This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Certain duties imposed by law are of such character as to be easily evaded contrary to the policy of the law, if the general principles forbidding recovery in cases of voluntary payments, services or furnishing goods are applied. These cases form an exception to these general principles. The common feature of these exceptional cases is that from their nature, strong reasons of public policy demand prompt action, and to secure this action in cases of the neglect or omission of the person primarily liable, any other person taking such action may recover therefor from the person or fund primarily liable. In cases of the latter class the person to whom support is furnished would perish or hold his existence only on the precarious tenure of charity if obliged to await the result of a direct action to compel the person legally liable for such support to perform his legal duty even if an appropriate action existed in every case. Hence a right of action in implied assumpsit is given to the person furnishing such support. Since the Common Law remedy in such cases was an action in general assumpsit, these rights of action are classed with implied contract, though there is usually no genuine agreement. Funeral expenses form a prominent class of cases illustrating this general principle. In the absence of an executor or administrator, or his omission to act, a third person who pays for funeral expenses or renders them because of the necessities of the particular case and not as an officious intermeddler may recover from the decedent's estate a reasonable compensation therefor.1 Thus the widow may recover the amount expended by her for grave clothes and undertaker's expenses for the burial of her husband.2 So a son of the deceased, who not knowing that the latter had any property, bought a cemetery lot which was larger than necessary, but there was nothing to show that a smaller lot could have been bought, may be reimbursed out of his parent's estate.3 So one who furnishes a reasonable amount of flowers at decedent's funeral, at the request of decedent's sister-in-law who had been acting as his housekeeper may recover therefor out of decedent's estate.4 Funeral expenses paid by one before appointment of an administrator should be credited upon his debt due to decedent, and may be set-off against such debt in a subsequent suit by the administrator.5 So if A, an executor of B's will, pays the funeral expenses of C, a legatee under C's will, who dies in poverty, A may credit such payment on C's legacy.6 A different question arises where a husband pays his wife's funeral expenses and seeks reimbursement out of her estate. At Common Law the husband was liable for these expenses, and in paying them he was discharging his own legal obligation. Accordingly, he could not be reimbursed out of his wife's estate ;7 and if her executor has paid such expenses he may deduct them from the husband's share of his wife's estate, as money paid out to the husband's use.8 In some states statutes have made funeral expenses a debt of the decedent's estate, and have provided for their payment. Under such statutes some courts have held that a husband who pays the funeral expenses of his wife is entitled to reimbursement out of her estate.9 Without deciding this question, it has been held that a son who pays his mother's funeral expenses and who is afterwards appointed her executor, may credit himself with such expenses in his account as against the objection of his sister that such expenses should have been paid by the husband of the decedent.10 The estate of the deceased wife is liable by such statute even if the ultimate liability rests upon her husband.11 If the corpse were to remain unburied until the person primarily liable for funeral expenses were compelled to do his duty, it would be an outrage to public decency even if an appropriate action for that purpose existed. Hence a right of action in assumpsit is given to the person who buries the corpse or pays for the funeral expenses. This right of action is accordingly limited to cases where the person primarily liable either omits to act voluntarily or is so situated that he has no opportunity to act. One who intermeddles officiously cannot recover. Thus where a stranger took possession of money of the decedent and out of that fund paid the funeral expenses, he cannot set off such expenses as a credit in an action against him by the executor of the decedent.12
10 Sanderson v. Brick Co., 110 Wis. 618; 86 N. W. 169.
11 Boyer v. Richardson, 52 Neb. 156; 71 N. W. 981.
12Gillespie v. Simpson (Ark.), 18 S. W. 1050.
13 Sioux National Bank v. Packing Co., 63 Fed. 805.
1Fogg v. Holbrook, 88 Me. 169; 33 L. R. A. 660; 33 Atl. 792; Mar-pie v. Morse, 180 Mass. 508; 62 N. E. 966; Booth v. Radford, 57 Mich. 357; 24 N. W. 102; Sullivan v. Horner, 41 N. J. Eq. 299; 7 Atl. 411; Ray v. Honeycutt, 119 N. C.
510; 26 S. E. 127; O'Reilly v. Kelly, 22 R. I. 151; 50 L. R. A. 483; 46 Atl. 681.
2 France's Estate, 75 Pa. St. 220.
3 Marple v. Morse, 180 Mass. 508; 62 N. E. 966.
4 O'Reilly v. Kelly, 22 R. I. 151; 50 L. R. A. 483; 46 Atl. 681.
5 Phillips v. Phillips, 87 Me. 324; 32 Atl. 963.
6 Wilson v. Staats, 33 N. J. Eq. 524.
7 Matter of Weringer, 100 Cal. 345; 34 Pac. 825; Staple's Appeal, 52 Conn. 425; Waesch's Estate, 166 Pa. St. 204; 30 Atl. 1124.
8 Brand's Executor v. Brand, 109 Ky. 721; 60 S. W. 704.
9 Morrissey v. Mulhern, 168 Mass. 412; 47 N. E. 407; Constantinides v. Walsh, 146 Mass. 281; 4 Am. St. Rep. 311; 15 N. E. 631; Moulton v. Smith, 16 R. I. 126; 27 Am. St. Rep. 728; 12 Atl. 891.
10 McClelland v. Filson, 44 O. S. 184; 58 Am. Rep. 814; 5 N. E. 861.
11 Gould v. Moulahan, 53 N. J. Eq. 341; 33 Atl. 483.