McCullough v. McCready

MacLean, J. The complaint alleges that, “ at the request of decedent’s widow, decedent having left no children, plaintiff, in the preparation for and in the performance of [543] the burial of said decedent,” the testator of the defendants and the uncle of the plaintiff, “ and of the rites and ceremonies necessitated and required by the racial custom and sentiment of said decedent and of his relations and friends, expended moneys for certain materials in that behalf, all of which were necessary and suitable to decedent’s condition in life, and of the reasonable value of Seventy one and 25/100 Dollars ($71.25), as appears by Schedule A hereto annexed.” The defendants demur thereto on the ground that the complaint does not state facts sufficient to constitute a cause of action. It is disclosed by the schedule made part of the complaint that the expenditures were for certain articles, delicatessen in their nature and for immediate consumption, inferably at a wake. Were the expenditures proper in character is the question for present determination. Their reasonableness would be an issue arising upon answer. Disputes of such charges seem to have been rare to judge from the single mention in the brief of counsel for the plaintiff, masterly in its sphere and much widening common knowledge respecting funeral rites, ceremonies and attendant customs. A General Term of this Supreme Court has recognized (14 Hun, 562) recognition of expenses for a wake by reversing a surrogate’s decision (3 Redf. 313) putting them upon the estate of a wife instead of upon the husband. That the term “ funeral ” includes many circumstances and may cover varied outlays needs little search in books at hand. Thus apparel of mourning, not requisite as raiment, but commanded by custom and respect, has been allowed (3 Dem. 524); so, too, have been music and flowers. Matter of Ogden, 41 Misc. Rep. 158. Indeed, it is of judicial learning in this State that “ 1 Funeral ’ embraces not only -the solemnization of interment but the ceremonies and accompaniments attending; * * * ceremonies prompted by affection and * * * determined by the religious faith and sentiment of the friends of the deceased * "x" * varying from the simple bier to the imposing catafalque, from the informal liturgical service or scriptural reading for the humble to the elaborate orisons fúnebres attending the obsequies of the renowned.” Deferring to expositions of such authority the judgment should be [544] reversed and the demurrer overruled, with leave to the defendants to answer upon the payment of the costs of this appeal and of the court below. 1 Amehd, J., concurs.