135 Va. 384 | Va. | 1923
Lead Opinion
delivered the opinion of the court.
“Reimbursement of Husband for Wife's Funeral Expenses.—Where a married woman by her will expressly charges her separate estate with the payment of her funeral expenses, the husband is entitled to reimbursement from such estate in case he has paid such charge. (In re Skillman, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295. Notes: 33 L. R. A. 662; 37 L. R. A. [N. S.] 755.) In some jurisdictions the view is taken that although that by the statute a married woman is entitled to the exclusive use and ownership of her separate property, free from any claim or control of her husband, and the husband is not liable for her debts contracted before marriage, yet the husband, as at common law, is bound to pay the wife’s funeral expenses, and cannot claim reimbursement therefor out of her estate. (Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Kenyon v. Brightwell, 120 Ga. 606, 48 S. E. 124, 1 Ann. Cas. 169; Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409, 37 L.
“Irrespective of the duty of a husband to bury his deceased wife and the primary obligation to pay such expenses as between the husband and wife’s estate, the necessary funeral expenses of a married woman is a proper charge against her estate, for which her executor or administrator, if paid by him, is entitled to credit on
A careful consideration of the cases cited leads to the conclusion that we cannot simply choose between the holdings of different courts, but must construe our own statutes on the subject, and that but little assistance can be gotten from a review of the facts of cases in other jurisdictions and the holdings thereon, especially as many of the cases do not recite the statutes under which the decisions were rendered. Some of them, however, do, and these serve to illustrate the reason for the difference in the conclusions reached. For instance, the Iowa court (In re Skillman, supra) puts expenses of last illness on the same footing with funeral expenses because the statute does-so, while the Rhode Island court (Moulton v. Smith, supra), under the statute of that State, declares that the expenses of the last illness of the wife is a debt of the husband which cannot be charged to the estate of the wife, because not within the statute providing for the payment of funeral expenses.
Section 5390 of the Code deals with the liability of the personal estate of a decedent in the hands of a personal representative and in effect declares that no part of such estate shall be applied to his debts until the costs of administration of his estate and his funeral expenses have been paid. Section 5275 relates to the distribution of the personal estate of an intestate and in effect declares that there shall be no distribution of such estate until after the costs of administration, funeral expenses and debts of the decedent have been paid. Section 5395 declares that real estate of an intestate “shall be assets for the payment of decedent’s debts and all lawful demands against his estate in the order in which the personal estate of a decedent is directed to be applied.”
At common law a married woman could neither contract nor be contracted with, nor sue nor be sued, but equity violated the laws of property, as between husband and wife, and allowed her to own property even in fee; and, as one of the incidents of such an estate was the power of alienation and liability for debts, and this might be destructive of the estate in the hands of one incapable of managing it, equity again interfered, and, by another violation of the laws of property, supported the validity of the prohibition against alienation or encumbrance. Tullett v. Armstrong, 4 My. & Cr. 377, 18 Eng. Ch. 405; Nixon v. Rose, 12 Gratt. (53 Va.) 425. It was entirely competent, therefore, for the legislature to remove the disability of married women in whole or in part, and to define her powers with reference to property of all kinds, to ascertain the rights of the husband, if any, therein, and the liability of the property to claims against the wife. This the legislature has done, and so
If we turn to the section quoted in the margin, which is now, with some modifications, section 5134 of the Code, we find that the husband cannot be deprived of his curtesy in his wife’s real estate acquired or held under the statute, if the common law requisites therefor exist, but neither tenancy by curtesy initiate nor by the marital right “shall entitle him to the possession or use, or to the rents, issues and profits of said real estate during the coverture, nor shall the property of the wife be subject to the debts or liabilities of the husband.” On .the other hand, the husband is not responsible “for any contract, liability or tort of his wife.” Each is exempt from the liabilities of the other.
