In Re Wilson's Estate , 160 Okla. 23 ( 1932 )

This is an appeal from a judgment of the district court of Woods county disallowing certain claims of L.T. Wilson, as administrator of the estate of his deceased spouse, Mary Wilson.

The agreed statement of facts, which is made a part of the record herein, shows that Mary S. Wilson, also referred to herein as Mrs L.T. Wilson, died intestate and without issue, leaving as her heirs at law, her husband, L.T. Wilson, and six brothers and sisters; that L.T. Wilson is the duly appointed and qualified administrator of the estate of the deceased; that both L.T. Wilson and the estate of Mary S. Wilson have ample means to pay the claims in controversy; that those claims consist of the following items:

Casket ____________________________________________ $585.75 Monument $265.00, one-half ________________________ 132.50 Drugs _____________________________________________ 11.00 Medical services in last sickness _________________ 69.00 Nurse hire ________________________________________ 49.00 Digging grave _____________________________________ 12.00 -------- Total $859.25

That all of the claims were duly verified by the claimants, presented to the administrator and allowed by him in full; that they were then presented to the county judge, approved by him and thereafter fully paid by the administrator out of his private funds, and that upon the settlement of the administrator's account the county court disallowed all of the claims. The administrator appealed from the order of the county court to the district court and the district court affirmed the holding of the county court. From that judgment the administrator appealed to this court.

The record presents no question of fact. It presents two questions of law: First, is the solvent estate of a deceased wife liable to the surviving spouse for the amount of the expense of the last sickness of the wife which has been paid by him? and second, is such an estate liable to him for the reasonable amount of the reasonable funeral expense, including a monument, which has been paid by him?

The statutes of Oklahoma applicable to the allowance of claims against the estates of deceased persons are general in their terms and apply as well to the estates of married men and women as to the estates of single men and women. They apply where the surviving spouse is acting as administrator as well as where a stranger is so acting. They provide the order in which the debts of an estate must be paid, and in that order they place funeral expenses first and the expenses of last sickness second. Section 1255, O. S. 1931 (section 1343, C. O. S. 1921). They provide that the administrator must pay the funeral expenses, the expenses of last sickness and the allowance made to the family of the decedent "* * * as soon as he has sufficient funds in his hands, * * *" Section 1258, O. S. 1931 (section 1346, C. O. S. 1921). The erection of a monument is a part of the funeral expense. Van Emon v. Superior Court of Tulare County (Cal.) 18 P. 877; 24 C. J. 308. The force and effect of those statutes is not destroyed by the appointment of the surviving spouse as administrator of the estate, and they are applicable notwithstanding such appointment.

They are likewise applicable though the surviving spouse contracted the indebtedness and paid the amount thereof from his personal funds. The reasonableness of such claims is for the determination of the county court.

It is contended herein that under the provisions of section 1653, O. S. 1931 (section 6607 C. O. S. 1921), the husband must support his wife out of his property or by his labor; that under the provisions of section 1600, O. S. 193.1 (section 6614, C. O. S. 1921), if the husband neglect to make adequate provision for the support of his wife, any other person, in good faith, may supply her with necessities for her support and may recover the reasonable value thereof from the husband, and that under those provisions the items in question here are not proper charges against the estate of the deceased wife.

Those provisions have no application to funeral expense. While the husband may contract for the funeral expense of his deceased wife and be personally liable therefor under his contract, the estate of the deceased wife is likewise liable therefor, and the funeral expense must be paid from that estate if there are sufficient funds therein to pay the amount thereof.

We quote from 24 C. J. 306, as follows:

"The estate of a decedent is liable for the reasonable expenses of his funeral and burial, and this rule is usually considered applicable to the estate of a married woman or an infant"

— and from page 307, as follows:

"Where the representative or a third person has rendered himself liable for the funeral expenses and has been compelled to pay them, or has defrayed such expenses in an emergency and under proper circumstances, he is entitled to reimbursement from the estate so far as the expenditures were reasonable and proper. This rule has been held to permit a husband to be reimbursed from the estate of his deceased wife for her funeral expenses which he paid, notwithstanding his common-law obligation to see to her proper interment; but there is also authority for the view that the husband is not entitled to reimbursement where he was financially able to bury his wife in a suitable manner; and the right of reimbursement is denied where this would operate to the detriment of creditors of the wife."

In Nashville Trust Co. v. Carr (Tenn.) 62 S.W. 204, that court held:

"Funeral expenses, though ordered by the husband of deceased, are chargeable against her estate"

— and said:

"Funeral expenses are an obligation created by law against the estate of a decedent. They are not necessarily matters of contract, though they may be; that is to say, the executor, if there be one, may make a contract, or the husband, if the deceased person has been a wife."

In McCue, Adm'r, v. Garvey, 14 Hun. (N.Y.) 562, that court held:

"A husband, upon the settlement of his accounts, as administrator of the estate of his deceased wife, should be allowed out of her estate for her necessary and proper funeral expenses paid by him."

While that rule is not applicable in all states, it seems to prevail in most of the states having statutes similar to ours. We think that it is applicable under the provisions of our statutes, and that it should be applied in this state.

A different rule is applicable as to the claim for the expense of the last sickness.

In Hayes v. Gill (Mass.) 115 N.E. 492, that court, in considering the question of the payment of indebtedness for last sickness and burial expense, held:

"Where the husband before the wife's death paid all expenses of illness and after her death paid funeral expenses, while subrogated to the rights of the creditors for funeral expenses, he had no claim against the estate for the expenses of the illness."

By the provisions of our statute, the expense of the last sickness of a deceased wife is required to be paid. While the surviving husband is personally liable for them under the statutory provision requiring him to support his wife, the statutes contemplate that one need not look alone to the husband for payment therefor, but that he may look to the estate of the deceased person for the payment thereof. The reason is obvious. A wife, during her last sickness, ought not to be deprived of any reasonable care or attention because of the inability of her husband to furnish the same. A claim for the expense of the last sickness of a wife should be paid from the estate of the deceased wife though the amount so paid is charged against the interest of the surviving spouse in that estate.

In the instant case, the surviving spouse paid the expense of the last sickness and the funeral expense out of his personal funds. He is entitled to have his claim for the funeral expense paid by him allowed and paid from the estate, if that claim is reasonable and just, and his claim for the amount paid by him for the last sickness of his wife should be disallowed.

The judgment of the trial court as to the items of the claim arising out of the last sickness of the deceased is affirmed, and the judgment as to the items of the claim arising out of the funeral expense, including the monument, is reversed. The cause is remanded to the trial court for further proceedings not inconsistent herewith.

LESTER, C. J., and SWINDALL, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., concurs as to expense of last sickness and dissents as to funeral expense. CULLISON, J., concurs as to funeral expense and dissents as to expense of last sickness. RILEY and HEFNER, JJ., absent.