Reynolds v. Rice

• Citation: 27 S.W.2d 1059,224 Mo.App. 972
• Parties: S. P. REYNOLDS, ADMR., APPELLANT, v. MASON S. RICE, RESPONDENT
• Decision Date: 05 May 1930
• Court: Court of Appeals of Kansas

27 S.W.2d 1059

224 Mo.App. 972

S. P. REYNOLDS, ADMR., APPELLANT, v. MASON S. RICE, RESPONDENT

Court of Appeals of Missouri, Kansas City

May 5, 1930

Appeal from Circuit Court of Buchanan County.--Hon. John D. McNeely Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Sterling P. Reynolds for appellant.

M. M Morton for respondent.

BOYER C. Barnett, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

This litigation is over the claim of a surviving husband against the estate of his wife for funeral expenses paid by him. The claim was presented to the probate court where it was allowed. The administrator pendente duly appealed to the circuit court which also rendered judgment for the claimant from which he duly appealed to this court. The case was tried upon the following agreed statement of facts.

"It is hereby stipulated and agreed between S. P. Reynolds, administrator ad litem of the estate of Lulu J. Rice, deceased, and Mason S. Rice, that the appeal of said administrator ad litem from the judgment of the probate court rendered on the 1st day of March, 1929, allowing a demand in favor of Mason S. Rice in the sum of three hundred and thirty-five dollars ($ 335.00) with interest thereon at 6 per cent per annum from the date of said allowance of said demand, be submitted to this court on the following agreed statement of facts:

"Lulu J. Rice died testate on October 6, 1926, a resident of Buchanan County, Missouri, leaving an estate of personal property of approximate value of $ 2000 and leaving no children surviving her, but leaving said Mason S. Rice, her widower, three brothers and two sisters as her heirs at law. On October 25, 1926, on the application of Mason S. Rice, the Probate Court of Buchanan County, Missouri, made its order refusing to issue letters of administration and authorizing the said Mason S. Rice to collect, sue for and retain all of the property belonging to said estate in the same manner and with the same effect as if he had been appointed and qualified as executor thereof. After the death of the said Lulu J. Rice, the said Mason S. Rice did authorize and direct the burial by Louis Davis of the said Lulu H. Rice in an appropriate casket and did further retain said Louis Davis as an undertaker and funeral director to render such service as is properly incident to such burial and that the said Mason S. Rice did without compulsion, pay said undertaker and funeral director the sum of three hundred and thirty-five dollars ($ 335.00) in payment for said casket and services performed in the matter of said burial and funeral; that the said expenditure of three hundred and thirty-five dollars was reasonable in amount, taking into consideration the station in life of the said Lulu J. Rice at the time of her death; that on or about the---day of---, 19---, on the application of J. W. Nidy, one of the heirs of Lulu J. Rice, the Probate Court of Buchanan County, Missouri, did set aside its order refusing letters of administration upon the estate of the said Lulu J. Rice, made October 25, 1926, and thereafter the will of said Lulu J. Rice was admitted to probate and the said Mason S. Rice was named therein as executor, and on the 5th day of June, 1928, said Probate Court of Buchanan County, Missouri, did make its order appointing the said Mason S. Rice as executor of the will of said Lulu J. Rice and thereafter, to-wit, on the 9th day of February, 1929, the said Mason S. Rice did file in the Probate Court of Buchanan County, Missouri, his claim against the estate of the said Lulu J. Rice for the amount that he, the said Mason S. Rice, had paid out for the expenses of the funeral of the said Lulu J. Rice as aforesaid, which claim is attached to the transcript of this proceeding, filed in this court and is made a part of this stipulation; that on March 1, the said Probate Court of Buchanan County, Missouri, did appoint said S. P. Reynolds as administrator ad litem to defend against said claim and thereupon said S. P. Reynolds did waive notice of exhibition of said claim and consent that same be then heard; that on the said 1st day of March, 1929, said claim came on to be heard before the Probate Court of Buchanan County, Missouri, said Mason S. Rice appeared in person and by his attorney, W. M. Morton, and said S. P. Reynolds, administrator ad litem, appeared in person and the evidence being submitted and heard, the court made its order allowing said claim in the sum of three hundred thirty-five dollars ($ 335.00)."

The sole question is whether under the law and the evidence judgment was for the right party. Can a surviving husband who has paid necessary funeral expenses for his wife recover the amount from her estate?

