14 N.Y. 574 | NY | 1875
The right to set off unconnected cross demands, it is said, did not exist at common law. (Green v. Farmer, 4 Burr., 2214-2221; but see Eden on Bank., 186.) It was ■created in England by the statutes of 2 George II, chapter 22, and 8 George II, chapter 24. This is mentioned, to point the further mention, that this right is to be limited by the terms of the enactments, as construed and settled by the courts. By those statutes, it was confined to mutual debts existing between the plaintiff and defendant, and, in suits by or against an executor or administrator, to mutual debts between the testator or intestate and either party. And in the construction and application of those acts it was held, jn that country, that if an executor or administrator brought suit upon a debt created against the defendant after the death of the testator or intestate, or upon a debt whereon the cause of action arose after that event, the defendant could not set off a debt which existed and on which there was a cause of action against the
.In this State, there was a statute of set-off before the
Since the adoption of the Bevised Statutes, it has been held that the statute of set-off therein contained is, in substance, the same as the statutes of England, and the statute of this State which went before the Bevised Statutes, (and the appellant concedes it to be so), and the rule which was laid down under them has been adhered to. (Fry v. Evans, 8 Wend., 530; Hills v. Tollman's Administrator, 21 id., 674.) And it has been especially decided that the section of the statute which relates to suits and set-offs by and against executors and administrators (2 R. S., 355, § 23) is simply an enactment of the law as it was previously recognized and applied, and that the principle of the case 20 Johnson’s Reports (supra) is embraced in that section. (Fry v. Evans, supra; Mercein v. Smith, 2 Hill, 210, and see cases there cited in notes b and e; Merritt v. Seaman, 6 Barb., 330; S. C., 6 N. Y., 168; Ketchum v. Milne, Selden’s Notes, No. 3, p. 56.) The case last cited is quite apposite. The claim sued upon was for freight of goods carried by vessel. The intestate was the owner of the vessel, and was master of her for part of the voyage. He died while on the voyage, after the carriage had begun and before it was finished. The contract for carriage had been entered into before his death. After his death, the voyage was completed and the goods delivered to the defend
’ It is seen that the defendant would owe nothing to any one, -if the testator survived the 9th of June, 1875; he would owe one sum if the testator survived the 9th June, 1870, and'a 1 different sum if he did not survive that day. Can it be said of such a liability, that the time of payment was certain, when it was not certain that there would be any payment to make or to be enforced ; or that the demand in action arose in the lifetime of the testator, when, if his life had been prolonged beyond a certain date, there would have been no demand'? There was never a time in the life of the testator, when it ' could be predicated upon this obligation that the defendant owed either the one or the other sum. The undertaking in • its second branch was purely contingent, and might never mature.
The appellant urges that the language of the twenty-third
It seems that, so far, this case, from its peculiar facts, is-brought within the terms of the rule laid down by the decisions cited, and that the defendant may not be allowed to set off the claims he held against the testator, due and payable in his lifetime.
The defendant has set up and proved another item, that of the funeral expenses of the burial of the dead body of the testator ; and seeks to have the amount of these apply to diminish the recovery against him. The trial court has found that the-amount thereof, $184.30, was reasonable and necessary, and that it was incurred and paid by the defendant, but came to the conclusion, which must be considered one of law, that it was not a set-off to the claim of the plaintiff.
I have no doubt but that the reasonable and necessary expenses of the interment of the dead body of one deceased;.
To a claim for the payment of such expenses by an executor, the objection does not lie that the rule of distribution of assets will be improperly interfered with if the claim is allowed and paid. Unless there is some objection arising out of statutory provisions, these expenses must be preferred to all other debts (Toller on Exrs., 245), not excepting debts due by record, even to the sovereign. (Parker v. Lewis, 2 Devereux [S. C.], 21.) Even in the case of an insolvent
3STo statutory provisions are now in mind which interpose an obstacle. Though our statute of payment of debts and legacies (2 R. S., p. 87, § 27) gives the order in which the executor shall make payment of debts against the estate, and though there is no provision there for a priority of payment of funeral expenses, it is not to be held therefrom that the common-law rule is abrogated. Those expenses are not to be treated as a debt against the estate, but as a charge upon the estate, the same as the necessary expenses of administration. (Fitzhugh v. Fitzhugh, 11 Gratt., 300.) The expenses of probate of will precede the formal authority to the executor, but are allowed to him on an accounting. So should funeral expenses be. The decent burial of the dead is a matter in which the public have concern. It is against the public health if it do not take place at all (Rex v. Stewart, supra), and against a proper public sentiment, that it should not take place with decency. (Kanasan's Case, 1 Greenl., 226 ; see Jones v. Ashburnham, 4 East, 460; Regina v. Fox, 2 Q. B., 246.) The Eevised Statutes, already cited, impliedly give discretion that the executor, even before probate, shall pay the funeral charges; and notwithstanding the statute setting out the order of payment, if he follows that direction or that authority, the amount will be allowed to him as part of the expenses of his trust, with the restriction always that the amount is no greater than is necessary. And if they are paid by another than the executor, and reimbursed by or collected of the latter, there must be the same result. It follows that the defendant is entitled to be paid from the assets of the estate in the hands of the plaintiff, the amount which he has incurred and paid for funeral expenses. ” In Adams v. Butts (supra), it was held that they might be set off against a claim upon the defendant arising iri the intestate’s lifetime. In Myer v. Cole (12 J. R., 349), however, it was held that a declaration against executors in which there was a count on promises of their testatrix in
The judgment appealed from, must be modified so as to allow to the defendant, in diminution of the amount of the claim established against him, the sum of $180.30. He is also entitled to the interest thereon. There is no day named in the findings or in the testimony on which the sum was paid by the defendant. He alleges in his answer that the claim was assigned to him on the 25th April, 1872, and if interest is reckoned from that date, it will not be unjust to him.
The judgment so modified, should be affirmed, without costs to either party in this court.
All concur, except Gboveb, J., dissenting.
. Judgment accordingly.