In re Drane

—Frederick Gr. Flint died on the 1st day of June, 1894, intestate. His only heir at law and next of kin is his brother, Elisha Flint. On the death of Frederick, Elisha engaged the petitioner here, who is an undertaker, to furnish a casket and render the necessary services in the burial of decedent. Soon after the funeral the undertaker duly presented his bill for $192 to Elisha Flint for the casket so furnished and the services so rendered.

Every person has the right to a decent Christian burial. The common law casts upon some one the duty of seeing that the decedent is accorded that right. In the case at bar the duty was cast upon the brother, who is now acting as administrator of. the decedent’s estate. 2 Bl. Comm. 508 ; Reg. v. Stewart, 12 Adol. & E. 773 ; Rappelyea v. Russell, 1 Daly, 214 ; Ferrin v. Myrick, 41 N. Y. 315 . The expenses incurred in this casé were reasonable and proper. If the administrator had paid them, as was his duty, he would be allowed for the amount so paid on his final accounting. ' But he neglects to pay the same, and it becomes necessary to consider the rights and remedies which the holder of such f a claim has to obtain payment. It seems to have long been the rule of common law that necessary funeral expenses should be allowed prior to other debts and charges. 2 Bl. Comm. 508.

The common practice is -for executors or administrators to pay these expenses before any others. An executor. is authorized by statute to pay funeral expenses, before letters testamentary are granted. 2 Rev. St. p. 71, § 16. It is certainly the duty of an administrator or executor to pay the funeral of the decedent from his estate. Ferrin v. Myrick, 41 N. Y. 315 ; Patterson v. Patterson, 50 N. Y. 582 . The funeral expenses are a charge upon the estate. Id.

It seems that in many states an action may be maintained against an executor or administrator, as such, for the funeral expenses of the decedent, and that judgment may be rendered de bonis decedentis. Hapgood v. Houghton, 10 Pick. 254 ; Samuel v. Estate of Thomas, 51 Wis. 549 ; Seip v. Drach, 14 Pa. St. 352 ; Campfield v. Ely, 13 N. J. Law, 150 . But this does not seem to be the modern English doctrine (Corner v. Shew, 3 Mees. & W. 350), nor the law of this state.' In this state the leading case in point seems to be Ferrin v. Myrick, 41 N. Y. 315 . In that action it appeared that gravestones had been furnished to mark the graves of the administrator’s intestate. Suitable gravestones are a part of the funeral expenses. 2 Williams’ Ex’rs (9th Ed.) 171 ; Matter of Howard’s Estate, 3 Misc. Rep. 170 ; Owens v. Bloomer, 14 Hun, 206 . The administrator bad sufficient assets of the estate in his hands to pay the same. Plaintiff, who furnished the tombstone,

“The following principles are settled by these authorities : (1) That for all causes of action arising upon a contract made by the testator in his lifetime, an action can be sustained against the executor as such, and the judgment would be de bonis intestatoris. (2) That in all causes of action where the same arises upon a contract made after the death of the testator, the claim is against the executor personally, not against the estate, and the judgment must be de bonis propriis. That these different causes of action cannot be united in the same complaint.” Ferrin v. Myrick, 41 N. Y. 322 .

The court further say, at page 825:

“It is certainly the duty of the executor to pay the funeral expenses .of the deceased from his estate, and’ it has been well held that suitable gravestones are a part of such expenses. 2 Williams’ Ex'rs, 871, and note ; 2 Redf. Wills, 224. The expenses do and should fall npon the estate and not upon the executor. But it does not follow, as a logical sequence, that an action at law can be maintained against the estate to recover the amount. I have endeavored already to show why the action should not be sustained against the executor as such, and why it may be sustained against him personally. It ought to be added that, in case of the fraud or insolvency of the executor, an equitable cause of action would probably be thereby created against the estate, which could be enforced in behalf of the creditor, and'which would enable him to maintain a claim against the estate directly.”

This case seems to have been cited with approval in many cases in the court of appeals and the lower courts. Austin v. Munro, 47 N. Y. 366 ; Casoni v. Jerome, 58 N. Y. 321 ; Patterson v. Patterson, 59 N. Y. 586 ; Cardot v. Barney, 63 N. Y. 288 ; Wood v. Tunnicliff, 74 N. Y. 46 ; In re Knapp, 85 N. Y. 297 Wetmore v. Porter, 92 N. Y. 82 ; Barry v. Lambert, 98 N. Y. 300 , 516 ; Schmittler v. Simon, 101 N. Y. 558 ; Blood v. Kane, 130 N. Y. 520 ; 42 St. Rep. 549 .

In the case at bar the contract was made with Elisha Flint individually, and under thé above authorities the undertaker would be obliged to sue him as an individual. He could not maintain an action against him as administrator in the first instance. 7 Am. & Eng. Enc. Law, 340. Can the undertaker maintain this special proceeding ?

