Opinion
40828.
DECIDED SEPTEMBER 22, 1964.
Action for funeral expenses. Fulton Civil Court. Before Judge Camp.
Hugh G. Head, Jr., for plaintiff in error.
Wm. B. Morgan, John L. Respess, contra.
1. An individual, although administratrix of the estate of a decedent, may orally pledge her personal credit for burial expenses so as to render herself individually liable for the services after they have been performed.
2. No error is assigned in the bill of exceptions on the failure of the court to consider the defendant's special plea of res judicata at the time the demurrers were disposed of.
DECIDED SEPTEMBER 22, 1964.
Horis A. Ward, Inc., the owner and operator of a funeral parlor, filed an action in the Civil Court of Fulton County alleging that the defendant Mrs. Lenice Yarborough was indebted to it in the sum of $604.63 burial expenses for Jack Phillips, deceased, under the following facts: Mrs. Yarborough represented that she was the guardian of Phillips, that his estate was insolvent, that since she was the beneficiary of a group life insurance policy and also had personal funds, and that, as she wanted the body buried, she would personally pay the funeral expenses to be incurred for this purpose. The plaintiff, relying on these representations, conducted the burial at an expense of $937.63 of which it has received the sum of $333, in partial satisfaction, from the Veterans Administration, and it sued for the balance.
The defendant demurred to the petition generally on the ground that the promise came within the Statute of Frauds. She then filed in a single pleading a plea of res judicata (based on a prior declaratory judgment action filed by Mrs. Yarborough in her representative capacity as administratrix against this plaintiff which had been dismissed on general demurrer) and an answer to the petition. The plaintiff undertaker filed a general demurrer to the plea and answer as a whole, which was overruled, and special demurrers to certain paragraphs of the answer which were sustained. The defendant then assigned error on the overruling of her demurrers to the petition and on the sustaining of two grounds of special demurrer to paragraphs of the answer.
1. Code § 20-401 provides in part: "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz: 1. A promise by an executor, administrator, guardian or trustee to answer damages out of his own estate." In Smolka v. Chandler Son. 41 Del. 255 ( 20 A.2d 131, 134 ALR 629), the court dealing with the question of whether one subsequently appointed executor might personally be liable for a contract with an undertaker to bury the deceased testator, held: "From a review of the authorities there is no reason to suppose that an executor or administrator cannot be bound personally on his contract with an undertaker for the burial of his decedent except as provided by the Statute of Frauds. It is more nearly accurate to say that an executor or administrator who engages the services of an undertaker is personally bound unless he has stipulated against personal liability, or the circumstances are such as clearly to show that the credit of the estate was accepted and the implication of promise by the estate to pay . . . if this duty [to bury the decedent] is performed by the personal representative, or indeed by another not officiously but from necessity, the law implies a promise of reimbursement out of the assets of the estate for the reasonable expenses incurred and paid; but this is very far from saying that an executor or administrator cannot make himself personally liable for the funeral expenses. The undertaker is not, of course, bound to accept the credit of the estate; he may contract personally. Such contract may be by parol; and if the contract is performed, the executor or administrator is personally liable." See also Kenyon v. Brightwell, 120 Ga. 606 (4) ( 48 S.E. 124, 1 AC 169) and the cases cited in the annotations in 134 ALR p. 633 et seq. The general demurrer to the petition was properly overruled.
2. The rulings on special demurrer, not being argued, are considered abandoned. The general demurrer to the combined plea of res judicata and answer was overruled, and is thus favorable to the defendant. The orders recite that they are intended as rulings on demurrer only and specifically do not pass on the sufficiency of the plea, as to which no individual demurrer was interposed. The bill of exceptions does not assign error on the failure of the court to hear and rule on the plea at the time the demurrer rulings were entered; consequently, the position taken by the plaintiff in error in her brief that the court should as a matter of law have sustained the plea of res judicata has no legal basis on which to operate.
The trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Nichols, P. J., and Hall, J., concur.