172 N.E. 421 | Ohio Ct. App. | 1929
The suit which this proceeding in error brings up for review was by an undertaker for funeral expenses incident to the burial of defendant's wife.
The main question, and the only one of sufficient importance to deserve space in a judicial opinion, is whether, when the wife leaves an estate sufficient to pay her funeral expenses, and by a will duly probated directs that her funeral expenses be paid out of her estate, the surviving husband is liable for the funeral expenses.
No reported case in Ohio presents facts which raise the precise question; but it was held in Humphrey Son v. Huff,
The case of Eveland Motsinger v. Sherman, 21 O.D., N.P., 726, 9 N.P. (N.S.), 617, decided that, where husband and wife were living separate and apart, and an allowance had been made to her of alimony pending suit, recovery could be had from the surviving husband for her funeral expenses.
It is so well settled as to require no citation of authority that at common law the surviving husband was primarily liable for the funeral expenses of his wife, and such is still the law unless the statutes altering the status of married women as regards their rights and obligations in respect to property have abrogated the rule.
This feature was ably treated in 3 Ohio App., supra, and it was there decided that no such abrogation had been made. We fully sanction that holding.
The case of McClellan v. Filson,
Whether, under facts such as those existing in the case before us, there could be a recovery by the husband from the estate of his wife, after payment by him, we do not discuss, but will merely refer to two cases directly in conflict, namely, Phillips
v. Tolerton, Exr., 9 N.P. (N.S.), 565, 20 O.D., N.P., 249, affirmed by the Circuit Court on the reasoning in the opinion of the trial court, which judgment of affirmance was affirmed in
We hold that the common-law liability of the surviving husband continues to exist, and therefore plaintiff was entitled to the judgment in his favor for the articles and services he furnished for the wife's burial.
Judgment affirmed.
HUGHES and JUSTICE, JJ., concur. *405