Van Orden v. Kouse — 68 N.Y. St. Rep. 839

Majority

p. 839

Peter S. Van Orden, Appl’t, v. Charles Kouse, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Executors — Sale of real estate for payment of debts.

A claimant for funeral expenses cannot maintain a proceeding for the sale of decedent’s real property to pay debts.

Appeal from an interlocutory judgment, sustaining a demurrer.

Garrett Z. Snider, for app’lt; W. F. Wyckoff, for resp’t.

— 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 to be a lien upon the real 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.