6 N.H. 201 | Superior Court of New Hampshire | 1833
delivered the opinion of the court
There is no doubt, that the funeral expenses are a charge upon the estate of a deceased person. 4 Burns’ E. Law. 289; Wentworth, 129, 172 & 292; 2 Bl. Com. 508; Lovelass, 51; Godolphin, 204; 1 Barn. and Adolphus, 260, Hancock v. Podmore; Buller’s N. P. 143.
There are cases, in which an executor, or administrator, may sue either in his own name or as executor or administrator. 14 Mass. Rep. 327, Mowry v. Adams; 9 Pick. 432, Williams v. Moore; 1 B. & C. 150, Cutherwood v. Chabaud; 3 East, 109; 1 D & E. 489.
There are cases where an administrator may be liable, as such, although no demand ever existed against the intestate ; as in cases where money has been paid by a surety, after the decease of the principal. 17 Mass. Rep. 464, Batchelder v. Fisk.
It is not to be doubted that an administrator is liable ■for all reasonable and necessary funeral expenses,— The law, which allows him to retain assetts for the purpose, makes him liable to pay.
But, notwithstanding he may be liable as administrator, he may be still personally liable also. When any thing is furnished for the funeral, at his request, he is
If, in this case, when the coffin was brought to the house, the defendant had promised to pay, he must have Been held to be personally liable. But the jury have found that there was no promise on the part of the defendant.
He is then liable only as administrator, unless he has so conducted as to make himself personally liable.
Whether, after the price of the coffin had been allowed to the defendant, in his administration account, by the judge of probate, the price might not have been considered as money in his hands for the use of the plaintiff so as to render him personally liable in a count for money, had and received, need not be decided, because there is no such count in this case.
We are, however, of opinion that by charging the amount in his administration account, and procuring an allowance of it by the judge of probate, he has admitted himself to he personally liable, and this admission will warrant a jury in finding a promise, by the defendant, to pay, made at the time the coffin was delivered. The estate ought not be considered as any longer liable, and be. ought not to be heard to object that the action is not against him as administrator. He could not have lawfully charged the sum to the estate, unless he considered himself personally liable ; and we think that this ought to have been submitted to the jury, as evidence of a promise to pay, made when the coffin was delivered.
Verdict set mide, and a new trial granted,
