Hall v. Stewart

Burks, J., delivered the opinion of the court. [1] C. W. Stewart and Minnie B. Stewart, his wife, jointly owned a house and lot in the town of Marion, Ya., acquired by them in 1918. In December, 1920, Mrs. Stewart was taken sick, carried to a hospital, and shortly thereafter died. The expenses of her last sickness and funeral amounted to $468.50, composed of doctor’s bills $117.00, hospital and nurses $106.50, undertaker’s bills $245.00. All of these bills were charged to and paid by the husband, C. W. Stewart. No issue was ever born of the marriage, and Mrs. Stewart died intestate, possessed of no personal estate, and seized of no real estate except the undivided half interest in the house and lot aforesaid. Her sole heir was her father, C. L. Hall. This suit was brought by C. W. Stewart to the first January rules, 1921, asking a sale of the house and lot aforesaid for the purpose of partition, and that there be refunded to him out of his wife’s half of the house and lot the amount paid by him as aforesaid for the expenses of the last sickness and funeral of his wife. The trial court allowed the full amount of the husband’s claim, and from the decree making that allowance this appeal was taken. — 386 — There is no dispute about the facts, and the sole question presented for decision is, was the allowance proper? [2] It is generally conceded that, at common law, the husband was bound for the funeral expenses of his wife, but owing largely to differences in the language of the statutes on the subject of funeral expenses and the estates of married women, or the construction put upon the language, there is a lack of harmony in the decisions as to the liability of the husband for the funeral expenses of the wife. The different views taken by the courts are well stated in 15 R. C. L. sec. 248, p. 1214, and the statements of the author are well supported by the cases cited in the notes, all of which we have carefully examined. We give below the text of that section; placing in the text not only the authorities cited in the notes, but other pertinent cases we have examined. “Reimbursement of Husband for Wife's Funeral Expenses.—Where a married woman by her will expressly charges her separate estate with the payment of her funeral expenses, the husband is entitled to reimbursement from such estate in case he has paid such charge. (In re Skillman, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295. Notes: 33 L. R. A. 662; 37 L. R. A. [N. S.] 755.) In some jurisdictions the view is taken that although that by the statute a married woman is entitled to the exclusive use and ownership of her separate property, free from any claim or control of her husband, and the husband is not liable for her debts contracted before marriage, yet the husband, as at common law, is bound to pay the wife’s funeral expenses, and cannot claim reimbursement therefor out of her estate. (Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Kenyon v. Brightwell, 120 Ga. 606, 48 S. E. 124, 1 Ann. Cas. 169; Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409, 37 L. — 387 — R. A. [N. S.] 754; Gallaway v. McPherson's Estate, 67 Mich. 546, 35 N. W. 114, 11 Am. St. Rep. 596. Notes: 32 Am. Rep. 170; 33 L. R. A. 662; 6 L. R. A. [N. S.] 917; 37 L. R. A. [N. S.] 754; 47 L. R. A. [N. S.] 283; 1 Ann. Cas. 172. Ambrose v. Kerrison, 138 Eng. Reprint 307; In re Sea, 11 B. C. 324; Bowen v. Daugherty, 168 N. C. 242, 84 S. E. 265, Ann. Cas. 1917B, 1161; Stonesifer v. Shriver, 100 Md. 24, 59 Atl. 139.) In other jurisdictions the view is taken under the general statutes making the funeral expenses a charge against a decedent’s estate, and those establishing the independent position of married women with regard to their property, that, as between the estate of a married woman and her husband, the liability of the estate must be regarded as primary, though it is his duty as before to see that his wife is buried, and that if he pays her funeral expenses he is entitled to recover his reasonable expenditures, as in other cases when a person has paid, in pursuance of a legal duty, what, as between himself and another, that other was bound to pay. (In re Skillman, 146 Iowa, 601, 128 N. W. 343, 140 Am. St. Rep. 295; Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311; Moulton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728. Notes: 33 L. R. A. 662; 6 L. R. A. [N. S.] 917; 37 L. R. A. 283; 47 L. R. A. [N. S.] 755; 1 Ann. Cas. 172. Schneider v. Breier's Estate, 129 Wis. 446, 109 N. W. 99, 6 L. R. A. [N. S.] 917; In re Stadtmuller, 96 N. Y. Supp. 1101, 110 App. Div. 76.) “Irrespective of the duty of a husband to bury his deceased wife and the primary obligation to pay such expenses as between the husband and wife’s estate, the necessary funeral expenses of a married woman is a proper charge against her estate, for which her executor or administrator, if paid by him, is entitled to credit on — 388 — his account. (McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861, 58 Am. Rep. 814.) On the other hand when the primary duty to bury his wife is considered as at common law to rest on the husband, it is held that where the executor of a wife’s estate reimburses the husbandfor expensesincurred by him in this respect, though at the request of the executor, the executor is not entitled to credit therefor in his account especially where there is no proof that the husband did not have ample means to defray such expenses. (Gallaway v. McPherson's Estate, 67 Mich. 546, 35 N. W. 114, 11 Am. St. Rep. 596.)” A careful consideration of the cases cited leads to the conclusion that we cannot simply choose between the holdings of different courts, but must construe our own statutes on the subject, and that but little assistance can be gotten