Barbee v. . Green , 86 N.C. 158 ( 1882 )

There is no reason assigned by his Honor for making the ruling on this exception, but we must infer from the qualification of the judgment, that it was based upon the idea that the defendant's demand could not be set up as a counterclaim or set-off to the action of the plaintiff; and this presents the only question raised in the record.

All the authorities concur that an executor or administrator may be sued for the funeral expenses of his testator or intestate, and having assets is liable to a judgment for them suitable to the degree and circumstances of his testator or intestate.

In the case of Ward v. Jones, administrator, 44 N.C. 127, this court held that the expenses necessary for the interment of a deceased person and suitable to the estate which he leaves behind him, are a charge upon theassets in the hands of the executor or administrator, and have a preference over all other debts. They bind the assets, independent of any promise by the executor or administrator, provided he is notified that they are claimed as a funeral charge before the assets are exhausted in the payment of other demands.

So in Hopgood v. Haughton, 10 Pick., 154, it is held that an action would lie against an administrator for funeral expenses, though money so paid was not strictly a debt from the deceased; and inTugwell v. Hayman, 3 Camp., 298, which was an action against an executor for funeral expenses when the defendants had given no orders whatsoever respecting the funeral, LORD ELLENBOROUGH in his opinion held that the defendants were liable in the action, and said "it was their duty to see that the deceased was decently interred; (161) and the law allows them the reasonable expense of doing so above all other debts and charges. It is not pretended that they ordered any one else to furnish the funeral, and the dead body could not remain on the surface of the earth. It became necessary that some one should see it consigned to the grave, and I think the executors having sufficient assets, are liable for the expense thus incurred."

If the administrator then may be sued for funeral expenses in his representative character, and the judgment against him would be de bonistestatoris, as it must be in every case where he has sufficient assets, because these expenses are a charge upon the assets, it must follow as a legal corollary that the same may be pleaded as a counterclaim or set off to an action brought by him in his representative capacity for a debt due to his intestate. For a counterclaim is defined to be, "such a demand as will enable the defendant to bring a suit upon it. It must constitute a cause of action in the defendant against the plaintiff to the record, independent of the plaintiff's cause of action and which would entitle the defendant to maintain an action against the plaintiff, if the plaintiff had brought no suit against the defendant." Waterman on Set-Off, etc., page 9 and note.

In Massachusetts it has been expressly held, that in an action by an administrator to recover a debt due to his intestate, the defendant may file in set-off a demand for money paid by him to defray the funeral expenses of the deceased. Adams v. Betts, 16 Pick., 343. In this state it has been held, where a creditor of one deceased, by note, (there being no other debt of equal or higher dignity) became purchaser at a sale by the administratrix, and gave bond on that account in less than the amount of his claim, and this bond constituted the whole assets of the estate; after the bond became due the administratrix, who with her sureties was then insolvent, assigned it by (162) indorsement for value to one who was to a small amount creditor of the estate by account; that a creditor by note was entitled to bring in his debt as a counterclaim against an action upon his bond, whether by the administratrix or her assignee. Ransom v.McClees, 64 N.C. 17.

The plea of counterclaim in our case cannot be obnoxious to the objection that it might change the administration of assets and take from the administrator the right to prefer claims of equal dignity and confer that right upon the creditor, for that right under our statute can no longer be exercised by an administrator where he has sued out letters since July 1st, 1869, and debts of the highest dignity are to be first paid, and all debts of equal dignity are paid pro rata. The funeral expenses are of the highest dignity, except debts which are a specific lien on the property of the deceased, and there is no pretence that there was in this case any such debt.

We are aware it may be made a question whether funeral expenses, not being a debt contracted by either the administrator or his intestate, and not being strictly a contract, can be set up as a counter claim under sub. div. 2, section 101, of the Code, but inasmuch as there is an implied promise by the administrator having assets sufficient to reimburse one who has defrayed such expenses, we are not prepared to say that such a case does not come within the purview of the section; but admitting it may not be pleaded as a counterclaim, we are of the opinion it would be available as a set-off. 1 Tiffany and Smith, p. 379. Adams v. Betts, supra. And this we think should be so upon the reason and convenience of the thing, for since a claim for funeral expenses is a charge upon the assets, why require such a creditor to pay his debt to the administrator and then recover back what is due him?

We do not mean to express the opinion that in this case the defendant should be allowed the full sum of one hundred dollars, but (163) we think, he was entitled to an inquiry before the referee as to the value of the burial case, and to be allowed so much thereof as was suitable to the circumstances of the intestate; and in refusing this we held there was error.

There must be a new trial in this particular. Let this be certified.

Error. Venire de novo.

Cited: Ray v. Honeycutt, 119 N.C. 512.