Phillips v. Tribbey

• Decision Date: 01 November 1923
• Docket Number: No. 11720.,11720.
• Citation: 82 Ind.App. 68,141 N.E. 262
• Parties: PHILLIPS et al. v. TRIBBEY et al.
• Court: Indiana Appellate Court

82 Ind.App. 68

141 N.E. 262

PHILLIPS et al.

v.TRIBBEY et al.^*

No. 11720.

Appellate Court of Indiana, Division No. 1.

Nov. 1, 1923.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by Edward N. Phillips, administrator of the estate of Theodosia Phillips, deceased, and others, against Charlie M. Phillips and Lee Tribbey and wife. Judgment for defendants Tribbey and plaintiff and defendant Phillips appeal. Reversed, with instructions.

A. L. Gary, Anna L. Bohannon, and Douglas Morris, all of Rushville, for appellants.

John A. Titsworth and Russell B. Titsworth, both of Rushville, for appellees.

BATMAN, J.

This is an action by appellant Edward N. Phillips, as administrator of the estate of Theodosia Phillips, deceased, against appellant Charlie M. Phillips and appellees, to secure an order for the sale of certain real estate owned by the decedent at her death, to make assets for the payment of certain liabilities of her estate. Issues were joined by the filing of general denials. On the trial the court, pursuant to request, made a special finding of facts, and stated its conclusions of law thereon, the facts so found being in substance as follows: Theodosia Phillips died intestate in 1921, leaving as her only heirs her husband. Charlie M. Phillips, and her parents, Lee and Mary E. Tribbey. Edward N. Phillips qualified as her administrator in 1922. The decedent died the owner of personal property of the value of $335.71, and of the real estate involved in this action of the value of $2,000, which constituted the residence of the decedent and her husband at and before her death. The value of the services rendered the decedent during her last illness by her physician and nurse amounts to $172, which was paid by the administrator from her personal estate. The reasonable value of decedent's funeral, conducted by George C. Wyatt & Co., is $553, for which a claim has been duly filed. Said claim is just, due, and wholly unpaid. Charlie M. Phillips, the decedent's husband, has sufficient property in his own name, subject to execution, to pay the expenses of the decedent's last sickness and funeral. The cost of administration, without a sale of decedent's real estate, will not exceed $100, and if the same is sold such cost will not exceed $250. The taxes due from said estate amount to $25.87. The decedent has no indebtedness except as stated above. She did not expressly contract to pay the expenses of her last sickness and funeral. Demand was made on the decedent's husband for the payment of such expenses, but payment was refused. An inventory and appraisement of said real estate, with additional bond, as by statute required, were duly filed and approved on the trial of the cause. On the foregoing facts the court stated two conclusions of law as follows:

“(1) The personal estate of the decedent, in hands of administrator, is sufficient to pay all debts for which her estate is liable. (2) Decedent's funeral expenses of $553 and last sickness expenses of $172 are debts for which her estate is not liable, but are properly chargeable against her husband, Charlie M. Phillips.”

Appellants' separate exception to each conclusion of law was followed by a judgment that the administrator of said decedent take nothing by his action, and that appellees recover their costs. In this appeal appellants have challenged, separately, each of the conclusions of law on which said judgment is based.

From a consideration of the facts found it is obvious that a determination of the following question will be decisive of this appeal: May an undertaker, who has buried a deceased wife, enforce his claim for such services against her estate, where the surviving husband has sufficient property, subject to execution, to satisfy the same? It is well settled that at common law the surviving husband of a deceased wife was liable for the expenses of her last sickness and of her funeral. Rocap v. Blackwell (Ind. App. 1923) 137 N. E. 726;Butterworth & Sons v. Teale, 54 Wash. 14, 102 Pac. 768, 18 Ann. Cas. 854;Kenyon v. Brightwell, 120 Ga. 606, 48 S. E. 124, 1 Ann. Cas. 169;Bowen v. Daugherty, 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161.

[1][2][3] As the common law is in force in this state, except where modified or abrogated by statute, we must hold, under the facts of the instant case, that the surviving husband of the decedent is liable for such expenses, unless the common law, as stated, has been superseded by some legislative enactment. Appellants rely upon section 2901, Burns' 1914, as effecting a change in the common law in this regard, but we do not so construe it. In our opinion that section does not purport to create any new liability against decedent's estates, but only recognizes existing liabilities, and provides for the order of their payment. Rocap v. Blackwell, supra. Appellants state certain reasons for the common-law rule which requires a husband to pay the funeral expenses of his wife, and assert that the statutes of this state, which emancipate married women from “the barbarities of her common-law bondage,” leave the court free to give the section of the statute under consideration the construction for which they contend. In construing said section we have not been influenced by the reasons on which the common-law rule in question is based, as it should not be held to be in derogation of such rule, unless it appears to be so under a strict construction. Thornburg v. American, etc., Co. (1895) 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334;Springfield, etc., Co. v. Fields (1916) 185 Ind. 230, 113 N. E. 756;Connecticut, etc., Co. v. King (1910) 47 Ind. App. 587, 93 N. E. 1046. But, if it could be said that the...