Section 2727 of the Code of Civil Procedure provides that:

“A pe.ilion praying for the judicial settlement of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented in a case prescribed in the last section by a creditor or a person interested in the estate or fund. * * *”

Section 2514, subd. 3, defines the words “debts” and “creditor” as follows:

“The word ‘debts’ includes every claim and demand upon which a judgment for a sum of money, or directing the payment of

money, could be recovered in an action ;• and the word ‘creditor’ includes every person having such a claim or demand.”

Subdivision 11 of said section defines the expression “person interested" as follows:

“The expression ‘person interested,’ where it is used in connection with an estate or a fund, includes every person entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. * * *”

The jurisdiction of surrogates’ courts must be exercised in the cases and. in the -fnanner prescribed by statute. Section 2472. It seems that, under the decisions, and under the definition above quoted, the holder of a claim for funeral expenses is not a “creditor” of the estate. These expenses are not to be treated as a “debt” against the decedent, but as a charge upon the estate, the same as the necessary expenses of administration. Patterson v. Patterson, 59 N. Y. 574 , 585. See, also, cases above cited. This rule is universally recognized by the text writers, Crosw. Ex’rs & Adm’rs, § 391; Schouler, Ex’rs, § 421; Woerner, Adm’n, § 357; 2 Williams’ Ex’rs, § 169. Although the holder of a claim for funeral expenses is not a creditor of the estate, his claim is a first charge upon the assets of the estate is payable with the other expenses of administration, before the claim of any creditor of decedent. Patterson v. Patterson, 59 N. Y. 564 ; Ferrin v. Myrick, 41 N. Y. 315 . Does this make him a “person interested" in the estate or fund, 'within the meaning of that expression as used in the Code? If it does he is entitled to maintain this proceeding.

To be a “person interested” one must entitled to “share” in the estate or the proceeds thereof, or in the fraud. Upon the facts above stated, is this petitioner now entitled to share with any one in the assets of the estate or the proceeds thereof?. Is he entitled to share in the proceeds of this estate with the surviving brother of decedent ? Under the above statement of law, it cánnot be that he is. He made his contract with the brother as an individual. He has his remedy for the collection of this claim. The law says his claim is against the Brother individually. The cases hold that, under certain circumstances, equity will step in and help him to collect the claim out of the testate of decedent; but no facts are shown here requiring the aid of equity, and this is probably not the tribunal in which the petitioner could obtain equitable relief, if he was entitled to the same.

In the administration of estates, there seems to be two classes of persons created by the Code who may be entitled to participate in the distribution of the assets," namely, “creditors" and “persons interested.” The creditors of an estate are entitled to be paid out of the proceeds thereof before there can be any distribution to the persons who are interested therein as “ husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise.” The law creates another class, whose claims are a charge upon the estate, and who are entitled to.be- paid out of the assets before either “creditors” or “persons interested.” This class is composed of persons holding claims against the estate for expenses of ad

Upon the final judicial accounting of an executor or adminisstrator, the common law gave the probate courts the power to allow the executor or administrator, out of the estate, the expenses which he had necessarily incurred in the course of administration. Young v. Brush, 28 N. Y. 667 , 673. The.power was afterwards conferred by statute. See 2 Rev. St. p. 93. § 58. And it is now provided in the Code that “in all cases such allowance must be made for their necessary expenses actually paid by them as appears just and reasonable.” Code Civ. Proc. § 2730. But, so far as I can find, it has always been held by these courts that persons holding these claims cannot obtain payment of them by proceedings in a surrogate’s court. Hoes v. Halsey, 3 Dem. Surr. 577 .

Counsel for petitioner relies on Patterson v. Patterson, 59 N. Y. 582 , Dalrymple v. Arnold, 21 Hun, 110 ; Laird v. Arnold, 25 id. 4, and In re Laird, 42 id. 136, to support his contention that the petitioner is a creditor of the estate of decedent, and that he is also a “person interested” in the estate.. Patterson v. Patterson simply holds that one who has paid the funeral expenses of a decedent is entitled to set the amount of such payment up as a counterclaim in an action brought, against him by the decedent’s personal representative. This right is recognized by all the authorities. The decision in the remaining cases seems to have been founded on chapter 267 of the Laws of 1874, which has been repealed by chapter 245 of the Laws of 1880. The provisions of chapter 267 of the Laws of 1874 do not seem to have been reenacted in any of the subsequent statutes. It is now held that the holder of a claim for funeral expenses is not entitled to maintain a proceeding for the sale of real estate to pay the same. In re Corwin’s Estate, 10 Misc. Rep. 196 ; 64 St. Rep. 10 .

Under the law as it now stands, the estate of a person dying intestate is to be distributed as follows: (1) All charges upon the estate for expenses of administration are to be paid. (2) The creditors of the intestate are next to be paid. (3) The balance remaining after these payments is to be distributed among the “persons interested” bribe estate as “husband, wife” etc., according to their respective interests. The petitioner belongs to the first class, It follows that he is not, within the cases cited, and the definitions given in the Code, a “ creditor” or a “person interested” in the estate. He is, therefore, not 'entitled to institute these proceedings, and his petition must be dismissed. Petition dismissed.