146 Iowa 601 | Iowa | 1910
Lead Opinion
Both husband and wife are dead, the latter first having departed this life, and the sole question presented on this appeal is whether, assuming the estate left by each to be ample to satisfy all claims for the expenses of last sickness and funeral, of the wife, the husband in his lifetime, or the administrator of his estate, may have established in his favor the amount of such expenses as a contingent claim against the estate of the wife. Section 3343 of the Code authorizes the establishment of a contingent liability against the estate of a deceased person, and plaintiff contends that this claim should have been allowed for that, as counsel argue, the deceased wife’s estate is primarily liable therefor, and the liability of the husband or his estate is only secondary. No question is made but that the expenses for hospital and medical attendance constitute a family „ expense which, under section 3165 of the Code, was “chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” As noted in Schrader v. Hoover, 80 Iowa, 243, this statute enlarges the husband’s common-law liability for necessaries, and, as to the creditors, renders the wife equally liable with
At the common law, -every husband was bound to bury his deceased wife in a suitable manner-; that is, he was bound to defray all necessary funeral expenses. Schouler’s Domestic Relations, section 199; Patterson v. Patterson, 59 N. Y. 574 (17 Am. Rep. 384). And notwithstanding the enactment of the married woman’s acts, many courts, in the absence of statutes like that hereinafter referred to, adhere to the doctrine. Thus in Smyley v. Reese, 53 Ala. 90 (25 Am. Rep. 598), the husband as administrator of his wife’s estate claimed credit for her funeral expenses and the erection of a monument marking her last resting place, but the items were rejected because of the husband’s paramount liability -therefor. To the same effect, see In re Weringer's Estate, 100 Cal. 345 (34 Pac. 825); Staple's Appeal, 52 Conn. 425; Gallaway v. Estate of McPherson, 67 Mich. 546 (35 N. W. 114, 11 Am. St. Rep. 596). But where the deceased wife’s will expressly directs the payment of funeral expenses from her estate, the husband is held to be entitled to reimbursement. Willeter v. Dobie, 2 Kay & J. 647; Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399. But for section 3347 of the Code, then, the obligations' of the husband were such that upon payment of the expenses of the last sickness and funeral of his wife unless as administrator of her estate, claim therefor might not be established against her estate. That section provides that, “as soon as the executor or administrator is possessed of suffi
In McClellan v. Filson, 44 Ohio St. 184 (5 N. E. 861, 58 Am. Rep. 814), the court held that a statute directing the payment of funeral expenses out of the estate applied to the estates of married women and like rulings are found elsewhere. Buxton v. Barrett, 14 R. I. 40; Carpenter v. Hazelrigg, 103 Ky. 538 (45 S. W. 666); Schneider v. Breiers, 129 Wis. 446 (109 N. W. 99, 6 L. R. A. (N. S.) 917). While in England the law cast on the husband the duty of burying his deceased wife, this was not always at his own expense. In re McMyn, 33 Ch. D. 575, the wife was engaged in a separate business, and by will left her husband a legacy and named him as executor, but made no provision for funeral expenses. The court, speaking through Chitty, J., said that: “In most cases, the husband takes all his wife’s personal property by reducing it into possession during his lifetime. To call upon him out of his own moneys in a case like the present, where the wife exercised the power of appointment and made the fund general assets for her creditors, but has omitted to mention her funeral expenses, would be too hard. I think therefore the husband is entitled to retain the sums expended for her .funeral.” This would seem to hold that the interest of the husband in the wife’s property may have had something to do in fixing the husband’s liability, but in Gould v. Moulahan, 53 N. J. Eq. 341 (33 Atl. 483), wherein the court held the wife’s
In Moulton v. Smith, 16 R. I. 126 (12 Atl. 891, 27 Am. St. Rep. 728), the husband was administrator of his deceased wife’s estate, and as such paid the expenses of funeral .and last sickness. Upon his death, the administrator of his estate presented a claim therefor and expenses of administration, and the court held that though the husband was entitled to settle the estate as if no such relation existed, and if he so elected to pay therefor from the funds of the estate, but as she might not contract a debt, being covert, for physician’s services, claim therefor was held not allowable. In Towery v. McGaw, 56 S. W. (Ky.) 727, the husband as administrator was allowed a credit for moneys paid out of his wife’s estate for funeral expenses, but the hospital expenses of her last sickness were held to be “necessaries” within the statute of the state for which he was liable and not a proper credit. These decisions were independent of statutory provisions like those of this state but in Constantinides v. Walsh, 146 Mass. 281 (15 N. E. 631, 4 Am. St. Rep. 311) the precise question before us was under consideration. The wife had died possessed of a separate estate and left a will naming her son executor. The husband, without knowing this paid for her necessary funeral expenses, and, his claim against her estate therefor was allowed. The statutes of Massachusetts, though in different language, are in substance like those of this state in directing that, “when a person dies possessed of personal ' estate, the necessary expenses of his funeral and last sickness and charges of administration” be first paid, and the court, speaking
