Bowen v. . Daugherty

Hoke, J.,

after stating tbe case: At common law tbe busband was liable for tbe funeral expenses of bis deceased wife and for “necessaries” during tbeir married life; tbe term including “tbe cost of clothing, food, ordinary household supplies, medical attendance, expenses of sickness, etc., as well as articles of comfort suitable to tbe condition and style in which tbe parties were accustomed to live.” Smyley v. Reese, 53 Ala., 89; Kethrer v. Nelson, 146 Ky., 7; Estate of Eva Walsch, decd., 166 Pa. St., 204; Cunningham, v. Erwin, 7 Leary and Rawle, 247; Sears v. Giddy, 41 Mich., 590; Stonesifer v. Shriver, 100 Md., 854; 21 Cyc., pp. 1219-1224.

As a general rule, neither tbe wife nor her estate was legally liable for such claims, though courts, empowered to administer her estate on equitable principles, have enforced them in certain instances (In re McMyne, L. R., 1886, Oban. Div., 575), a position which has been allowed to obtain, in this country, where the husband has failed to pay and, being insolvent, payment from him or his estate could not be enforced. Carpenter v. Hazelrig, 103 Ky., 538; Gould v. Moulahan, 53 N. J. Eq., 341; Fogg v. Holhook, 88 Me., 169-80; 33 L. R. A., 660, and note.

This being the law formerly existent here, the Legislature enacted the statute known as the Martin act (ch. 109, Laws 1911) and which provided, in effect, that except in conveyances of her real estate and in case of contracts with her husband, a married woman was authorized to contract and deal as if she were unmarried; and it is chiefly contended that, under and by virtue of the provision of this statute, the wife and her estate have become absolutely and primarily liable for the claims filed in this proceeding.

The law having removed the inability of married women, in ordinary instances, to bind themselves by contract, they can be held liable under their express agreement and when the goods are sold to them on their credit. This was held in Lipinsky v. Revell, 167 N. C., 508, and undoubtedly in proper instances married women may now be held liable in the common counts in assumpsit. Kinkson v. Williams, 41 N. J. L., 35; Ackley v. Westerfeldt, 86 N. Y., 448; Stewart on Husband and Wife, secs. 375 and 381. But, in the absence of such express promise and of any evidence tending to show that credit was given to her or of any facts or circumstances to make her exclusively or primarily liable under the general equitable principles of indeMtatus assumpsit, we see no reason, before or since the statute, why a debt of the husband should be imputed to the wife. True, the general rule is that when goods are supplied or services rendered by one person for another, the law implies a promise to pay wbat they are reasonably worth; but the principle, in our opinion, should not control when the goods were acquired or services rendered under circumstances which created a recognized liability in some one else. In such case there should be additional proof showing an express promise or, as stated, facts and circumstances bringing the demand under the equitable principles of indebitatus assumpsit. This, we think, is the correct view as to the effect of the statute in such cases, and the position is in accord with authoritative decisions on the subject in other States. Moore v. Copely, 165 Pa. St., 294; Nelson v. Spaulding, 11 Ind. App., 453; Nelson v. O’Neal, 11 Ind. App., 296; Wilson v. Herbert, 41 N. J. L., 243.

We are aware of a number of decisions, and by courts of eminent ability and learning, to- the effect that the estate of the deceased wife is primarily liable on claims of this kind by reason of their statutes as to the proper administration of estates, and which provide, in differing terms, that debts for funeral expenses, medical bills, and services within a stated period, etc., shall be paid, etc. Estate of Skillman, 146 Iowa, 601; Schneider’s Estate v. Briier, 129 Wis., 446; Constantides v. Walsh, 146 Mass., 281; McLellan v. Felson, 44 Ohio St., 184.

It may be that, owing to special phraseology of these statutes, a position of that kind can be upheld, but, so far as our own enactment is concerned (Revisal 1905, sec. 87), we do not hesitate to hold that the statute is only designed to recognize priorities and to establish the order of payment as between claimants who have valid debts against the estate, ' and was never intended by the lawmakers to create a liability which did not otherwise exist.

As heretofore stated, if the husband, liable for indebtedness of this kind, should fail to pay, or, his estate being insolvent, payment could not be enforced, authority is to the effect that an equity might arise to the creditor enabling him to collect from the wife’s estate; but otherwise, and except under conditions formerly referred to, the debt is and continues to be that of the husband and enforcible against him or his estate.

From the case on appeal it appears that all of these claims are for funeral expenses or for necessaries, and that these last were supplied to the wife when she was living with her husband and without any express promise on her part to pay for same, and, further, that the husband died shortly after the wife, leaving an estate sufficient to pay all of his debts, including those involved in this proceeding, and that he devised his property to Kitty Brown for life and, after her death, to her children, she being one of the principal claimants against the wife’s estate. Applying the principles, as above stated, we are of opinion that there was error in holding the' wife’s estate liable, and the judgment to that effect must be

■ Reversed.