subject under consideration, but we wish to confine the discussion, as far as possible, to the question presented in the case in judgment; that is: Can a husband to whom credit has been given, and who has paid the expenses of his wife in her last illness and her funeral expenses, have indemnity therefor out of his wife's estate? Counsel for the appellee has discussed the two items of expense as if they stood on the same footing, but they do not. The expenses of the last illness are necessaries for which the husband is still bound, and for which the wife is not bound, in the absence of any contract or agreement on her part. If she had recovered, there could be no pretense for holding her in the absence of any contract on her part, and it would be absurd to say that if she died her estate would be liable. The debt was his, not hers, and he recognized the fact and paid it. The statute giving preference to that class of debts (Code, § 5390) applies to debts of the decedent, not to debts for some one else, and this was plainly a debt of the husband contracted in the lifetime of his wife, and it is expressly declared (Code, § 5134) that the property of the wife shall not "be subject to the debts or liabilities of the husband." See. also, Moulton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728; Towery v. McGaw (Ky.) 56 S. W. 727.

Section 5390 of the Code deals with the liability of the personal estate of a decedent in the hands of a personal representative, and in effect declares that no part of such estate shall be applied to his debts until the costs of administration of his estate and his funeral expenses have been paid. Section 5273 relates to the distribution of the personal estate of an intestate, and in effect declares that there shall be no distribution of such estate until after the costs of administration, funeral expenses, and debts of the decedent have been paid. Section 5395 declares that real estate of an intestate—

"shall be assets for the payment of the decedent's debts and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied."

At common law a married woman could neither contract nor...