Sweeney v. Muldoon

• Decision Date: 11 May 1885
• Citation: 31 N.E. 720,139 Mass. 304
• Parties: SWEENEY v. MULDOON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 304

31 N.E. 720

SWEENEY

v.MULDOON.¹

Supreme Judicial Court of Massachusetts, Suffolk.

May 11, 1885.

Report from superior court, Suffolk county; BACON, Judge.

Action of contract by Johanna Sweeney against John Muldoon, as administrator of the estate of Owen Muldoon, deceased, for money paid. The account contained the following items: (1) Lot in Mt. Calvary Cemetery, $125; (2) digging grave, $3; (3) use of chapel for services and for funeral ceremony, $12; (4) curtains, $10; (5) flowers, $6; (6) underwear and clothing, $3.40; (7) monument, carting, setting, and fixing lot, $113. The judge instructed the jury that the plaintiff could not recover the item for the monument. The jury returned a verdict for the plaintiff for the remaining items; and, at the request of the plaintiff, with the consent of the defendant, the case was reported for the determination of the supreme judicial court. Judgment on the verdict.

J. Willard and C. Steere, for plaintiff.

J.A. Maxwell, for defendant.

FIELD, C.J.

It has not been contended by the defendant, in his argument in this court, that the instructions of the judge of the superior court were not correct. The items in the account annexed, other than that for the monument or tombstone, are for the purchase of a burial lot and for funeral expenses, and were incurred after the death of the defendant's intestate, and before the appointment of the defendant as administrator. The law raises a promise on the part of an administrator, so far as he has assets, to pay the reasonable funeral expenses of burying the deceased, although they are incurred before his appointment. Hapgood v. Houghton, 10 Pick. 154;Adams v. Butts, 16 Pick. 343;Luscomb v. Ballard, 5 Gray, 403. The question has not been raised whether the judgment should be de bonis propriis or de bonis intestati, but we think the judgment should be de bonis intestati, unless the administrator personally authorized the expenditures. Luscomb v. Ballard, ubi supra.

The statute of 1878, c. 228, provided that “probate courts, in the settlement of the estates of deceased persons, may allow as a part of the funeral expenses a reasonable sum expended for a monument and burial lot for such persons.” In this case the widow and next of kin united in requesting the plaintiff to purchase a burial lot, and she did so. If the deceased owned a burial lot, or had a right of burial in a public or private cemetery, we are not required to determine whether, independently of the statute, his estate could be charged with the cost of purchasing another burial lot, or right of burial, selected by his widow and next of kin, because the defendant does not object to this item in the account. We have been shown no case in this commonwealth in which, before this statute, the cost of a burial lot was considered as a part of the funeral expenses. By Pub.St. c. 82, § 9, “each town and city shall provide one or more suitable places for the interment of persons dying within its limits,” and it could not well happen in this commonwealththat the purchase of a burial lot would be absolutely necessary for the proper interment of the deceased. The widow and next of kin undoubtedly have the right, as against strangers, to determine the place of burial; but, if the place selected is other than that in which the deceased had a right of burial, it...