Kelly v. Wilson (In re Skillman's Estate)

• Decision Date: 16 March 1910
• Citation: 146 Iowa 601,125 N.W. 343
• Parties: IN RE SKILLMAN'S ESTATE. KELLY v. WILSON ET AL.
• Court: Iowa Supreme Court

146 Iowa 601

125 N.W. 343

IN RE SKILLMAN'S ESTATE.KELLY

v.WILSON ET AL.

Supreme Court of Iowa.

March 16, 1910.

Appeal from District Court, Keokuk County; B. W. Preston, Judge.

F. Emma Skillman died testate and childless July 27, 1907, but left her surviving a husband, E. H. Skillman. By the terms of the will, she directed the payment of all just debts, and left one-third of two lots and all other property save her household goods to her husband, two-thirds of the lots and said household goods to her sister Mary E. Springer, and the residue of the estate to said Mary E. Springer and another sister, Eva L. Wilson. The will was admitted to probate and executors appointed and qualified. The husband, E. H. Skillman, had been confined in the insane asylum for many years, and, upon application of the guardian, the court elected for him to take under the law, instead of the will, as surviving spouse. On September 25, 1908, by guardian, he filed a claim against the estate of the deceased wife alleging the marriage, that prior to her death she was an invalid, “that expenses were incurred in her last sickness and funeral, and that claims had been filed against the estate of said deceased therefor, and that defendants, as executors, have wholly failed and neglected to pass upon said claims or to act upon the same and approve or reject the said claims.” Said claims are set out; being for burial lot, digging grave, undertaker's services, casket, embalming and physician's services, and hospital charges--amounting in all to $810.37. It was further alleged that deceased left a large estate, amply sufficient to pay said claims, that demand for their payment or of some of them has been made on the guardian; that all of them are contractual liabilities on the part of deceased, and it was prayed that said claims be allowed claimant as contingent claims, and that there be returned to him such amounts as shall be paid by him in the settlement and satisfaction of the claims filed against the estate of deceased. Subsequent to the filing of the claim the husband died, and E. H. Kelly, having been appointed administrator of his estate, was substituted as claimant. The executors of the estate of the wife demurred to the petition on several grounds. The demurrer was sustained, and, claimant having elected to stand on the ruling, the claim was dismissed. The administrator of the estate of E. H. Skillman appeals. Reversed.

Deemer, C. J., and McClain, J., dissenting.

Stockman & Baker, for appellant.

Chas. C. Heninger, for appellees.

LADD, J.

Both husband and wife are dead, the latter first having departed this life, and the sole question presented on this appeal is whether, assuming the estate left by each to be ample to satisfy all claims for the expenses of last sickness and funeral of the wife, the husband in his lifetime, or the administrator of his estate may have established in his favor the amount of such expenses as a contingent claim against the estate of the wife. Section 3343 of the Code authorizes the establishment of a contingent liability against the estate of a deceased person, and plaintiff contends that this claim should have been allowed for that, as counsel argue, the deceased wife's estate is primarily liable therefor, and the liability of the husband or his estate is only secondary. No question is made but that the expenses for hospital and medical attendance constitute a family expense which, under section 3165 of the Code, was “chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” As noted in Schrader v. Hoover, 80 Iowa, 243, 45 N. W. 734, this statute enlarges the husband's common-law liability for necessaries, and, as to the creditors, renders the wife equally liable with the husband. As to them, both are principals. Murdy v. Skyles, 101 Iowa, 549, 70 N. W. 714, 63 Am. St. Rep. 411. But neither is surety for the other. Vest v. Kramer (Iowa) 114 N. W. 886, 14 L. R. A. (N. S.) 1032. The statute does not undertake to determine the relative obligations of the husband and wife as to such expenses, though the nature of these, owing to the solidarity of their interests, precludes any other conclusion than that these, being equal, payment by one confers no right of recovery or of contribution from the other. At the common law, every husband was bound to bury his deceased wife in a suitable manner; that is, he was bound to defray all necessary funeral expenses. Schouler's Domestic Relations, § 199; Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384. And notwithstanding the enactment of the married woman's acts, many courts, in the absence of statutes like that hereinafter referred to, adhere to the doctrine. Thus in Smyley v. Peese, 53 Ala. 90, 25 Am. Rep. 598, the husband as administrator of his wife's estate claimed credit for her funeral expenses and the erection of a monument marking her last resting place, but the items were rejected because of the husband's paramount liability therefor. To the same effect, see In re Weringer's Estate, 100 Cal. 345, 34 Pac. 825; Staple's Appeal, 52 Conn. 425; Gallaway v. Estate of McPherson, 67 Mich. 546, 35 N. W. 114, 11 Am. St. Rep. 596. But where the deceased wife's will expressly directs the payment of funeral expenses from her estate, the husband is held to be entitled to reimbursement. Willeter v. Dobie, 2 Kay & J. 647; Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399. But for section 3347 of the Code, then, the obligations of the husband were such that upon payment of the expenses of the last sickness and funeral of his wife unless as administrator of her estate, claim therefor might not be established against her estate. That section provides that, “as soon as the executor or administrator is possessed of sufficient means over and above the expenses of administration, he shall pay off the charges of the last sickness and funeral of deceased, and next, any allowance made by the court for the maintenance of the widow and minor children.” Thereby preference is given over all ordinary debts, taxes, and the like, and, regardless of the relative obligations of the living or that of the husband at the common law, the duty of meeting these expenses is especially imposed upon the executor of every deceased person.

In McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861, 58 Am. Rep. 814, the court held that a statute directing the payment of funeral expenses out of the estate applied to the estates of married women and like rulings are found elsewhere. Buxton v. Barrett, 14 R. I. 40; Carpenter v. Hazelrigg, 103 Ky. 538, 45 S. W. 666;Schneider v. Breiers, 129 Wis. 446, 109 N. W. 99, 6 L. R. A. (N. S.) 917. While in England the law cast on the husband the duty of burying his deceased wife, this was not always at his own expense. In Re McMyn, 33 Ch. D. 575, the wife was engaged in a separate business, and by will left her husband a legacy and named him as executor, but made no provision for funeral expenses. The court, speaking through Clitty, J., said that: “In most cases, the husband takes all his wife's personal property by reducing it into possession during his lifetime. To call upon her out of his own moneys in a case like the present, where the wife exercised the power of appointment and made the fund general assets for her creditors, but has omitted to mention her funeral expenses, would be too hard. I think therefore the husband is entitled to retain the sums expended for her funeral.” This would seem to hold that the interest of the husband in the wife's property may have had something to do in fixing the husband's liability, but in Gould v. Moulahan, 53 N. J. Eq. 341, 33 Atl. 483, wherein the court held the wife's estate liable for funeral expenses where the husband was unable to pay, said: “His liability for the expense of the interment does not arise in virtue of any interest he may have in the wife's property, but from the personal advantage it is to himself to have those persona conjunctæ with him, his wife and lawful children, properly maintained during life and suitably buried at death.”

In Moulton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728, the husband was administrator of his deceased wife's estate, and as such paid the expenses of funeral and last sickness. Upon his death, the administrator of his estate presented a claim therefor and expenses of administration, and the court held that though the husband was entitled to settle the estate as if no such relation existed, and if he so elected to pay therefor from the funds of the estate, but as she might not contract a debt, being covert, for physician's services, claim therefor was held not allowable. In Towery v. McGaw, 56 S. W. (Ky.) 727, the husband as administrator was allowed a credit for moneys paid out of his wife's estate for funeral expenses, but the hospital expenses of her last sickness were held to be “necessaries” within the statute of that state for which he was liable and not a proper credit. These decisions were independent of statutory provisions like those of this state but in Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311, the precise question before us was under consideration. The wife had died possessed of a separate estate and left a will naming her son executor. The husband, without knowing this paid for her necessary funeral expenses, and claim against her estate therefor was allowed. The statutes of Massachusetts, though in different language, are in substance like those of this state in directing that, “when a person dies possessed of personal estate, the necessary expenses of his funeral and last sickness and charges of administration” be first paid, and the court, speaking through Holmes, J., said: “The funeral expenses of the testatrix were a preferred charge upon her estate. Pub. St. c. 135, § 3; c. 137, § 1; St. 1882, c. 141. Under these statutes...