Samuels v. Hirz
| Decision Date | 10 June 1959 |
| Citation | 189 Pa.Super. 492,151 A.2d 640 |
| Parties | Lillian SAMUELS, Appellant, v. Ben HIRZ. |
| Court | Pennsylvania Superior Court |
Berger & Berger, Daniel M. Berger, Pittsburgh for appellant.
No appearance for appellee.
Before RHODES, P. J., and HIRT, GUNTHER WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.
The question presented by this appeal is the liability of the husband of a deceased wife to the wife's natural daughter for bills paid by the daughter in connection with the wife's last illness and death, where the husband and wife were separated and the husband was under an order of support. The court below sustained the husband's preliminary objections and dismissed the daughter's complaint. This appeal by the daughter followed.
Appellant's complaint in assumpsit avers that her mother died intestate on February 20, 1957, that the mother's estate was insolvent, and that the daughter 'was compelled' to pay funeral expenses in the amount of $536 and a hospital bill in the amount of $1,130.82. While the complaint further avers that appellant was appointed administratrix, suit was not instituted by appellant in her fiduciary capacity, but as an individual. Appellant also sought to recover for bills submitted by two physicians covering medical services rendered decedent in total amount of $392. However, the complaint avers that appellant 'is not legally obligated to pay these bills', and that she in fact did not pay them. There can be no question as to the propriety of the lower court's action in dismissing appellant's complaint in this regard.
Counsel for appellant asserts that the precise issue on this appeal is one of first impression in Pennsylvania. At common law, and as a general rule, the husband is liable for his wife's funeral expenses, and his liability is not altered by the fact that, at the time of death, the husband and wife were living apart. See 41 C.J.S. Husband and Wife § 61. It is well established in this Commonwealth that a husband assumes the duty of reasonably supporting his wife when he marries, and his duty is a continuing one of which, in the absence of grounds for divorce, he cannot relieve himself by separation. Commonwealth v Dugan, 162 Pa.Super. 10, 56 A.2d 683; Commonwealth ex rel. Kielar v. Kielar, 160 Pa.Super. 435, 51 A.2d 514. The obligation is imposed by law as an incident of the marital status. Commonwealth v. Berfield, 160 Pa.Super. 438, 51 A.2d 523; Commonwealth ex rel. Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430. We have uniformly held that a surviving husband is liable for the funeral expenses of his deceased wife where the parties are living together at the time of her death. See In re Mitchell's Estate, 79 Pa.Super. 208; In re Koska's Estate, 176 Pa.Super. 519, 108 A.2d 829. Our view is that this liability like the obligation to support, is not altered by the separation of the parties. Certainly the existence of a support order should not relieve the husband of his liability. In Barnes v. Starr, 144 Md. 218, 124 A. 922, 923, 34 A.L.R. 809, the husband was held liable for the funeral expenses of his deceased wife, even though they were separated and he was under an order of support. In that case it was said: 'The duty of a husband to bury his wife in a civil manner is involved in the obligation to maintain her while living, and rests also upon a due regard for the decencies of life, and the health of the public'.
We are also of the opinion that a husband, although separated and under a support order, is liable for the expenses of his wife's last illness. Section 622 of the Fiduciaries Act of 1949 [1] accords preferred treatment to '(3) The costs of the decedent's funeral and burial, and the costs of medicines furnished to him within six months of his death, of medical or nursing services performed for him within that time * * *.' Thus, by statute, expenses of the last illness are placed in the same classification and have the same order of payment as funeral expenses. In Pennsylvania, where the parties are not living separate and apart, the surviving husband is unquestionably liable for the expenses incident to his wife's last illness and death. In re Conn's Estate, 65 Pa.Super. 511; Waesch's Estate, 166 Pa. 204, 30 A. 1124. So far as this liability is concerned, we perceive no logical difference between the wife's funeral expenses and the expenses of her last illness. As previously demonstrated, the surviving husband's liability is not altered by the separation of the parties or the existence of a support order.
Finally, we...
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