OPINION.

A husband is obliged to furnish necessaries for his wife and is bound to compensate third persons for them, whether furnished with or without his knowledge or consent. The wife may render him liable for them by her contracts with third persons. [Gately Outfitting Company v. Vinson (Mo. App.), 182 S.W. 133; Sauter v. Scrutchfield, 28 Mo.App. 150.] The husband is not relieved by the fact that the wife may be possessed of a separate estate. [Boldwin v. Fowler (Mo. App.), 217 S.W. 637.]

In 30 Corpus Juris, on page 606, paragraph 156, the learned editor of the subject, "Husband and Wife" in dealing with the sub-topic, Necessaries and Family Expenses, including funeral expenses, and the liability of the husband therefor, states:

"At common law the husband is liable for the reasonable funeral expenses of his wife."

In support of this statement the author cites cases from the states of Alabama, Arkansas, California, Connecticut, Georgia, Illinois, Kentucky, Maryland, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Washington, and England. It is further said:

"The obligation of the husband is sometimes placed in whole or part on the ground of common decency; but it is generally deemed to be included in, or to be incident to, or to grow out of, the duty to support and maintain the wife while living and to furnish her with necessaries."

This statement is supported by authorities from Maryland, New Jersey, Arkansas, California, Georgia, Illinois, Indiana, and Massachusetts.

The following cases hold that the surviving husband is primarily liable for the funeral expenses of the wife. [Ketterer v. Nelson, 146 Ky. 7, 141 S.W. 409; Stone v. Tyack, 164 Mich. 550, 129 N.W. 694; Waesch's Estate, 166 Pa. 204, 30 A. 1124.]

It is further stated in 30 Corpus Juris, page 607:

"It is held that the liability of the husband exists regardless of whether or not the wife may have had property of her own; that he is not absolved from his common-law obligation by statutes providing for a wife's separate estate; and that he cannot, upon paying the funeral expenses of the wife, charge such expenses to, or recover them from, her separate estate."

Numerous authorities are cited, and the text proceeds:

"In some states statutes providing for the payment of funeral expenses by the executor or administrator are construed to impose a mandatory duty on the executor or administrator of a deceased wife irrespective of the common-law obligation of the husband to meet these expenses. Under these statutes, so construed, the obligation of the surviving husband is secondary in character, and in the event of payment by him, the charge may be established as a claim against the estate of the deceased wife."

Such is the holding in the case of Constantinides v. Walsh, 146 Mass. 281, 15 N.E. 631, and In re Skillman, 146 Iowa 601, 125 N.W. 343. It is further stated:

"Other courts, however, construe such statutes as only recognizing priorities and establishing the order of payment as between claimants who have valid claims against the estate, and not as relieving the surviving husband from liability for the funeral expenses of the deceased wife."

In support of the last statement the following cases are cited: Kenyon v. Brightwell, 120 Ga. 606, 48 S.E. 124; Gustin v. Bryden, 205 Ill.App. 204; Bowen v. Daugherty, 168 N.C. 242, 84 S.E. 265; McClellan v. Filson, 44 Ohio St. 184, 5 N.E. 861. The last case holding that such statute renders the estate of the wife liable, but does not relieve the husband from his liability.

The same author further treating of the subject under the subtitle of "Wife's Separate Estate" and its liability for necessaries and family expenses, including funeral expenses, on page 923, paragraph 628, says:

"In some jurisdictions it has been held that the husband is primarily liable for his wife's funeral expenses although the wife possesses a separate estate, and that such expenses cannot be charged against her estate, . . ."

The authorities here cited are from Alabama, Connecticut, Illinois, Kentucky, Maryland, Michigan, Pennsylvania, and English cases. The author on the following page then presents this conclusion:

"The weight of authority, nevertheless, under the married women's acts, holds that the estate of the wife who dies leaving separate property is primarily liable for her funeral expenses, and that the husband having paid the same may recover from such estate, . . ."

The authorities cited under this statement are from Massachusetts, New York, Ohio, Rhode Island, Wisconsin, and English cases.

The exact question presented for consideration in the instant case does not appear to have claimed heretofore the attention of any of our own appellate courts. We are confronted by a contrariety of opinion and conflict of decisions from other jurisdictions, the value and weight of which depend on the reasons assigned, as well as the character of the various statutes and the declared policy of the several states....