Hayes v. Gill , 226 Mass. 388 ( 1917 )

Braley, J.

The court of probate under R. L. c. 140, § 2, may make allowances for necessaries to the widow for herself and family under her care, and by § 3, cl. 1, where a person dies possessed of property not lawfully disposed of by will, the personal property remaining after “such allowances,” shall be first applied to the payment of the debts of the deceased and the charges of his last sickness and funeral and the settlement of his estate. A similar provision is found in Pub. Sts. c. 135, § 3, cl. 1, concerning which it was said in Sweeney v. Muldoon, 139 Mass. 304, 307, “The necessity for a decent burial arises immediately upon the decease, and the law pledges the credit of the estate for the payment of such reasonable sums of money as are expended for that purpose.” And in Constantinides v. Walsh, 146 Mass. 281, and Morrissey v. Mulhern, 168 Mass. 412, where a husband paid the funeral expenses of his wife who left property, it was held notwithstanding his marital obligations, that under Pub. Sts. c. 135, § 3, cl. 1, c. 137, § 1, and St. 1882, c. 141, relating to the distribution of estates of married women, now R. L. c. 142, § 1, as amended by St. 1909 ,c. 297, he was entitled to recover the amount from the executor as a preferred charge upon the estate.

The judge in the case at bar rightly allowed the funeral charges, and so much of the expenses of the last sickness of his wife as were paid after her death. The plaintiff excepts to the rulings disallowing the remaining disbursements which had been settled before her death. The finding, that the plaintiff’s wife, who appears to have been possessed of sufficient property for her support, stated to him, that she wished and intended the expenses incurred in connection with her last sickness should be paid out of her estate, having created no enforceable contract, the additional amount cannot be recovered unless the statute confers the right. Atkins v. Atkins, 195 Mass. 124, 128, and cases cited. While the term “expenses” is used, it is clear that preferred debts or claims is meant, for if the estate “is insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral and last sickness and the charges of administration, be applied” as provided in R. L. c. 142, § 1. Wilson v. Shearer, 9 Met. 504, 506, 507. The presumption under the statute is that funeral expenses are incurred on the credit of the estate, Rice v. New York Central & Hudson River Railroad, 195 Mass. 507, 510, while medical attendance and other necessary services are ordinarily procured or furnished on the credit of the decedent, although if unpaid at his death the estate is chargeable therefor. Hapgood v. Houghton, 10 Pick. 154, 156. The statute directs the order in which the assets shall be marshalled for the payment of debts. R. L. c. 141, § 5. Fuller v. Connelly, 142 Mass. 227.

The date of death is the point of time when the question whether there are unpaid expenses is to be determined, and the right to participate as a preferred creditor depends upon the existence of a provable debt or claim. If subsequent to his wife’s death the husband pays a valid debt or claim within this class, he is not a volunteer, but is subrogated by force of the statute to the rights of the creditor. Jackson Co. v. Boylston Mutual Ins. Co. 139 Mass. 508, 510; Constantinides v. Walsh, 146 Mass. 281. But at the death of his wife, those with whom the debts in question were contracted had no unsatisfied demands to whose rights the plaintiff could be subrogated. The testatrix owed no duty, and was under no legal obligation to reimburse her husband for the payments made in liquidation of his own pecuniary obligations, and the demands having been extinguished there were no unpaid expenses as now claimed with which her estate is primarily chargeable.

We find no error of law in the rulings, and in accordance with the terms of the report, the plaintiff is to have final judgment in the sum therein stated.

So ordered.