“There is no technical difficulty in a husband’s imposing a liability upon his wife’s executor after her death. It was the plaintiffs legal duty to do what he did, nevertheless, we are of opinion that he stood on no worse ground than a stranger would have done. A stranger could have recovered against the estate of a man, if he was justified in intermeddling. Sweeney v. Muldoon, 139 Mass. 304, 306 (31 N. E. 720, 52 Am. Rep. 708). And formerly, in the case of a married woman, he could have recovered against her husband. Lakin v. Ames, 10 Cush. (Mass.) 198, 221; Weld v. Walker, 130 Mass. 422, 423 (39 Am. Rep. 465); Bradshaw v. Beard, 12 Com. B., N. S. 344. Undoubtedly h'e could now recover against her estate. If so, the husband can.” The statute quoted makes it obligatory on executors and administrators of estates having sufficient means to meet both the charges of the last sickness and of the funeral of a deceased person. Neither necessarily depends on the contract of deceased or others but may rest on this statute. While the expenses of last
Dissenting Opinion
(dissenting). — Notwithstanding statutory provisions enabling married women to enter into contracts and hold property in their own right, and authorizing the enforcement of claims against their estates to the same extent and in the same manner as claims may be enforced against the estates of men and of single women, it certainly remains true in this state, as generaly elsewhere, that the husband is liable for expenses - of the last sickness of his wife and the expenses of the burial of her body after her death. Such liability exists without specific statutory provision. Gould v. Moulahan, 53 N. J. Eq. 341 (33 Atl. 483); McClellan v. Filson, 44 Ohio St. 184 (5 N. E. 861, 58 Am. Rep. 814); Smyley v. Reese, 53 Ala. 89 (25 Am. Rep. 598); 21 Cyc. 1233. The common-law liabilities of the husband are not superseded by statutes enlarging the liability of the 'wife and her estate. Vose v. Myott, 141 Iowa, 506. The result of making the estate of the wife liable is to create a double liability; that is, to afford the creditor a right of recovery either against the husband or against the estate of the wife as he may elect. It is no ground for refusing payment from the estate of the wife that the husband is liable, nor, on the other hand, is the husband excused from payment on account of the liability of the wife’s estate. See McClellan v. Filson and Smyley v. Reese, supra, and Schneider v. Estate of Breier, 129 Wis. 446 (109 N. W. 99, 6 L. R. A. (N. S.) 917). In none of these cases is it intimated, much less decided, that the husband’s liability becomes secondary because the claim is made a valid charge against the estate of the wife. Where the husband paid the expenses of the last sickness he was held not entitled to make a claim therefor against the estate of his deceased wife for the amount, although under her will he subsequently qualified as her executor. Towery v. McGaw, (Ky. App.) 56 S. W. 727. Not inconsistent with the theory of double liability are the cases holding
In view of these well-settled principles, there is nothing to sustain appellant’s contention, unless the language of Code, sections 3347, 3348, declaring that the executor or administrator of the estate of a deceased person shall pay the charges of the last sickness and funeral of the deceased before the estate shall be subjected to the payment of debts is to be given that effect. • We see nothing in the language of these sections to indicate any purpose on the part of the Legislathre to declare a priority of liability on the part of the estate of the wife and make that estate the primary fund for the payment of such expenses, leaving the husband or his estate only secondarily liable. The evident purpose of this statutory provision is to prefer claims which may be presented for expenses of last sick
The only case supporting the view of the majority that the purpose of the Legislature was to fix the liability of the wife’s estate so that the husband would be. relieved from such liability is that of Constantinides v. Walsh, 146 Mass. 281 (15 N. E. 631, 4 Am. St. Rep. 311). As applied to our statutes, the reasoning of that case is not to my mind persuasive, and I am not willing to follow it. The question is one of construction as to the effect of our statute, and I am unable to give to it the construction indicated in the majority opinion. Such a construction would, in my judgment, introduce a new rule in actions brought by the husband for injuries causing the death of the wife. If the estate of the wife is primarily liable for expenses of last sickness and funeral, then the husband could not recover these in an action for injuries causing her death, and yet we have expressly held in Mowry v. Chaney, 43 Iowa, 609, that in an action by the'husband expenses made necessary by the injury to the wife resulting in her death may be recovered, it is only injury to the wife’s estate which may be recovered in an action by her administrator. In an action by the wife for injuries received, she is not entitled to recover expenses of medical services not previously paid or agreed to be by her. Elenz v. Conrad, 115 Iowa, 183. The adoption of the rule stated by the majority will, as it seems to me, introduce confusion in determining what damages are recoverable in an action by the administrator of the wife’s estate. I am not- contending that it would be unreasonable„
The substantial ground, however, for my inability to agree with the views of the majority is that at common law, and under our statute relating to family expenses, there is a direct and primary obligation resting on the husband to make payment, and that there is no purpose inferable from the provisions of Code, sections 3347, 3348,' to relieve the husband from this liability. The estate of the wife is no doubt also liable, but I see no purpose to allow the husband or his estate to cast such liability on the wife’s estate if the husband or his estate should be charged. I think, therefore, that the decision of the lower court should be affirmed.