Lawall v. Kreidler

*302 The opinion of the court was delivered by Ross, j.

In this case there was a general demurrer to the evidence of the plaintiff. The court sustained the demurrer, and gave judgment for the defendant; in which it is now alleged, the. court erred. The single and only question in this case, which is presented for our determination, is, whether the estate of a testator is liable for the funeral expenses of his widow. . The counsel for the plaintiff admits that the bequest made by Frederick Kreidler, deceased, to Barbara, his widow, was in lieu of dower; and that she elected to take the same in lieu of her dower at common law. They however contend, that the annuity and other bequests to her were entirely inadequate to her support after she became old and helpless, and that she must either have suffered from want, or have become a charge upon the township, if She had not been assisted by her daughter, the plaintiff, who after suit brought, intermarried with William H. Lawall. This allegation is not justified by the evidence; for a short time previous to her death she indorsed a note to Christina, the plaintiff, for ninety dollars with some interest due thereon; and she then told the person, who wrote her name on the note, and witnessed it, that “she was willing Christina should have the note ; that she had had a great deal of trouble with her; that Conrad had threatened to sell her lot, and that she might have that to help herself.” She was therefore not so destitute of the means of supporting herself, as the counsel have represented. Neither were the provisions made by the will entirely inadequate to her support, for if so, she certainly would not have been able to put out ninety dollars upon interest; and to have continued it upon interest until a short time previous to her death, when she thought proper to transfer it to Christina as much with a view of preventing Conrad from taking the lot from- her, as it was to compensate her for any trouble, which she may have had with her. But admitting that she was as necessitous as has been represented, even a very pauper, would the estate of the testator be liable to maintain her, and to defray the expenses of her funeral ? The plaintiff contends, that it would, and relies on the isolated case of Bertie v. Ld. Chesterfield, reported in 9 Mod. 30, 31. In that case, it was decided by the Master of the Rolls, that the estate of the husband in the hands of the devisee is liable for the funeral expenses of the testator’s wife, although she lived apart from him on a separate maintenance. It was suggested in the bill, but not proved, that the plaintiff Mr. Bertie was requested by the late Earl of Caernarvan to see his lady buried. The Earl of Caernarvan had devised six hundred pounds per annum to Lord Chesterfield, subject to the payment of his debts. His lady had power to dispose of her separate- maintenance by will; and she accordingly made a will, and constituted the plaintiff executor thereof; by which will she gave away more than she had to dispose of. It was decreed, that because the plaintiff took nothing of her estate by being made executor, (for she gave away the *303 whole in legacies,) the husband’s estate was subject by law to pay the funeral expenses of the wife. 1 have been unable, from the researches which I have made, to find this case reported in any other book. It certainly wants that precision, which is requisite to give a correct view of the subject. Whether the Earl of Caernarvan, or his wife died first, does not distinctly appear. If she died first, then it was a debt, which the legacy to Lord Chesterfield would be liable to pay. We are also left entirely in the dark as to the nature of the provisions made for the separate maintenance; these provisions might have had considerable influence in making the decree. At any rate the reason assigned for the making of this decree could, under no circumstances, be applicable to a case arising under, the laws of this state. According to our act of assembly funeral expenses must be first paid; and according to the decisions under that act, they must be paid before legacies, &c. The fact, therefore, of a wife bequeathing more than she possessed; or of an executor taking nothing by the will, which are the grounds of the decree in the case referred to in 9 Mod. can have no weight in the determination of this question by the courts of this state.

only provisions our in to subject are to be found in the 30th section of the act of 1771, (Purd. Dig. 724,) and the 6th section of the act of 1812, (Purd. Dig. 742,) and also in the 4th section of the act of 1718, (Purd. Dig. 328.) The provisions of the act of 1771, and those of the act of 1812, may be considered as similar, so far as they have any bearing upon the present question. They provide for cases, where husbands, who have estates which should contribute to the maintenance of their wives or children, desert them and leave them a charge upon the city, borough, or township. In such cases, authority, is given to the overseers of the. poor, after having obtained a warrant or order from two magistrates, to seize so much of the goods and chattels, and also to receive so much of the annual rents and profits of the lands and tenements of such husband, &c. as such two magistrates shall direct for the maintenance of such wife, &c. which order being confirmed at the next court of quarter sessions, it shall be lawful for the justices of the said court to make an order for the overseers to dispose of so much of the goods and chattels as the said justices shall think necessary ; and also to receive so much of the rents and profits of the lands, &c. as shall be ordered by the said justices. Whether the sequestration of the husband’s goods and chattels, and the rents and profits of his real estate so authorised to be made, would continue longer than the husband’s life, is a question not presented by the case under consideration for our adjudication. I express no opinion about it. There is, indeed, nothing in these acts, which can render the estate of the husband after his decease, liable to pay the funeral expenses of his widow. The act of 1718 has reference only to mariners and sea-faring men, remaining away beyond a limited time, and has no relevancy to the case under consideration.

*304 I have been unable to discover any provision in any of our acts of assembly authorising the funeral expenses of the widow to be defrayed out of the estate of the husband, or indeed any liability of the husband’s estate for her maintenance, unless the sequestration of the rents and profits of his estate, made in pursuance óf the acts just cited, be considered to be and continue a lien. It is difficult to see how any such law could be made consistently with the exercise of the husband’s reasonable disposition of his estate. Suppose a woman has had three husbands, who have all died, leaving her a widow ; of the three husbands, whose estate would be subject to the payment of the widow’s funeral expenses 1 If it be said, that the estate of the last husband is liable, I answer, that he died insolvent. If it be said, that the estate of the second husband must be subjected to the payment, I answer that she was the sole executrix and wasted the whole of it before her last marriage. But if it be said, that the estate of the first husband is liable, I answer, that he left her a valuable property, and that she has extravagantly run through the whole of it with the assistance of her other husbands. Certainly there would be no equity in making the estate of the first husband in the hands of devisees or bona fide purchasers liable for the payment of that which she had ample means left her to defray. If she has, by self indulgence or improvident management, become a pauper, she must be supported and buried as all other paupers are, who have no children able to support and bury them. But if she has children able to maintain and bury her, the laws of the state will compel them to do so. At common law, there was no support provided for the poor. It was an ecclesiastical regulation; one fourth of the tithes being applied to that purpose. As the system of tithes never existed here, this regulation could have no application in this state.

At the time of the decree in Bertie v. Lord Chesterfield, a woman living apart from her husband on a separate maintenance and contracting debts, could not be compelled to pay those debts out of her separate maintenance; the provision for her separate maintenance was exempted from their payment. But the law has since undergone a change on this subject; and her debts have been decreed to be paid out of her separate maintenance. It has even been doubted whether her separate maintenance is not liable for her funeral expenses. See Mr. Jacob’s Note to 2 Ross, on Leg. 245, London Edit, 1826.

There is no error in the judgment of the court below, and it must be affirmed.

Judgment affirmed.