(a) It is settled that the reasonable and necessary expenses of the interment of the body of a deceased person constitute a charge against his estate.4 The executor, therefore, should contract for such interment and pay the expenses. Not infrequently, however, it is impossible or impracticable to ascertain at once who is named as executor, and to secure his authority. If no executor is appointed, it is, of course, out of the question to await the appointment of an administrator. Such a situation clearly demands that some one intervene in the representative's affairs and perform his duty for him (see ante, Sec. 194). And for the benefit conferred by such an intervention the executor or administrator must make restitution:
1 Otoe County v. Lancaster County, 1907, 78 Neb. 517; 111 N. W. 132; Town of Morristown v. Town of Hardwick, 1908, 81 Vt. 31; 69 Atl. 152.
2 Town of Wethersfield v. Stanford, 1774,1 Root (Conn.) 68; Bristol v. New Britain, 1898, 71 Conn. 201; 41 Atl. 548 ; County of Perry v. City of Du Quoin, 1881, 99 111. 479; City of Macomb v. County of McDonough, 1907, 134 111. App. 532; Ogden City v. Weber County, 1903, 26 Utah 129; 72 Pac. 433. And see Overseers of North Whitehall v. Overseers of South Whitehall, 1817, 3 Serg. & R. (Pa.), 117.
3 McCook County v. Kammoss, 1895, 7 S. D. 558; 64 N. W. 1123; 31 L. R. A. 461; 58 Am. St. Rep. 854.
4 Rogers v. Price, 1829, 3 Younge & J. 28; Fogg v. Holbrook, Extr., 1895, 88 Me. 169 ; 33 Atl. 792; 33 L. R. A. 660; Hapgood v. Houghton, 1830, 10 Pick. (Mass.) 154; Constantinides v. Walsh, Extr., 1888, 146 Mass. 281; 15 N. E. 631; 4 Am. St. Rep. 311; Patterson v. Patterson, 1875, 59 N. Y. 574 ; 17 Am. Rep. 384.
Rogers v. Price, Executor, 1829, 3 Younge & J. 28: Assumpsit for work and labor as an undertaker and materials furnished for the funeral of the testator. The testator died at the house of his brother, who sent for the plaintiff, an undertaker. There was no evidence of any contract with the defendant, or that he knew of the funeral. Garrow, B. (p. 34): "The simple question is, nothwithstanding many ingenious views of the case have been presented, who is answerable for the expenses of the funeral of this gentleman. In my opinion, the executor is liable. Suppose a person to be killed by accident at a distance from his home; what, in such a case, ought to be done ? The common principles of decency and humanity, the common impulses of our nature, would direct every one, as a preliminary step, to provide a decent funeral, at the expense of the estate; and to do that which is immediately necessary upon the subject, in order to avoid what, if not provided against, may become an inconvenience to the public. Is it necessary in that or any other case to wait until it can be ascertained whether the deceased has left a will, or appointed an executor; or, even if the executor be known, can it, where the distance is great, be necessary to have communication with that executor before any step is taken in the performance of those last offices which require immediate attention? It is admitted here that the funeral was suitable to the degree of the deceased, and upon this record it must be taken that the defendant is executor with assets sufficient to defray this demand; I therefore think that, if the case had gone to the jury, they would have found for the plaintiff, and that therefore this rule should be made absolute."1
1 Accord: Tugwell v. Heyman, 1812, 3 Camp. 298; Golsen v. Golsen, 1906, 127 111. App. 84; Hildebrand v. Kinney, 1909, 172 Ind. 447; 87 N. E. 832 ; Patterson v. Patterson, 1875, 59 N. Y. 574; 17 Am. Rep. 384; Ray v. Honeycutt, 1896, 119 N. C. 510; 26 S. E. 127, (explaining Gregory v. Hooker's Admr., 1821, 1 Hawkes (8 N. C.) 394; 9 Am. Dee. 646); France's Est., 1874, 75 Pa. St. 220; O'Reilly v. Kelly, 1900, 22 R. I. 151; 46 Atl. 681; 50 L. R. A. 483; 84 Am. St. Rep. 833; Waters v. Register, 1907, 76 S. C. 132; 56 S. E. 849. In Patterson v. Patterson, supra, the court said (p. 583): "And our Revised Statutes (2 R. S. 71, sec. 16) recognize this duty, in that the executor is prohibited from any interference with the estate until after probate, except that he may discharge the funeral expenses. From this duty springs a legal obligation, and from the obligation the law implies a promise The circumstances of a death generally point to a particular person as the one who may suitably intervene to pay the expenses of interment.1 One who pushes forward without justification to pay such expenses is an officious meddler (see ante, Sec. 196) and is not entitled to restitution out of the estate or from the person primarily liable.2
(6) Under the common law, it was the duty of the husband to give a suitable burial to the body of his deceased wife, and consequently one who performed that duty in the absence of the husband, or upon the husband's failure to perform it (see ante, Sec. 195), could recover from him the expenses incurred therein:
Jenkins v. Tucker, 1788, 1 H. Bl. 90: Action to recover money expended in paying debts and defraying funeral expenses of defendant's wife, who was plaintiff's daughter and who died while the defendant was in Jamaica. Lord Loughborough (p. 93): "I think there was a sufficient consideration to support to him who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable. It is analogous to the duty and obligation of a father to furnish necessaries to a child, and of a husband to a wife, from which the law implies a promise to pay him who does what the father or the husband, in that respect, omits. . . . The decent burial of the dead is a matter in which the public have concern. It is against the public health if it do not take place at all, and against a proper public sentiment, that it should not take place with decency." See also McCullough v. McCready, 1907, 52 Misc. 542, 102 N. Y. Supp. 633, aff. 1907, 122 App. Div. 888; 106 N. Y. Supp. 1135, allowing expenses of a wake paid by a nephew of decedent. In O'Reilly v. Kelly, supra, the claim was for flowers furnished for the funeral; they were held "necessary."