We express no opinion as to the liability of the estate of Mrs. Stewart for her funeral expenses to the persons furnishing them, if they had asserted their claims against her estate, for that question is not before us. But there was a common law liability on her husband for these expenses, the credit was extended to him, and he paid the debt, and we are of opinion that he cannot recover back the amount from his wife’s estate. The
For the reasons stated, we are of opinion that so much of the decree appealed from as directs the payment to the appellee, C. W. Stewart, of the sum of
Reversed.
‘•‘1. * * _a married woman shall have the rignt to acquire, held, use, control, and dispose of property, as if site were unmarried, and sucli power of use, control and disposition shall apply to all property of a married woman heretofore or hereaxter acquired: provided, however, that her husband shall be entitled to curtesy in her real estate when the common law requisites therefor exist, and he shall not be deprived thereof by her sole act; but the right to curtesy shall not entitle him to the possession or use, or to the rents, issues and profits of said real estate during the coverture, nor shall the property ot the wife be subject to the debts or liabilities of the husband.
“2. A married woman may contract and be contracted with, sue and be sued, in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by or against her shall have accrued before or alter the passage of this act.
‘ ‘3. A husband shall not be responsible for any contract, liability, or tort of his wife, whether the contract or liability was incurred or the tort was committed before or after marriage.”
Dissenting Opinion
dissenting:
I find myself unable to concur in the majority opinion of Judge Burks in this case.
.Only one question is to be decided: Is the separate estate of a deceased wife chargeable with her funeral expenses, hospital, nurse’s and doctor’s bills incurred during her last illness; and when paid by her husband can he prove the same as a debt against her estate?
Under the Virginia statute, a married woman has the right to acquire, hold, use, control and dispose of property as if she were unmarried, subject to her husband’s right of curtesy in her real estate. She may also contract and be contracted with, sue and be sued, in the same manner and with the same consequences as if she were unmarried.
The statute, section 5390, Code of 1919, providing the order in which the assets of the decedent’s estate in the hands of his personal representative shall be applied to the satisfaction of the demands against him, after the payment of the funeral expenses and charges of administration, also gives a prior lien on such assets for the claims of physicians, druggists, nurses, hospitals and sanitariums, for articles furnished and services rendered during the last illness of the decedent. The statute reads as follows:
“When the assets of the decedent in the hands of his*395 personal representative, after the payment of funeral expenses and charges of administration, are not sufficient for the satisfaction of all demands against him, they shall be applied:
“First: To the claims of physicians, not exceeding fifty dollars for services rendered during the last illness of the decedent; and accounts of druggists, not exceeding the same amount, for articles furnished during the same period; and claims of professional nurses, or other person rendering service as nurse to the decedent, at his request or the request of some member of his immediate family, not exceeding the same amount, for services rendered during the same period; and accounts of hospitals and sanitariums, not exceeding the same amount, for articles furnished and services rendered during the same period.” (Italics supplied.)
It is a familiar rule of construction, supported by authority and reason, that common words are to be extended to all the objects which, in their usual acceptance, they describe and denote. The language of the statute, section 5390, supra, is so plain and unequivocal as not to be susceptible of more than one construction. It contains no exception and clearly contemplates and includes all decedents who die leaving assets, without regard to their race or sex, whether married or single. To hold that the statute does not apply to the estate of a married woman might, where the husband was hopelessly insolvent, leave her body upon the charity of some friend or the public, and even though she left a large estate, deprive her of a funeral and burial such as are usually accorded persons of her station and condition in life. Such a situation would offend a benevolent public sentiment.
The declaration in the majority opinion that because section 5264 of the Code, by which the undivided one-
Under section 5395, Code 1919, all real estate of any person, as to which he may die intestate, is made assets for the payment of the decedent’s debts and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied. There can be no question that this statute applies to the real estate of married women, as the term “any person” necessarily includes women. This section is in no way qualified by section 5138, Code 1919. And it cannot be said that the funeral expenses of a married woman are never a “lawful demand” against her estate.
