Crapo v. Armstrong

Rothrock, J. — It does not appear that any objection was made to the original appropriation of twenty-five hundred dollars, by any of the parties in interest. The value of the whole estate does not appear in the record before us. It appears to be well settled that a tombstone is a proper expenditure to be made by an executor as pertaining to the funeral exj>enses. And such expenditure may be made without any direction by will, and notwithstanding the estate may be insolvent. Hapgood v. Houghton, 10 Pick., 154; Wood v. Vandenbery, 6 Paige, 277; Fairman’s Appeal, 30 Conn., 205; McGlinsey’s Appeal, 14 Sergent and Rawle, 64; Porter’s Estate, 11 Pa. St., 43. Of course, the amount to be expended in funeral expenses cannot be the same in all cases. Such expenses should be regulated by the circumstances of the decedent, the solvency of his estate, and regard must be had to the usages of the country, and many other considerations. We think that, in the absence of any statutory provision upon the subject, the propriety of obtaining tombstones or monuments, and the amount to be expended therefor, may very [699] properly be left to tbe circuit court having the supervision of the settlement of the estate. And unless the provision thus made should appear to be unreasonable or excessive, all parties in interest should be bound thereby. In the case at bar, twenty-five hundred dollars was not thought by any of the parties to be an unreasonable expenditure for a monument. Twelve hundred dollars was expended by the executor, and he now resists the expenditure of any greater sum, not because such expenditure is unreasonable and excessive, taking into account the circumstances of the deceased, but because the widow has no right to ask that such appropriation be made. He contends that, by the settlement made by the widow in 1879, when this application was pending, she was paid two thousand' dollars in full of her interest, and that whatever balance of the estate remained belonged to the heirs and legatees, and the court had no power upon her application to appropriate the money belonging to the heirs and legatees. The evidence as to whether or not the settlement of 1879 included a waiver or withdrawal of this application, is in conflict. The court was warranted in finding from the evidence that this matter of completing the improvements upon the cemetery lot was not included in the settlement. Indeed, wre think the preponderance of the evidence sustains the finding of the court. Now, if this application, which was then pending, was not included in the settlement, the widow had the same right to renew it and press it to a determination that she had to make-it in the first instance. That she had such right in the first instance is, it appears to us, very clear. If an executor should unreasonably refuse to make application to the court for a proper and reasonable allowance for a grave stone, tombstone or monument, wre think it is unquestionably the right of the widow or heirs to present the matter to the court. In conclusion, we deem it sufficient to say that the order made by the court does not appear to us to be improper or unreasonable, and, as there is no showing that the executor has not assets in his [700] hands sufficient to discharge the obligation imposed upon him by the court, we think the order should be Affirmed.