G. D. Ray & Son Ex Rel. Young v. Honeycutt
26 S.E. 127
N.C.
1896
Check Treatment
ClaeK, J.:

Burial expenses, from the nature of things, are not an indebtedness of the deceased, for they accrue alter his death; nor are they costs of administration incurred by the personal representative ; indeed, they are created before his qualification. Yet, from very necessity, proper funeral expenses are the first charge upon the assets in the hands of the executor or administrator, being preferred at common law (2 Bl., 508) and by our statute (Code, Section 1416) to taxes and debts due the State or sovereign, and to all judgments. “ They bind the assets, independent of any promise by the executor or administrator, to the extent that they are proper to the estate and rank in life of the deceased.” Parker v. Lewis, 13 N. C., 21; Ward v. Jones, 44 N. C., 127 ; Barbee v. Green, 86 N. C., 158. The case of Gregory v. Hooker, 8 N. C., 395, relied on by defendant, is explained by the first two of the cases just cited as holding only that the claimant of a charge for funeral expenses should notify the personal representative before the assets are disbursed and before action brought. In fact, as the authorities state, the funeral expenses are strictly a preferred charge upon the assets in the hands of the personal representatives rather than a debt against the estate. Perley’s Mortuary Law,. 59 and cases cited.

It is well settled that the necessary and proper expenses of interment are a first charge upon the assets in the hands of the personal representative, and the law will imply a promise to him who, from the necessity of the case, for any reason, incurs the expense of a proper burial. McCue v. Garvey, 21 N. Y., 562; Patterson v. Patterson, 59 N. Y., 574; Luess v. Hessen, 13 Daly, 347; Hapgood *513 v. Houghton, 10 Pick., 154. “Nor does the fact that the widow said to a stranger she did not intend any one else to pay the expenses, and that she did it voluntarily, out of respect to her husband, bar her right to recover them,” for this necessary expense devolves upon the assets of the estate, and the law implies the promise to pay them, or to repay the proper person, who, as a matter of affection and dirty, has incurred and paid them. France’s Est., 75 Pa. St., 220 ; Perley’s Mortuary Law, 73. It is not intended, however, to say that any person who intermeddles officiously and incurs such expense can recover. McCue v. Garvey, supra ; Parker v. Lewis, supra.

The judgment binds only the assets in the hands of the administrator as a preferred charge, and is not, of course, a judgment against him personally.

We are not advised why the action is brought in the name of “ Gh D. Ray & Son to the use of Mary E. Young,” but even under the antiquated and obsolete system when that form was in use Mary E. Young would have been the real party plaintiff, and now the rest is to be disregarded as mere surplusage, and she is the only plaintiff, being the real party in interest. Code, Section 177. The Statute of Frauds has no application, for the case does not rest upon any promise by the administrator, nor was it necessary he should agree to pay the claim, if the expense (as is not denied) was suitable and proper.

No Error.