The statute, section 5275, Code 1919, provides as follows: “When any person shall die intestate as to his personal estate, or any part thereof, the surplus * * * after the payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons * &c. (Italics supplied.)
Section 5138 of chapter 207 provides that “When a married woman, having title to any estate, dies intestate, as to the said estate, or any part thereof, it, or such part, shall pass according to the provisions of chapter 21S, subject to her debts and to the curtesy of her husband, should he survive her.” (Italics supplied.) Chapter 213 contains, section 5273, supra, which provides that the surplus, after the payment of funeral expenses, charges of administration and debts, shall pass to and be distributed among the heirs of the decedent. It
The married woman’s act is invoked by the majority opinion to sustain the position that a married woman’s estate cannot be required to reimburse her husband, for the amount expended by him inher funeral expenses, be-' cause it provides that the property of the wife shall “not be subject to the debts or liabilities of the husband. This act became a law on April 4, 1877, and was amended by an act approved March 7, 1900. Section 5390 was amended and re-enacted by an act approved December 12, 1903. Wherever there is any conflict between two statutes, the last enactment prevails. .
In construing a statute the court should be alert to construe it in the fight of new circumstances and conditions in the progress of the State and its laws. The provisions of section 5390 should not be construed in the fight of the ancient common law by which a married woman could not contract, nor by the common law as modified by the courts of equity, but rather in the fight of recent constitutional and legislative enactments by which she is given practically every personal and property right enjoyed by men. When so construed it seems to me clear, as will hereinafter appear, that under section 5390, supra, the estate of a married woman is liable for her funeral expenses even though under the common law rule the husband is still liable to the party actually providing a suitable burial for his wife. When her estate pays her funeral expenses to the husband it is in discharge of a liability against her estate and not of his debt or liability.
A husband is bound to support his wife. This is his legal duty, independent of any separate estate which she may possess. Mihalcoe v. Holub, 130 Ya. 429, 107 S. E. 704. To parties who furnish attention to a wife during her last illness, and provide suitable burial for her, the husband is still liable, as at common law, notwithstanding the married woman’s act, for the services rendered in that behalf. .But the statute, section 5390, creates a first lien on the estate of the wife for the payment of her funeral expenses, regardless of who incurred these expenses. Section 5273, supra, does not authorize the court, or the personal representative, to pay to the heirs of the decedent the money necessary to defray the funeral expenses, charges of administration and debts, nor does it pass to the heirs under the statute; and the husband having paid the same, may recover the amount from her estate. Briefly expressed, the parties furnishing the services in question may look to the wife’s estate or the husband, or both, for payment of the amounts due them. As between the husband and her distributees and heirs, who claim the wife’s separate estate at her death, her separate estate is primarily liable.
The question w.e are deciding is of first impression in Virginia, but has been passed upon in several other States. In those jurisdictions the authorities are in conflict. The better reason and weight of authority are in accord with the trend of recent legislation and with the views I have herein expressed.
In Bowen v. Daugherty, et al., 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161, relied on with so much confidence by the appellant, involving the payment of the wife’s funeral and burial expenses, tombstone, doctor’s bills and nursing during last illness, Judge Hoke, speaking for the majority of the court, said: “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., out of the wife’s estate; citing the cases relied on in this opinion. Judge Hoke then adds: “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, section 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.” (Italics supplied.)
“87. Order of payment.—The debts of the decedent must be paid in the following order:
“First class. Debts which by law have a specific lien on property to an amount not exceeding the value of such property.
“Second class. Funeral expénses.
“Third class. Taxes assessed on the estaje of the deceased previous to his death.
“Fourth class. Dues to the United States and to the State of North Carolina.
“Fifth class. Judgments of any court of competent jurisdiction within this State, docketed and in force, to the extent to which they are a lien on the property of the deceased at his death. -
“Sixth class. Wages due to any domestic servant or mechanical or agricultural laborer employed by the deceased, which claim for wages shall not extend to a period of more than one year next preceding the death; or if such servant or laborer was employed for the year current at the decease, then from the time of such employment; for medical services within the twelve months preceding the decease.