1 Jenkins v. Tucker, 1788, 1 H. Bl. 90, (father of married woman in the absence of husband); Rogers v. Price, Extr., 1829,3 Younge & J. 28, (brother in whose house death occurred); Stone v. Tyack, 1911, 164 Mich. 550; 129 N. W. 694, (step-father); France's Est., 1874, 75 Pa. St. 220, (widow); O'Reilly v. Kelly, 1900, 22 R. I. 151; 46 Atl. 681;
50 L. R. A. 483; 84 Am. St. Rep. 833, (housekeeper).
2 Quin v. Hill, 1886, 4 Dem. (N. Y. Surrogate's Court) 69, (mother). And see Foley v. Bushway, 1874, 71 111. 386, (widow); Lerch v. Emmett, 1873, 44 Ind. 331, (mother); Fay p. Fay, 1887, 43 N. J. Eq. 438, (administrator of decedent's grandfather's estate); Samuel v. Thomas, 1881, this action for the funeral expenses, though there was neither request nor assent on the part of the Defendant, for the Plaintiff acted in discharge of a duty which the Defendant was under a strict legal necessity of himself performing, and which common decency required at his hands; the money therefore which the Plaintiff paid on this account, was paid to the use of the Defendant. A father also seems to be the proper person to interfere in giving directions for his daughter's funeral, in the absence of her husband." 1
51 Wis. 549; 8 N. W. 361, (sister).
But under the modern statutes establishing the independent position of married women with regard to their property, it would seem that the liability of the estate is primary, and that the husband is chargeable only in the event that the estate is insufficient to meet the obligation. It follows that when a married woman dies leaving sufficient property to pay her funeral expenses and the circumstances impose upon the husband a moral duty to pay them, he should have an action against the executor or administrator for reimbursement. It has been so held,2 though there are cases to the contrary,3 some of which obviously rest upon a presumption that the benefit is conferred gratuitously (see ante, Sec. 199).
(c) An interesting Missouri case, in which an erroneous decision would seem to have been reached, is Duval v. Laclede County.1 The plaintiff paid the funeral expenses of a poor person who died in his house and presented a claim to the county court pursuant to the provisions of a statute prescribing that the county court should allow such sum as it should deem reasonable for the funeral expenses of any person who should die without means to pay such funeral expenses. It was held by the Supreme Court that the plaintiff was not entitled to an allowance. Said the court:
1 Accord: Ambrose v. Kerrison, 1851, 10 C. B. 776; Bradshaw v. Beard, 1862, 12 C. B. (N. S.) 344; Cunningham v. Reardon, 1868, 98 Mass. 538; 96 Am. Dec. 670; Stone v. Tyack, 1911, 164 Mich. 550 129 N. W. 694; Gleason v. Warner, 1899, 78 Minn. 405 ; 81 N. W. 206.
2 Lightbown v. McMyn, 1886, 33 Ch. D. 575; In re Skillman's Estate, 1910, 146 la. 601; 125 N. W. 343; 140 Am. St. Rep. 295; Constantinides v. Walsh, Extr., 1888, 146 Mass. 281; 15 N. E. 631; 4 Am. St. Rep. 311; Freeman v. Coit, 1882, 27 Hun (N. Y. Sup.) 447; Quin v. Hill, 1886, 4 Dem. (N. Y. Surrogate's Court) 69; Pache v. Op-penhehn, 1904, 93 App. Div. 221; 87 N. Y. Supp. 704; McClellan v. Filson, 1886, 44 Ohio St. 184 ; 5 N. E. 861; 58 Am. Rep. 814; Moulton v. Smith, 1888, 16 R. I. 126; 12 Atl. 891; 27 Am. St. Rep. 728.
3 Smyley v. Reese, 1875, 53 Ala. 89; 25 Am. Rep. 598; In re Wer-inger, 1893,100 Cal. 345; 34 Pac. 825; Staples' Appeal, 1884, 52 Conn. 425; Kenyon v. Brightwell, 1904, 120 Ga. 606; 48 S. E. 124; Brand's Extr. v. Brand, 1901, 109 Ky. 721; 22 Ky. Law Rep. 1366; 60 S. W. 704, (cf. Towery v. McGaw, 1900, 22 Ky. Law Rep. 155; 56 S. W. 727); Stonesifer v. Shriver, 1904, 100 Md. 24; 59 Atl. 139; Stone v. Tyack, 1911, 164 Mich. 550; 129 N. W. 694.
"Assuming that the deceased was a poor person of the county, and that the burial of the county poor, as well as their support during life, is embraced in the general duty to take care of them, ... it would be against all principle to allow the plaintiff voluntarily to discharge this duty for the county, and in this manner become its creditor, without its consent, for services rendered, or money expended, in taking care of its poor."
Scott, J., however, entered a strong dissent, saying:
"This section, I conceive, makes it the imperative duty of the county to pay the reasonable expenses of burying its poor. The law did not intend to give a discretion to the court, whether it would pay or not. For the sake of humanity, it intended that every man who would bury the decaying bodies of the poor, should be paid. In such cases, there is no time to wait - there is no time to consult or ask advice, and therefore the law promises to pay any one who will bury the body. If the law was such that the party would only be paid in the event the county court thought proper to do so, the dead body, in many cases, might go unburied, or buried in such a manner as would be a a disgrace to humanity."
And in a later case2 the Supreme Court declared that if it were a case of first impression they might be inclined to follow the views of Judge Scott.