Hayes v. Gill

• Decision Date: 13 March 1917
• Citation: 226 Mass. 388,115 N.E. 492
• Parties: HAYES v. GILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 388

115 N.E. 492

HAYES

v.GILL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 13, 1917.

Report from Superior Court, Suffolk County.

Action by Walter L. Hayes against Charles S. Gill and others, as executors of Fannie F. S. Hayes, deceased. Case reported. Judgment for plaintiff in part.

This was an action of contract. The plaintiff claimed that he was entitled to recover from his wife's executors all of the expenses of his wife's funeral and sickness which he paid before as well as after his wife's death.

The defendants contended that the plaintiff was not entitled to recover for any expenses in connection with his wife's sickness which were paid by the plaintiff prior to her death. The plaintiff further contended that if it should be held that he could not recover for all of the said expenses which he paid prior to his wife's decease, he was entitled to recover for all such expenses incurred and paid by him after the date when his said wife stated that she wished to pay said expenses.

Henry R. Scott, of Boston, for plaintiff.

Loring, Coolidge & Noble, of Boston, for defendants.

BRALEY, J.

The court of probate under R. L. c. 140, § 2, may make allowances for necessaries to the widow for herself and family under her care, and by section 3, cl. 1, where a person dies possessed of property not lawfully disposed of by will, the personal property remaining after ‘such allowances,’ shall be first applied to the payment of the debts of the deceased and the charges of his last sickness and funeral and the settlement of his estate. A similar provision is found in Pub. St. c. 135, § 3, cl. 1, concerning which it was said in Sweeney v. Muldoon, 139 Mass. 304, 307, 31 N. E. 720, 721, :

‘The necessity for a decedent burial arises immediately upon the decease, and the law pledges the credit of the estate for the payment of such reasonable sums of money as are expended for that purpose.’

And in Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631,4 Am. Rep. 311, and Morrissey v. Mulhern, 168 Mass. 412, 47 N. E. 407, where a husband paid the funeral expenses of his wife who left property, it was held notwithstanding his marital obligation that under Pub. St. c. 135, § 3, cl. 1, chapter 137, § 1, and St. 1882, c. 141, relating to the distribution of estates of married women, now R. L. c. 142, § 1, as amended by St. 1909, c. 297, he was entitled to recover the amount from the executor as a preferred charge upon the estate. The judge in the case at bar rightly allowed the funeral charges, and so much of the expenses of the last sickness of his wife as were paid after her death.

The plaintiff excepts to the rulings disallowing the remaining disbursements which had been settled prior thereto. The finding, that the plaintiff's wife, who appears to have been possessed of sufficient property for her support, stated to him, that she wished and intended the expenses incurred in connection with her last sickness should be paid out of her estate, having created no enforceable contract, the additional amount cannot be recovered unless the statute confers the right. Atkins v. Atkins, 195 Mass. 124, 128, 80 N. E. 806,11 L. R. A. (N. S.) 273, 122 Am. St. Rep. 221, and cases cited. While the term ‘expenses' is used, it is clear that preferred debts or claims is meant, for if the estate ‘is insufficient to pay all his...