Werner's Appeal

Two minors died intestate, unmarried and without issue, leaving their father as their heir-at-law. The latter was imbecile and possessed, of no estate. A sister of the deceased nursed them through their last illness and prepared the bodies for interment. For these services she presented a claim to the administrator, who refused payment on the ground that the charges were exorbitant, and paid the balance to the father as distributee, but 'filed no vouchers. Held, that the claim being for necessaries, and the parent unable to pay it, the estate of the minors was liable; that the payment by the administrator to the father was at his own risk; that under the evidence the claim, ?45 for each' minor, was not exorbitant.

Appeals from the Orphans’ Court of Allegheny county: Of October and November Term 1879, Nos. 113 and 114. These were two appeals by Frederick Werner, administrator of the estate of William and Catharine Hilline, deceased, from the decree of the court surcharging appellant with the sum of $45 in each case. Appellant filed his final account, which set forth that he has distributed the entire estate to Anton Hilline, the father and heir-at-law of the deceased, but filed no vouchers to said account. The estate was small, consisting of about $150. It appeared that the deceased were minors, unmarried and without issue. Their father, by reason of his habits of intemperance, was imbecile, impaired in health, and possessed of no means. The deceased had been sick, for several days prior to their death, with malignant typhoid fever, and required constant care and attention. Mary Hopkins, a sister of deceased, had boarded and nursed them through their last illness, and had • prepared their bodies for interment. She presented her claim for these services to the administrator, prior to the alleged distribution to the heir, payment of which was refused on the ground that it was excessive. She then excepted to the account of the administrator, and the court sustained her exception, surcharging the accountant with the sum of $45, in each case, and costs. Werner then took this appeal. There was no contract with deceased to pay for services, and if there was it was. void, as they were minors and under the protection of their father, who was bound to furnish them maintenance: Reeves’s Domestic Relations 228; 1 Bl. Com. 446 ; Schouler’s Domestic Relations 322; Harlan’s Accounts, 5 Rawle 323. The amount received by the father was ample to pay the claim. The exceptant permitted appellant to pay the father the money, and is therefore estopped. The claim- is exhorbitant and unreasonable. The claim of appellee is based on a quantum meruit: Hertzog v. Hertzog, 5 Casey 465. The duty to pay arose out of the facts. The services were necessaries, and not upon a contract with either the deceased or the parent. The latter being unable to pay was discharged from his duty, and the claim is a proper one against the estate, and which the administrator should pay : Reeves’s Domestic Relations 287, 413, 465; Schouler’s Domestic Relations 322; Adams’s Equity, 5th ed., 287; Greenwell v. Greenwell, 5 Ves., Jr., 194, and cases cited in notes; Harlan’s Accounts, 5 Rawle 323; Dawes v. Howard et al., 4 Mass. 97; In re Petition of Charles Potts, 1 Ash. 340; Newport v. Cook, 2 Id. 332; Pennock’s Estate, 1 W. N. C. 196, 434; Hellerman’s Estate, 3 Id. 391. The Orphans’ Court will not dispense with the exhibition of proper vouchers for payments made: Verner’s Estate, 6 Watts 250; Romig’s Appeal, 3 Norris 235; Act of March 15th 1832, Pamph. L. 143, sect. 29, 1 Purd. Dig. 444, sect. 189. The administrator made the distribution at his own risk, and cannot complain of the surcharge: Moorhead’s Appeal, 8 Casey 297. The claim was reasonable and just.