Opinion
June Term, 1821.
1. The personal representative of a deceased person is not liable to pay for the funeral expenses of the deceased unless he contracts for them or subsequently promises to pay for them — there is no implied promise to pay for them.
2. Where an individual, of his own mere motion, buried a deceased person, and without giving notice to the administrator of the expenses, sued him, he was not allowed to recover.
3. A count against an executor, charging him upon his promise as executor, may be joined with a count upon promises of his testator.
4. Where, on the division of an intestate's slaves among his children, an allotment is made to A greater than that to B, another child, and to equalize the division A is directed, out of his share of the property, to pay a certain sum to B, this gives B a lien on the slaves for that amount; and if A's administrator sell the slaves allotted to A before such payment is made to B, the balance only of the purchase money will be assets in the hands of the administrator, after the sum directed is paid to B.
FROM HALIFAX. The declaration in this case contained five counts. The first was on an implied promise of defendant's intestate to pay plaintiff for board, etc. The second was in indebitatus assumpsit, laid on the promise of the administrator (395) as such. The third was a count quantum valebat, laid on the promise of the administrator as such. The fourth was a count for funeral charges against the defendant as administrator, laying the promise to have been made by him as such. The last count charged that in consideration the plaintiff would give her note to the defendant for a debt due him as administrator, he as administrator promised he would set it off against so much of her account against the intestate, and then alleged a breach of the promise by compelling the plaintiff to pay the note, which increased the amount of his assets.
The plaintiff on the trial below produced in evidence an account for board of the intestate and of his servant during his lifetime, and for keeping and feeding intestate's horses, which was admitted; there were also in the account the two following charges, viz: "To making sheet and pillow-case, £ 0.50; to one pillow furnished him when deceased, £ 0.50." To establish these charges the plaintiff proved that the intestate, Dr. Hooker, died at her house; that he was buried before administration granted, and that after his death she rendered the services and furnished the pillow for his funeral. There was no evidence of an express promise by the administrator to pay the funeral expenses.
The defendant in support of his plea of fully administered produced an order of the County Court of Tyrrell to divide the negroes of Stephen Hooker among his distributees, and appointing several persons therein named to make such division, and a copy from the records showing that such division was made, from which it appeared that the negroes assigned to defendant's intestate exceeded his dividend of personal estate by $174, and by the return he was directed to pay that sum to his younger brother; the defendant then offered to the jury the receipt of the guardian of the younger brother for $174, dated before this suit was brought, to show an expenditure of assets (396) to that amount; the court would not permit it to be read on the ground that the testimony of the guardian was better evidence. The defendant also contended that as the sum of $174 was due from the intestate on the partition of the negroes, and that as two of the negroes divided were sold by the administrator after the death of the intestate, the administrator should not hold said sum as assets but was bound to pay it to the younger brother, who had a lien on the negroes to that amount. The court ruled that the whole value of the negroes was assets. The defendant pleaded outstanding bonds at the time of the plaintiff's suit brought, and proved a number of bonds outstanding. The court instructed the jury that although there might not be assets to pay bonds, that the administrator was bound to pay the plaintiff the ten shillings for the funeral charges in preference to bond debts, and that if they believed the articles were furnished for the funeral that they would find assets to the amount of ten shillings to pay said funeral charges; and the jury found accordingly. It was admitted there were assets to satisfy the funeral charges provided they were entitled to priority of bonds.
A new trial having been refused, defendant moved in arrest of judgment for misjoinder of counts on promises of the intestate, with a count on the assumpsit of the administrator; this was overruled, and defendant appealed.
A. Henderson, Seawell, Ruffin and Hogg for the appellant.
Gaston and Mordecai for the appellee.
The heavy costs accumulated by a protracted litigation have made this suit very important to the parties; and though the two items for funeral charges amount together to but ten shillings, yet whether the defendant be liable to pay them depends upon principles which are not to be understood without some research. I must own that the argument, which has been able on both sides, has presented the subject in many lights which were new to me, and together with my own reflections has produced an opinion altogether different from what I have ever entertained on the subject. Notwithstanding the reasons drawn from propriety and decency tending to show the defendant's liability, the only inquiry I have permitted myself to make is, what is the law? My inquiries have ended in believing that it is in favor of the defendant.
Of the two classes of contracts, express and implied, this cannot belong to the former, since there was no debt owing from the intestate and no engagement entered into by him. Does it belong to the latter? It is said that it does, because the defendant was subject to a legal liability to pay this debt, and that in every such case the law implies a promise. His liability is inferred from the language in which the duty of an executor or administrator is stated in the elementary books with (402) regard to the payment of debts. "Funeral expenses, according to the degree or quality of the deceased, are to be allowed of the goods before any debt or duty whatsoever, for that is opus pium et caritatis." 3 Inst., 22. "He must observe the rules of priority in the payment of the debts; otherwise, on deficiency of assets, if he pays those of a lower degree first he must answer those of a higher out of his own estate, and first he may pay all funeral charges." 2 Bl., 511. "The expenses attending the funeral shall be allowed in preference to all debts and charges." Toller, 191. These writers and all others, I believe, make a distinction between debts and funeral expenses; this position is warranted by them, that if the administrator or executor pays debts of inferior dignity in preference to those of a superior dignity, of which he has notice, he shall be liable to the latter de bonis propriis. Funeral expenses are not a debt but properly a charge upon the estate, and if the executor voluntarily pays them he shall be allowed such payment before all others, because it is a work of charity and piety.
