Samuel v. Estate of Thomas

LyoN, J\ It may be conceded that the tombstone and curbing which the appellant procured for the grave of her deceased brother were appropriate to his estate and condition in life; that the expenditures therefor may be regarded as burial expenses; and that, had the administi-ator made such expenditures, the court might, in its discretion, have allowed the amount thereof against the estate. But it does not necessarily follow from these propositions, that the claim of the appellant is valid and enforceable against the estate of the intestate. The question to be determined is, What expenses incurred intermediate the death of an intestate and the granting of letters of administration are legally chargeable to the estate? The answer is, we think, that only such necessary expenditures as from the nature of the circumstances cannot properly be postponed until an administrator shall be appointed, are so chargeable. This rule will, of course, entitle an heir, a legatee, widow or guardian, or even a stranger, who has paid reasonable burial expenses, necessarily incurred before administration could be granted, to be reimbursed from the estate. But, as we understand the law, the rule goes no further. Every expenditure [553] wbicb can decently and reasonably be postponed until an administrator is appointed, should be so postponed, and one who, before such appointment, voluntarily incurs an expense for which there is no immediate necessity, does so in his own wrong, and cannot compel the administrator, when appointed, to reimburse him. The common law imposed severe liabilities upon one who, without authority, assumed to act as an executor. It always has been the policy of the law1 to prevent any unauthorized and unnecessary interference with the estates of deceased persons, and to confide the settlement of such estates to the legally-appointed and qualified executors or administrators, acting under the scrutiny and control of the proper courts. Certainly, there was no necessity for Mrs. Samuel to expend $500 upon her brother’s grave before letters of administration issued to Mr. Howell. A delay of a few months would have been no disrespect to the memory of the dead, and could furnish no just ground of complaint to his dearest friend. Besides, had the court allowed the administrator to erect so expensive a memorial, it would have seen to it that the brother and the other sister of the deceased should be consulted, and their wishes in regard thereto considered. It does not appear that Mrs. Samuel conferred with them on the subject. It is scarcely necessary to add that the action of Mr. Vaughn in the matter adds no weight to the claim. After the death of his ward, he was as powerless as Mrs. Samuel to charge the estate with an expense for which there was no immediate or pressing necessity; and had he incurred the expenditure, he would have been in no better or different position. Hence his advice, or consent or promise that the expense should be paid out of the estate, does not bind the estate. The same rule excludes the right of the appellant to be allowed the cost of the photograph and memorial cards. As to the sum paid for “ publication of probate notice,” there is no averment in the petition showing the nature of the notice, [554] or any necessity for the expenditure. The administrator refused to pay the claim of Mrs. Samuel, and in sustaining the demurrer to the petition the county court held that it was not a legal charge against the estate. We are not aware of any rule of law which was violated by that decision. N either has our attention been called to any case which holds that a person may, before an administrator is appointed, voluntarily incur expenses like those incurred by the appellant, and charge the estate therewith. In most of the cases cited by the learned counsel for the appellant, the expenditures were made by the executors or administrators, and not by third persons before administration granted. The view we have taken of the law of this case is fully sustained in Foley v. Bushway, 71 Ill., 386; and the doctrine of other cases cited on behalf of the respondent is in the same direction. By the Court.— The order of the circuit court is affirmed.