3 Rawle 300 | Pa. | 1832
In this case there was a general demurrer to the evidence of the plaintiff. The court sustained the demurrer, and gave judgment for the defendant; in which it is now alleged, the. court erred. The single and only question in this case, which is presented for our determination, is, whether the estate of a testator is liable for the funeral expenses of his widow. . The counsel for the plaintiff admits that the bequest made by Frederick Kreidler, deceased, to Barbara, his widow, was in lieu of dower; and that she elected to take the same in lieu of her dower at common law. They however contend, that the annuity and other bequests to her were entirely inadequate to her support after she became old and helpless, and that she must either have suffered from want, or have become a charge upon the township, if She had not been assisted by her daughter, the plaintiff, who after suit brought, intermarried with William H. Lawall. This allegation is not justified by the evidence; for a short time previous to her death she indorsed a note to Christina, the plaintiff, for ninety dollars with some interest due thereon; and she then told the person, who wrote her name on the note, and witnessed it, that “she was willing Christina should have the note ; that she had had a great deal of trouble with her; that Conrad had threatened to sell her lot, and that she might have that to help herself.” She was therefore not so destitute of the means of supporting herself, as the counsel have represented. Neither were the provisions made by the will entirely inadequate to her support, for if so, she certainly would not have been able to put out ninety dollars upon interest; and to have continued it upon interest until a short time previous to her death, when she thought proper to transfer it to Christina as much with a view of preventing Conrad from taking the lot from- her, as it was to compensate her for any trouble, which she may have had with her. But admitting that she was as necessitous as has been represented, even a very pauper, would the estate of the testator be liable to maintain her, and to defray the expenses of her funeral ? The plaintiff contends, that it would, and relies on the isolated case of Bertie v. Ld. Chesterfield, reported in 9 Mod. 30, 31. In that case, it was decided by the Master of the Rolls, that the estate of the husband in the hands of the devisee is liable for the funeral expenses of the testator’s wife, although she lived apart from him on a separate maintenance. It was suggested in the bill, but not proved, that the plaintiff Mr. Bertie was requested by the late Earl of Caernarvan to see his lady buried. The Earl of Caernarvan had devised six hundred pounds per annum to Lord Chesterfield, subject to the payment of his debts. His lady had power to dispose of her separate- maintenance by will; and she accordingly made a will, and constituted the plaintiff executor thereof; by which will she gave away more than she had to dispose of. It was decreed, that because the plaintiff took nothing of her estate by being made executor, (for she gave away the
only provisions our in to subject are to be found in the 30th section of the act of 1771, (Purd. Dig. 724,) and the 6th section of the act of 1812, (Purd. Dig. 742,) and also in the 4th section of the act of 1718, (Purd. Dig. 328.) The provisions of the act of 1771, and those of the act of 1812, may be considered as similar, so far as they have any bearing upon the present question. They provide for cases, where husbands, who have estates which should contribute to the maintenance of their wives or children, desert them and leave them a charge upon the city, borough, or township. In such cases, authority, is given to the overseers of the. poor, after having obtained a warrant or order from two magistrates, to seize so much of the goods and chattels, and also to receive so much of the annual rents and profits of the lands and tenements of such husband, &c. as such two magistrates shall direct for the maintenance of such wife, &c. which order being confirmed at the next court of quarter sessions, it shall be lawful for the justices of the said court to make an order for the overseers to dispose of so much of the goods and chattels as the said justices shall think necessary ; and also to receive so much of the rents and profits of the lands, &c. as shall be ordered by the said justices. Whether the sequestration of the husband’s goods and chattels, and the rents and profits of his real estate so authorised to be made, would continue longer than the husband’s life, is a question not presented by the case under consideration for our adjudication. I express no opinion about it. There is, indeed, nothing in these acts, which can render the estate of the husband after his decease, liable to pay the funeral expenses of his widow. The act of 1718 has reference only to mariners and sea-faring men, remaining away beyond a limited time, and has no relevancy to the case under consideration.
At the time of the decree in Bertie v. Lord Chesterfield, a woman living apart from her husband on a separate maintenance and contracting debts, could not be compelled to pay those debts out of her separate maintenance; the provision for her separate maintenance was exempted from their payment. But the law has since undergone a change on this subject; and her debts have been decreed to be paid out of her separate maintenance. It has even been doubted whether her separate maintenance is not liable for her funeral expenses. See Mr. Jacob’s Note to 2 Ross, on Leg. 245, London Edit, 1826.
There is no error in the judgment of the court below, and it must be affirmed.
Judgment affirmed.