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

I concur in that part of the opinion holding that the husband is liable for the expense of the last sickness of his wife paid by him. I dissent as to that part of the opinion holding that the husband is not liable for reasonable funeral expenses of his deceased wife.

It was stipulated and agreed that the husband in the case at bar had ample means to pay the funeral expenses of his deceased wife. In the case at bar the husband paid the funeral expenses of his wife, fixed the amount of the obligation, and now files a claim against the estate of his deceased wife to be reimbursed for the amount expended by him to pay the expense of the burial of his wife.

The Supreme Court of California, in the case of Brezzo v. Brangero, 196 P. 87, at 88, in reviewing the authorities, said:

"Upon a further consideration of the question and an examination of additional authorities bearing on the matter, we have reached the conclusion that the lower court was right in denying the defendant any set-off against the estate for the amount expended by him in payment of the funeral expenses of his deceased wife. If, as was the case in Re Estate of Mathewson (Sup.) 184 P. 867, the husband does not have sufficient income to pay the funeral expenses of the deceased wife, it may be proper under some circumstances, as indicated in that decision, to make an allowance to the husband for such purpose. But here the court found that the defendant, the surviving husband of Margherita Brangero, deceased was financially able to pay the funeral expenses out of his own property and estate, without the necessity of any recourse to the moneys of the deceased wife. Consequently he was bound to bury the deceased wife in a suitable manner, and to defray the necessary funeral expenses. In re Weringer, 100 Cal. 345, 34 P. 825."

There is no statute in Oklahoma on this proposition. The common law is settled and very definitely supports the position of appellees. What is the view of the majority of the courts passing on this proposition? The text at page 1500 of volume 31 American Law Reports says:

" 'The doctrine obtaining in the majority of jurisdictions is that the duty of paying the funeral expense of a married woman devolves on her husband, and that her separate estate is not liable therefor; the holding to that effect being based either wholly on the common law or on the view that the local statutes do not abrogate the common-law rule.' The note then cites cases from Alabama, Arkansas, California, Connecticut, Georgia, Illinois, Indiana, Kentucky, Maryland, New Jersey, Michigan, North Carolina, Pennsylvania, England and Canada."

Here the husband wanted to charge to the wife's estate the expense of her illness, her doctor bills, her nurse hire, and also the expense of a proper funeral. I am of the opinion, since the facts show that he was able to pay the expense of the burial of his wife, that it is a legal obligation as well as a moral obligation that he should be required to perform.

As far back as the trained eye of the student may penetrate the dimness which time spreads like a mist over the past, it would seem that mankind, with one accord, has been fond of giving those loved ones who passed on before him a proper resting place, that their memory might be preserved as a comfort and pleasure throughout the remaining life of the survivor. One of the earliest records of this desire of man to properly bury his wife at his own expense is found in the 23rd Chapter of Genesis:

"1. And Sarah was an hundred and seven and twenty years old: these were the years of the life of Sarah.

"2. And Sarah died in Kirjatharba: the same is Hebron in the land of Canaan; and Abraham came to mourn for Sarah, and to weep for her."

And Abraham said unto the sons of Heth, I am a stranger and a sojourner with you; give me a possession of a burying place. And the children of Heth answered, thou art a mighty prince among us; in the choice of our sepulchres bury thy dead. And Abraham replied that he wanted the cave of Mach pelah which is in the end of his field for as much money as it is worth. And the Hittite answered, the field I give thee and the cave that is therein I give thee. And Abraham answered, I will give thee money for the field, take it of me, and I will bury my dead there. And Ephron answered, the land is worth four hundred shekels of silver; what is that betwixt me and thee? Therefore bury thy dead. And Abraham weighed to Ephron the silver, four hundred shekels of silver, current money with the merchant. And the field of Ephron and the cave which was therein and all the trees that were in the field, that were in all the borders round about, were made sure to Abraham for a possession. And after this, Abraham buried Sarah his wife in the cave in the field in the land of Canaan. Here, from the earliest dawn of time civilized men, to the present day, have felt it a moral and a legal duty to bury their wives as befits their station in life.

I know nothing, either legal or moral, that relieves the husband of this duty where the record discloses, as it does here, that he has ample means to provide such burial. Abraham refused a free burial place for Sarah and insisted that he bear the expense of preparing the last resting place for his beloved companion.

This, in my opinion, is a good precedent for this court to follow, in addition to the modern authorities cited herein.

Note. — See under (1) annotation in 47 L. R. A. (N. S.) 283; 31 A. L. R. 1499; 11 R. C. L. 225, 226.