Lenderink v. Sawyer

• Decision Date: 27 November 1912
• Docket Number: 16,805
• Citation: 138 N.W. 744,92 Neb. 587
• Parties: HENRY J. LENDERINK, ADMINISTRATOR, APPELLEE, v. B. F. SAWYER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

138 N.W. 744

92 Neb. 587

HENRY J. LENDERINK, ADMINISTRATOR, APPELLEE, v. B. F. SAWYER ET AL., APPELLANTS

No. 16,805

Supreme Court of Nebraska

November 27, 1912

APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Reversed.

REVERSED.

Paul Pizey, for appellants.

J. J McCarthy, contra.

HAMER J. LETTON and FAWCETT, JJ., concurring in result, SEDGWICK, J., concurs in the conclusion.

OPINION

HAMER, J.

This is an appeal from the judgment of the district court for Dakota county against the coroner of that county and the surety on his official bond. The suit was brought by the administrator of the estate of Robert Reed, deceased. It appears that one Robert Reed died intestate at his home in Dakota county while living alone; that when his body was found the defendant, Sawyer, at the request of the nephew of the deceased, took charge of the body and gave it a Christian burial; that he took possession of certain personal property of the deceased, sold it for its full value, and applied the proceeds to the payment of the expenses necessarily incurred for the burial casket, the lot in the cemetery, etc. The plaintiff, as administrator, brought this action to recover the value of the personal property so sold. On the trial the defendant offered to prove as a matter of set-off that the expenses incurred by him were proper and necessary, and were just and reasonable in amount; that the property was sold with the consent of the nephew and a son of the deceased, or at least the son ratified the sale; that the amount realized from the sale was the full value of the property; and the defendant sought to set off his expenses against the sum received by him for the sale of the property. The proposed evidence was rejected, and the court directed the jury to return a verdict against the defendants for the amount that the defendant Sawyer realized from the sale of the property. The verdict and judgment rendered were for $ 499.72. For the rejection of the evidence so proffered and the giving of the peremptory instruction, the defendants assign error.

It is claimed by the defendants that the administrator is estopped from prosecuting the action; that all the charges made by the defendant were reasonable and just; and there seems to be no controversy concerning the fact that defendant Sawyer sold the property and paid the funeral expenses with the proceeds. One purpose of an administrator is to take charge of the property belonging to the estate. He becomes the means by which the property belonging to the estate is applied to the payment of debts, if there are any, and the surplus remaining is distributed among the heirs. The statute in this case seems to contemplate that those of the relatives who are near the deceased are charged with the duty of taking care of the body and burying it. If the defendant Sawyer carried out the wishes of the relatives who were there, it would appear that the other relatives would have no reason to complain. As the administrator represents the creditors and the heirs, and is only a trustee, he is estopped from maintaining an action against the defendant Sawyer and his bondsmen for doing that which Sawyer was requested to do, and which he actually did, in taking charge of the body of the deceased and burying it. In Dame, Probate and Administration, sec. 231, it is said: "All courts generally hold that the personal representatives may pay the same, (funeral claims) directly without their being exhibited." If this be true with respect to personal representatives, it should be true of the coroner who is requested by the personal representatives to discharge the duties which are a natural burden upon them.

It is altogether probable that when Sawyer sold the property he thought he was authorized to do so by section 110, ch. 18, art. I, Comp. St. 1909: "When any valuable personal property, money, or papers are found upon or near the body upon which an inquest is held, the coroner shall take charge of the same and deliver the same to those entitled to its care or possession; but if not claimed, or if the same shall be necessary to defray expenses of the burial, the coroner shall, after giving ten days' notice of the time and place of sale, sell such property, and after deducting coroner's fees and funeral expenses, deposit the proceeds thereof, and the money and papers so found, with the county treasurer, taking his receipt therefor, there to remain subject to the order of the legal representatives of the deceased, if claimed within five years thereafter, or if not claimed within that time, to vest in the school fund of the county." He was brought face to face with the problem of giving the body of the deceased decent and immediate Christian burial. The sale of the property would furnish the means of paying the very necessary expenses of the funeral. He sold it, got the money, and used it. The dead man seems to have been decently and properly buried according to Christian rites. The defendant is equitably entitled to his pay for it, and it is not quite right that the plaintiff should have judgment against him. We do not intend to hold that the section quoted justified the conduct of the coroner. The same is justifiable upon other grounds. We think that if the defendant Sawyer was requested by the nephew, Bert Reed, to take charge of the body and to prepare it for burial, and that he did so because of such request, and that he sold the property for its full and fair value, which is not questioned, and used the money which he received therefor in payment of the necessary funeral expenses, then he is equitably entitled to pay therefor, and he is further equitably entitled to set off the money so paid out by him against the plaintiff's claim for the value of the property sold. The same is true if the matter was ratified and adjusted between the defendant Sawyer and the son of the deceased, Earnest Reed. We do not undertake to say what, if any, steps should have been taken before the county court towards proving these claims, because that question is not before us.

"The true representative is bound by those acts of an executor de son tort which are lawful and such as the true representative would be bound to perform in the due course of administration." 18 Cyc. 1361. Among the authorities cited is Thompson v. Harding, 75 E.C.L. (Eng.) 630 holding that a proper payment to a creditor of the estate will bind the true representative. In that case Richard Smith was employed to receive the rents of the deceased in his lifetime, and after his death continued to receive...