from a review of the facts of cases in other jurisdictions and the holdings thereon, especially as many of the cases do not recite the statutes under which the decisions were rendered. Some of them, however, do, and these serve to illustrate the reason for the difference in the conclusions reached. For instance, the Iowa court (In re Skillman, supra) puts expenses of last illness on the same footing with funeral expenses because the statute does-so, while the Rhode Island court (Moulton v. Smith, supra), under the statute of that State, declares that the expenses of the last illness of the wife is a debt of the husband which cannot be charged to the estate of the wife, because not within the statute providing for the payment of funeral expenses. [3, 4] Prior to the enactment of our married women’s statute, a married woman in this State could own no personal estate except an equitable, separate estate which was held strictly subject to the settlement, and there was nothing upon which the statutes relating to — 389 — funeral expenses could operate. Since that enactment, she holds her estate according to the terms of the statute creating it. At common law the husband was liable for the funeral expenses of his wife as for necessaries. Since the enactment of the married women’s statute, the husband is still entitled to the services of the wife, and is bound for her support. Richmond Ry. Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Atlantic & D. R. Co. v. Ironmonger, 95 Va. 626, 29 S. E. 319; Norfolk R., etc., Co. v. Williar, 104 Va. 679, 52 S. E. 380; Mihalcoe v. Holub, 130 Va. 425, 429, 107 S. E. 704. [5, 6] There are several statutes in the State bearing on the subject under consideration, but we wish to confine the discussion, as far as possible, to the question presented in the case in judgment, that is, can a husband to whom credit has been given and who has paid the expenses .of his wife in her last illness and her funeral expenses, have indemnity therefor out of his wife’s estate? Counsel for the appellee has discussed the two items of expense as if they stood on the same footing, but they do not. The expenses of the last illness are necessaries for which the husband is still bound, and for which the wife is not bound in the absence of any contract or agreement on her part. If she had recovered, there could be no pretense for holding her in the absence of any contract on her part, and it would be absurd to say that if she died her estate would be hable. The debt was his, not hers, and he recognized the fact and paid it. The statute giving preference to that class of debts (Code, section 5390) applies to debts of the decedent, not to debts for someone else, and this was plainly a debt of the husband contracted in the lifetime of his wife, and it is expressly declared (Code, section 5134) that the property of the wife shall not “be subject to the debts and liabilities of the husband.” See also — 390 — Moulton v. Smith, 16 R. I. 126, 12 Atl. 891, 27 Am. St. Rep. 728; Towery v. McGaw (Ky.), 56 S. W. 727. Section 5390 of the Code deals with the liability of the personal estate of a decedent in the hands of a personal representative and in effect declares that no part of such estate shall be applied to his debts until the costs of administration of his estate and his funeral expenses have been paid. Section 5275 relates to the distribution of the personal estate of an intestate and in effect declares that there shall be no distribution of such estate until after the costs of administration, funeral expenses and debts of the decedent have been paid. Section 5395 declares that real estate of an intestate “shall be assets for the payment of decedent’s debts and all lawful demands against his estate in the order in which the personal estate of a decedent is directed to be applied.” At common law a married woman could neither contract nor be contracted with, nor sue nor be sued, but equity violated the laws of property, as between husband and wife, and allowed her to own property even in fee; and, as one of the incidents of such an estate was the power of alienation and liability for debts, and this might be destructive of the estate in the hands of one incapable of managing it, equity again interfered, and, by another violation of the laws of property, supported the validity of the prohibition against alienation or encumbrance. Tullett v. Armstrong, 4 My. & Cr. 377, 18 Eng. Ch. 405; Nixon v. Rose, 12 Gratt. (53 Va.) 425. It was entirely competent, therefore, for the legislature to remove the disability of married women in whole or in part, and to define her powers with reference to property of all kinds, to ascertain the rights of the husband, if any, therein, and the liability of the property to claims against the wife. This the legislature has done, and so — 391 — far as need be stated the rights, powers and responsibilities of a married woman, as they existed when Mrs. Stewart died, are set forth in the margin, * taken from Acts 1899-1900, page 1240. The married woman’s statute also declares how the estate of a married woman shall pass at her death. “When a married woman, having title to any estate, dies intestate, as to the said estate, or any part thereof, it, or such part, shall pass according to the provisions of chapter two hundred and thirteen, subject to her debts, and to the curtesy of her husband, should he survive her.” Code, section 5138. This statute was passed many years after the statutes mentioned above relating to funeral expenses and, of course, would prevail if there is any conflict between them. When we turn to chapter 213 we find it deals with two very distinct subjects, the descent of real estate and the distribution of personal property. The reference then in section 5138 