Opinion
06-22-1891
In re STEWART.
Asa Jones, for petitioner.
Asa Jones, for petitioner.
S., being a married man, became insane. During such insanity his wife died, leaving a last will, in and by which, among other things, she directed that her just debts and funeral expenses should be paid. The guardian of the lunatic paid the funeral expenses of the wife out of the estate of the husband. The question is whether, since the wife had a separate estate of her own, and made provision by her will for the payment of her debts and funeral expenses, the guardian of the lunatic was justified in paying the funeral expenses of the wife or not. Under the common law, the husband was undoubtedly liable to defray all necessary expenses incident to the decent burial of his wife. Schouler, Husb. & Wife, § 412. See notes Manbv v. Scott, 3 Smith, Lead. Cas. 1702; Jenkins v. Tucker, 1 H. Bl. 91. This is founded upon the principle of law which holds that the husband is liable for all things necessary for the comfortable support and maintenance of the wife consistent with his station or condition in life. Manby v. Scott, 3 Smith, Lead. Cas. 1714; Montague v. Benedict, Id. 1743; Seaton v. Benedict, Id. 1749, and notes; Cunningham v. Irwin, 7 Serg. & R. 247; Cunningham v. Reardon, 98 Mass. 538; Morrison v. Holt, 42 N. H. 478. This liability continues notwithstanding the insanity of the husband. See notes to the above case. Manby v. Scott, supra, 1767. The language of the author is: "The obligation of the husband to maintain hiswifo being a duty imposed by the law, and resulting from the relation between them, does not cease upon the husband's becoming insane. He continues liable for necessaries supplied to his wife, in the same way and on the same grounds as a husband who has failed to supply her with them." The same author says that it is accordingly so held where the wifes separate allowance is sufficient. Turner v Rookes, 10 Adol. & E. 47. The husband being liable for necessaries furnished the wife, and being so liable after he becomes insane, and being liable for the expenses of her decent burial, I cannot but conclude that such liability continues after he becomes insane, even though the wife has a separate estate, and may have directed by her last will that her funeral expenses be paid. Such undoubtedly was the common law. I can find nothing in the statute that even by implication changes or qualifies the common law in this respect. Therefore I conclude that the guardian of the lunatic has a right to be reimbursed out of the moneys now in his hands, being the proceeds of the sale of real estate of the lunatic. This does not dispose of the question whether or not it is or will become the duty of the guardian to seek to enforce the claim for these funeral expenses against the estate of the wife. There is, no doubt, strong reason for insisting that, since the wife had a separate estate, and by her will charges it with the payment of her funeral expenses, that in equity, if not in law, she intended to exonerate her husband's estate from all liability. But this question is not now considered, for the reason that all of the facts and circumstances connected with or concerning the two estates are not now before the court. I think it is not amiss to say that it deserves the consideration of the guardian before the final settlement of either estate; and, to guard against mistake, he ought to file his claim for these expenses with the executor of the wife's will.