JOHN W. RUDDUCK, Judge.

In late August 1989, the plaintiff, Davis-Turner Funeral Home, Inc. provided goods and services for the burial of one Cuthbert Chaney. The funeral was provided at the request of the defendant, Charles L. Chaney, son of the deceased, after the widow, third-party defendant Lillian Chaney, refused to be responsible for the burial. Today, nearly eighteen months later, the funeral bill remains unpaid.

On October 4, 1990, plaintiff filed a complaint with this court seeking a judgment against defendant Charles L. Chaney for the unpaid balance. By answer and third-party complaint filed on October 16, 1990, defendant seeks an order of "indemnity" from third-party defendant, Lillian Chaney, should Charles L. Chaney be found liable for the funeral bill. Trial was conducted on January 3, 1991 with all parties represented by counsel.

Certain stipulations were entered into at trial which greatly simplified the issues to be resolved. The court finds after reviewing the record that the following facts are true:

(1) Cuthbert Chaney died on August 27, 1989.

(2) Davis-Turner Funeral Home, Inc. provided funeral goods and services for the burial of Cuthbert Chaney.

(3) The bill for the funeral goods and services was $4,001.60 and was stipulated by all parties to be reasonable.

(4) Davis-Turner Funeral Home, Inc. received a $235.00 cash advance from Charles L. Chaney leaving an unpaid balance of $3,766.60.

(5) Defendant Charles L. Chaney is a surviving adult son of Cuthbert Chaney and also is the executor of the estate of Cuthbert Chaney.

(6) The estate of Cuthbert Chaney is insolvent as stipulated by the parties.

(7) Defendant Charles L. Chaney signed a contract with Davis-Turner Funeral Home, Inc. agreeing to be personally responsible for the funeral bill of Cuthbert Chaney.

(8) Third-party defendant Lillian Chaney is the surviving spouse of Cuthbert Chaney and stepmother of Charles L. Chaney.

(9) Lillian Chaney refused and declines to be personally responsible for any expenses involved in the burial of Cuthbert Chaney although she does appear to possess assets to pay the expenses.

With these factual matters resolved, one legal issue becomes clear: Charles L. Chaney, individually, is initially responsible under the law of contracts to Davis-Turner Funeral Home, Inc. for the funeral expenses of his father, Cuthbert Chaney. The court will grant judgment accordingly finding no evidence that Charles L. Chaney signed the agreement as executor of the estate. Whether defendant Charles L. Chaney is entitled to indemnification from Lillian Chaney requires closer scrutiny.

Defendant Charles L. Chaney argues that Lillian Chaney was under a statutory duty to bury her deceased husband and directs the court's attention to R.C. 3103.03. R.C. 3103.03 reads in pertinent part:

"The husband must support himself, his wife, and his minor children * * *. If he is unable to do so, the wife must assist him so far as she is able.

"* * * If he neglects to support his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband unless she abandons him without cause."

Defendant argues that funeral expenses are "necessaries" as that term is used within R.C. 3103.03. Since Charles L. Chaney supplied his deceased father with a reasonable and necessary burial, defendant argues that he now may recover the "reasonable value thereof" from the surviving spouse, Lillian Chaney.

While Ohio law is not replete with precedent on this issue, several cases do exist which supply guidance. At common law, Ohio courts have long recognized a duty of a surviving spouse to be responsible for the reasonable funeral expenses of his or her life-partner. In McClellan v. Filson (1886), 44 Ohio St. 184, 187, 5 N.E. 861, 862, the Ohio Supreme Court held that "at common law there is a duty upon the husband to dispose of the body of his deceased wife * * *."

In George H. Humphrey Son v. Huff (1914), 3 Ohio App. 111, an Ohio court of appeals recognized this common-law duty. However, in addition, this court interpreted Section 7997 of the Ohio General Code, a precursor to R.C. 3103.03. In that case, the court held the statute to be a codification of the common-law duty of support. As such, in that case, a husband was held statutorily liable for the funeral expenses of deceased wife despite the fact the couple had executed a written contract to live separate and apart.

A case similar to the facts of the case sub judice is Charles Melbourne Sons, Inc. v. Jesset (1960), 110 Ohio App. 502, 82 Ohio Law Abs. 366, 13 O.O.2d 276, 163 N.E.2d 773. While in that case, a widow actually contracted with a funeral director for the burial of her deceased husband (unlike the case under consideration), the court of appeals clearly held funeral expenses are "necessary" expenses:

"Funeral expenses of a deceased husband are the obligation of the widow, and as to her, are to be characterized as necessaries when the estate of the husband is insolvent * * *. The public health, as well as the moral well-being of the widow, requires this to be so. * * *" Id., 110 Ohio App. at 504, 82 Ohio Law Abs. at 368, 13 O.O.2d at 277, 163 N.E.2d at 775.

In 1976, a court of appeals went one step further. In In re Terrell (1976), 48 Ohio App.2d 352, 2 O.O.3d 353, 357 N.E.2d 1113, the court held both a common-law and statutory duty exists requiring a parent to support minor children. In requiring child support payments to continue after the death of a minor child to compensate a third party for the burial expenses of the deceased child, it is stated:

"* * * We hold that a minor's reasonable funeral expenses are considered necessaries, and upon the death of a minor child the Juvenile Court is justified in ordering the continuation of support payments being made by the father until such funeral expenses have been paid.

"The providing of a decent burial for a deceased minor child is no less a necessity arising out of the parent-child relationship than is the providing of food, shelter, clothing and other needs of a child while the child is alive. See, Moss v. Hirzel Canning Co., 100 Ohio App. 509, 511 [60 O.O. 397, 398, 137 N.E.2d 440, 442 (1955)]. The public interest requires that a parent assume responsibility not only for a minor child's needs while that child is living, but also for the funeral expenses of a minor child." Id. 48 Ohio App.2d at 354-355, 2 O.O.3d at 354, 357 N.E.2d at 1116.

The court finds no reason this logic would not equally apply to a husband-wife relationship.

Lillian Chaney argues to this court that she has no duty to bury her husband, that funeral expenses are not "necessary" expenses and that funeral expenses should not be construed as "support." Fortunately, case law in Ohio does not support these conclusions, and neither will this court. Accordingly, for the reasons stated, it is ordered that plaintiff recover judgment against defendant Charles L. Chaney in the amount of $3,766.60 plus interest at ten percent after September 30, 1989 and the costs of the action. However, the court finds that both at common law and by statute defendant Charles L. Chaney is entitled to be indemnified from Lillian Chaney, surviving spouse of Cuthbert Chaney, for the reasonable expenses he incurred in the burial of his father. Charles L. Chaney is granted judgment against third-party defendant Lillian Chaney for the amount he has paid or will pay for the reasonable funeral bill of Cuthbert Chaney in the amount of $4,001.60 plus interest charges actually paid to plaintiff and costs paid.

Judgment accordingly.