Van Emon v. Superior Court

76 Cal. 589 | Cal. | 1888

Sharpstein, J.

This is an application for a writ of review. The respondent in a probate proceeding made an order authorizing Robert Baker, administrator of the estate of John W. Miller, deceased, to cause a monument to be erected at the grave of deceased at an expense not exceeding fifteen hundred dollars. Petitioners, who are heirs of deceased, asked to have said order annulled on the ground of want of jurisdiction in the court to make it. The contention of petitioners is, that the jurisdiction of superior courts in matters of probate is defined by statute, and that the statute does not authorize the erection of monuments at the graves of deceased persons at the expense of their estates. It authorizes the payment of funeral expenses, but petitioners insist that the cost of the erection of a monument is not any part of the funeral expenses. The answer to this is that courts and law-writers have so treated it. In case of the appeal of Ann McQlinsey, Administratrix of John McGlinsey, 14 Serg. & R. 64, the orphan’s court struck out a credit claimed for funeral expenses of the deceased. The appellate court said: “A handsome tombstone was erected over the vault in which the body was interred, and this was the principal article of expense.” The court held that that should have been allowed.

In Bendall v. Bendall, 24 Ala. 295, 60 Am. Dec. 469, the court said: “They [the vouchers] all relate to a box tomb of marble, lettered and inscribed, which the administrator caused, to be erected over the grave of the deceased.....This may well he classed under the head of funeral expenses.”

In Ferrin v. Myrick, 41 N. Y. 325, the court, after saying it was the duty of the executor to pay funeral expenses, added, “ and it has been well held that suitable gravestones are a part of such expenses.”

In Fairman’s Appeal, 30 Conn. 209, the court said that the sums paid for tombstones “should be considered a part of the funeral expenses.”

We think the court had jurisdiction to authorize the erection of a monument, and that is the only question which we can consider on the application for a writ of review.

The demurrer to the petition is sustained, and the proceeding dismissed.

Searls, C. J., McFarland, J., Paterson, J., and Thornton, J., concurred.