Van Orden v. Krouse — 34 N.Y.S. 1004

Majority

p. 1004

VAN ORDEN v. KROUSE.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Executors and Administrators—Sale of Land for Funeral Expenses.

One whose claim against a decedent’s estate is for funeral expenses cannot maintain a proceeding for the sale of decedent’s land to pay debts.

Appeal from special term, Rockland county.

Action by Peter 8. Van Orden against Charles Krouse. A demurrer to the complaint was sustained, and plaintiff appeals.

Affirmed.

Argued before DYKMAN and PRATT, JJ.

Garrett Z. Snider, for appellant.

W. F. Wyckoff, for respondent.

This is an equitable action to impress a trust upon certain real property belonging to Mary M. Krouse, deceased, at the time of her death, for her funeral expenses. She died intestate, and the .plaintiff, who was an undertaker, buried her and furnished all the necessary articles for her funeral and interment. The plaintiff was not employed to render the services or furnish the articles. The husband of the deceased is insolvent, and she died intestate. No administrator of the estate has been appointed, and the plaintiff desires to have his claim declared tó be a lien upon the real

p. 1005

property of the deceased. There was a demurrer to the complaint for insufficiency, which was sustained, and the plaintiff has appealed from the judgment sustaining the demurrer. There is no legal principle upon which this action can be maintained, and the judgment must be affirmed, with costs.