must be construed distributively, that is to say, when the wife’s property consists of real estate it shall pass as real estate passes under that chapter, and when of personal property it passes as personal property passes in that chapter. In the case in judgment the wife had no personal estate, but only the undivided half interest in the house and lot, and that passed under chapter 213, section 5264, to her father. This section makes no mention of costs of administration, funeral expenses or debts, nor does it mention any surplus after the payment of these items as is — 392 — done in section 5273 of chapter 213, relating to the distribution of personal estate. Under section 5138 what passes is not a surplus but the whole of the estate of which the wife dies intestate. How does it pass? The statute says “subject to her debts.” Now funeral expenses are not debts of a decedent. Fitzhugh’s Ex’rs v. Fitzhugh, 11 Gratt. (52 Va.) 300, 62 Am. Dec. 653. Whether or not section 5395 making real estate assets for the payment of debts and lawful demands of a decedent applies to real estate of a married woman descended to her heir, in view of the language of section 5138, it is not necessary for us to decide at present, but it was entirely competent for the legislature to so declare, if it thought proper. If we turn to the section quoted in the margin, which is now, with some modifications, section 5134 of the Code, we find that the husband cannot be deprived of his curtesy in his wife’s real estate acquired or held under the statute, if the common law requisites therefor exist, but neither tenancy by curtesy initiate nor by the marital right “shall entitle him to the possession or use, or to the rents, issues and profits of said real estate during the coverture, nor shall the property of the wife be subject to the debts or liabilities of the husband.” On .the other hand, the husband is not responsible “for any contract, liability or tort of his wife.” Each is exempt from the liabilities of the other. We express no opinion as to the liability of the estate of Mrs. Stewart for her funeral expenses to the persons furnishing them, if they had asserted their claims against her estate, for that question is not before us. But there was a common law liability on her husband for these expenses, the credit was extended to him, and he paid the debt, and we are of opinion that he cannot recover back the amount from his wife’s estate. The — 393 — debt was his, and to allow him now to be reimbursed from her estate would be to charge her estate with the payment of his debt in face of the statute which declares “nor shall the property of the wife be subject to the debts or liabilities of the husband.” As said in Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598, 601, “If it (the wife’s estate) is charged with the wife’s funeral expenses, to that extent it is charged with a debt for which the husband is legally liable, and he acquires an interest in the estate when it is indispensable to its existence that all liability for his debts, and all right or interest of his, shall be excluded. Johnson's Adm’r v. Johnson, 32 Ala. 637; Lamb v. Bragg, 8 Port. 73. The statute creating the separate estates of married women excludes all marital right of the husband, as known to the common law, and declares such estate ‘is not subject to the payment of the debts of the husband.’ R. C. section 2371. The husband has not an equity to charge this statutory estate, as he had not to charge the separate estate created by deed, will, or other instrument, with necessaries furnished to the wife or to her family. Rogers v. Boyd, 33 Ala. 175. When, therefore, the appellant paid the funeral expenses of his wife, he paid his own debt only, and is not entitled to introduce it as a credit in his settlement of administration of the wife’s estate. Whether, if it appeared that the husband had not ability to bury the wife in a manner-corresponding with her fortune, he should not be allowed to claim of her separate estate funeral expenses on the same ground that a parent may charge his child’s estate with maintenance, is not a question presented by this record, and must not be regarded as affected by this decision.” For the reasons stated, we are of opinion that so much of the decree appealed from as directs the payment to the appellee, C. W. Stewart, of the sum of — 394 — $475.15 for the expenses of the last illness and burial of his wife, Minnie B. Stewart, is erroneous, and that the same be set aside and annulled, and that this cause be remanded to the Circuit Court of Smyth county for such decree as may be necessary not inconsistent with the foregoing opinion. Reversed. Footnotes [*] ‘•‘1. * * _a married woman shall have the rignt to acquire, held, use, control, and dispose of property, as if site were unmarried, and sucli power of use, control and disposition shall apply to all property of a married woman heretofore or hereaxter acquired: provided, however, that her husband shall be entitled to curtesy in her real estate when the common law requisites therefor exist, and he shall not be deprived thereof by her sole act; but the right to curtesy shall not entitle him to the possession or use, or to the rents, issues and profits of said real estate during the coverture, nor shall the property ot the wife be subject to the debts or liabilities of the husband. “2. A married woman may contract and be contracted with, sue and be sued, in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by or against her shall have accrued before or alter the passage of this act. ‘ ‘3. A husband shall not be responsible for any contract, liability, or tort of his wife, whether the contract or liability was incurred or the tort was committed before or after marriage.”