17 Abb. N. Cas. 273 | N.Y. Sur. Ct. | 1886
As matter of law, a husband is bound to bury the body of his deceased wife, but he may now be allowed the funeral expenses out of her estate, if she have any ; and the executor or administrator is. ultimately liable therefor, in most instances, But where, in the absence of the personal representative or the person bound to bury a dead body, or from the necessity of the case, another incurs the expense of a proper burial, he may recover it from the person
There is another aspect of the case. It is not pretended that the executors of Mr. Hill, as such, incurred any obligation in regard to the funeral expenses. It was beyond the scope of their executorial powers. Mrs. Hill, finding that she could not successfully resist
If the executors lacked the power to use the funds in their hands, to invest in this bill of Mr. Ireland, then it cannot be used here in the manner sought j and my researches have not enabled me to find any authority which would sanction such a procedure on their part. Mrs. Hill was aware of her personal liability to the undertaker, and had been sued by him before the decree fixing the amount due to the estate of Mrs. Quin had been entered. This funeral bill did not enter into consideration on that accounting; nor could it, as it then would have been an individual claim of Mrs. Hill. The decree fixed the sum which was due from the estate of John S. Hill, deceased, to Mrs. Quin or her legal representative, and the amount of this bill, which accrued since the death of the testator, and which the executors own personally, cannot be the subject of set-off or counterclaim against their liability on account of the estate they represent.
As Surrogate Bradford well said, in the principal case, “ the business of an executor or administrator is to settle the estate, pay the debts and' distribute the surplus, and not to speculate in demands against the creditors ” (and he might have added “ legatees or distributees”). “It is not a legitimate purpose for 'which to employ the trust funds, to buy up debts against claimants; and if he does so, he must take the risk of such dealings upon his own individual responsibility. On the other hand, if such transactions be lawful, the money advanced to purchase such claims may be legally charged to the estate; and the consequences of such a doctrine may, in many cases, be most disastrous.”
There are other reasons, unnecessary to be considered here, why the counterclaim should not be allowed. The grounds stated are deemed sufficient to warrant its rejection, and therefore, no good cause to the contrary being shown, the direction of the decree in this respect should be obeyed by the executors.
Ordered accordingly, with costs of the motion.