Garvey v. McCue

The Surrogate. I see no objections to any of these items, if I shall conclude they are properly chargeable in this case against the estate. It appears that, according to the customs of the family and faith of the deceased, the attendance of a priest and a wake or gathering of friends and relatives preceding the burial are sustained, and, within reasonable limits, any expense attending the same allowed. But the primary question here is as to the right of the husband of the deceased to charge his wife’s estate with these expenses. He claims before me that the money in bank was virtually his, which she received from his rents and de-' posited in her own name, but he made oath in court that she left an estate, and this money is returned as the whole estate. [315] I think he is estopped by his own acts from claiming this money as his or as not a part of her estate. If it was his there was no necessity of administering upon it. Treating it as her estate, could he apply it to pay her funeral expenses ? While she lived he was liable for her support and the necessaries of life. Our statutes have made married women liable for debts of their own contracting, when for the benefit of or in relation to their separate estates, and they may sue or be sued alone in relation thereto. They have not absolved the husband from his obligation to bury his wife, and the doing of that act and the expense attending it is primarily chargeable to him. I do not mean to intimate that this expense may not, in certain cases, be properly chargeable to the wife’s estate, as where the wife dies Avhilst living separate from her husband, or has a separate estate and he is shown to be pecuniarily irresponsible. In this case, let a decree be entered rejecting and disalloAving the charges made by the administrator for the funeral expenses, as well as the other items above excluded, and decreeing the payment of the judgment of the contestant.