“Seventh class. All other debts and demands.”
North Carolina has no statute similar to section 5273, supra. Her statute on the distribution of personal estates of decedents (Revisal 1905, section 132), simply provides that “The surplus of the estate, in case of intestacy, shall be distributed in the following manner,” etc., without stating of what the surplus consists. Had the North Carolina statutes contained the identical language of the Virginia statutes, supra, I think it can be inferred that Judge Hoke’s conclusions would have been in accord with the views expressed in this opinion.
In Schneider v. Estate of Anna Selma Breier, 129 Wis. 446, 109 N. W. 99, 6 L. R. A. (N. S.) 917, the Wisconsin Supreme Court says: “It seems well settled that estates of deceased persons are liable for funeral expenses such as are usually adopted for persons of like rank and condition in society (2 Woerner’s Am. Law of Administration, sections 357, 359; Sehouler Ex’ors, section 421), and this rule applies to married women leaving sepárate estates to be administered. The liability of the estate in such cases does not rest upon contract relation, but upon a charge which the law imposes upon the estate.” A suitable tombstone for the grave of the deceased would be regarded as a part of the burial expenses in such cases.
In 21 Cyc. at page 449, we find the law stated thus: “The weight of authority, nevertheless, under the married woman’s acts, holds that the estate of the wife who dies leaving separate property is primarily liable for her funeral expenses and that the husband, having paid the same, may recover from such estate.” (Citing cases from Ohio, Mass., N. Y., R. I., and Canada.)
In Morissey v. Mulhern, 168 Mass. 412, 47 N. E. 407, the Supreme Court of Massachusetts says: “The estate of a married woman who died leaving property is primarily liable for her funeral expenses, and her husband who paid them may recover them from her executor.”
In In re Stadtmuller, 96 N. Y. Supp. 1101, 110 App. Div. 76, the New York court declared the law to be that “The separate estate of a wife is hable for her fune
In the case of Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311, the Supreme Court of Massachusetts says: “The funeral expenses of the decedent were a preferred eharge upon her estate. Under these statutes (those making such debts preferred charges) and those establishing the independent position 'of married women with regard to their property,, we think that, as between the estate of a married woman leaving property and her husband, the liability of the-estate must be regarded-as primary, and that it would-be unreasonable to charge the husband for the funeral, expenses, in all events, as necessaries irrespective of any fault on his part. If then it was still, as formerly, the» plaintiff’s legal duty to see that his wife was buried, but-her estate was primarily liable, he is entitled to recover his reasonable expenditures as in other eases when a-person has paid in pursuance of a legal duty what, as-between himself and another, that other was bound to» pay. * * * If it were not the plaintiff’s legal duty to do what he did, nevertheless, we are of the opinion that he stood on no worse ground than a stranger.. Undoubtedly he (a stranger) could recover against her estate. If so, the husband can.”
In Estate of Skillman, 146 Iowa 601, 125 N. W. 343, 140 Am. St. Rep. 295, a case very similar to the case in judgment, the Iowa Supreme Court declared the law as-follows: “The statute quoted (making such expenses, charges on the estate of the deceased) makes it obliga
The rule of the common law requiring the husband to maintain and support his wife, independent of any separate estate possessed by her, was for her comfort and protection, and I have said nothing which relieves the .husband of this duty, at the wife’s expense; for, at her death, the question, in its-last analysis, is not whether the wife shall pay a debt which her husband ought to ;pay, but whether the court or the personal representative shall distribute among her heirs, as surplus, money which the Virginia statute says shall be used in the pay
For the foregoing reasons, so much of the decree complained of as directs the payment to the appellee, C. W. Stewart, of the sum of $245.00 for the expenses of the burial of his wife, Minnie B. Stewart, in my opinion is plainly right and should be affirmed.
Prentis, J., concurs in this dissent.