I know of no case where an administrator is liable in his representative character on any contract not made by the intestate, for if he is sued on a contract made by himself, though relative to the estate of the intestate, the suit must be in his own right. Declaring on an insimul computassent against an administrator, as such, is not an exception to the rule, for that raises no new debt, but is merely an acknowledgment of the old one. He is liable as far as he has assets for the debts, covenants and contracts of his intestate, although the cause of action accrue not till after the death, as on a bond or note which became due after that event; but there the duty is created by the intestate. But if the duty arise after the death of the intestate the administrator is liable in his private capacity. For rent in arrear in the testator's lifetime his representative is liable in that character and can be sued only in the detinet, and may plead fully administered; whereas for the subsequent rent he is (403) personally liable. Comyn's Digest, "Administration," 14, B. So if he promise to pay a debt, in consideration of forbearance or of assets, he must be sued in his individual character; the law guarding with caution its principle that if an administrator is liable beyond the assets it must be by his own act, sustained by a proper consideration.
But admitting for the present that there is a legal liability on the defendant, and that the law therefore implies a promise (which I shall presently show not to be the case), it may be asked what has made the defendant a debtor to the plaintiff on these charges? The defendant's intestate was not buried by the plaintiff or at her expense, and besides the sheet and pillow there must have been other articles suitable to the sphere and condition in which Dr. Hooker had lived and which doubtless were furnished before the state of the assets was ascertained. Every individual who furnished any one article has the same right to sue with the plaintiff and to demand payment from the defendant in preference to creditors. A man is legally liable to pay his own debts, and the law implies a promise to his creditor that he will do so; but if another, voluntarily and unasked, pays the debt the law does not imply a promise to him. In such case assumpsit will not lie without an express promise to repay it, for the debtor may have a set-off or some good reason to resist the payment, and another person shall not pay it for him whether he will or not. It is true that if a party derives benefit from the consideration it will be evidence to the jury of a previous request, as if a man pays money or buys goods for another without his knowledge or his request, and he afterwards agrees to the payment or receives the goods. But in this case there is no reason to believe that the articles charged were furnished with the knowledge of the defendant; of course (404) his assent cannot be implied. The principle that as the charge accrued subsequent to the death of the intestate the defendant is not liable in his representative character is, as I conceive, fortified by a case I have met with since the argument wherein it is laid down "that an executor is not liable to pay for funeral expenses unless he contracts for it." Aston v. Sherman, Holt, 309. The case is quoted with apparent approbation by 1 Com. on Contr., 529, who states the reason of the decision to be that such a charge, if sustainable against an executor, would make him liable de bonis propriis. In other words, as neither debt nor duty was created by the testator, if the right to sue the executor as such were admitted, it would follow that he would be liable to pay for funeral charges whether he had assets or not; but as the law will not so charge him without his own act and consent it gives no remedy to a party voluntarily performing the service. As on this ground I am satisfied there ought to be a new trial, I have thought it unnecessary to give an opinion on any other points raised in the argument.
The defendant's intestate was never debtor for the amount claimed by the plaintiff for funeral expenses, and if the defendant is liable he became so after the death of his intestate, and if he became so after the death of the intestate it was by the act of the plaintiff, who furnished the articles for the funeral from her own mere motion and not at the request of the defendant; if so, he ought to have been acquainted with that fact prior to the commencement of this suit, otherwise he will be subjected to costs without having been guilty of any default or improper conduct. It is not like the case where the administrator is sued for a debt due by his intestate of which, until suit is brought, he had no knowledge. In that case his intestate might have been sued, and his death neither places the plaintiff in a worse nor the defendant (his administrator) in a (405) better situation than he himself stood in before his death.
I entertain the opinion that the counts in the declaration are properly joined and that the amount due by the intestate on a division of his father's estate is not assets in the hands of his administrator, and that the rule for a new trial should be made absolute.
This action is brought in part for a pillow and winding sheet furnished to bury the intestate of the defendant, without his previous request, subsequent promise or plaintiff's giving notice of the charge before action brought; and I am decidedly of opinion that that part of the case cannot be supported, and I will examine the consideration whether those acts, being done by a stranger, for no one and at the request of no one, but for the purpose of interring the dead, are not in law mere acts of charity and humanity, which create no debt or legal duty; but I am satisfied by reason and analagous authority that before an action can be sustained notice must be given to the executor or administrator. Where one person officiously pays the debt of another an action cannot be supported on such officious payment (for no person can make another a debtor without his consent); but it may be admitted that the intestate dying at the house of the plaintiff, and there being no administrator to bury the corpse, the act of the plaintiff was not officious; but certainly notice of the performance of the duty must have preceded the suit, for until notice the defendant was not put in the wrong, and it would be contrary to all our notions of justice to subject a person to an action and its consequences without a resents. The consequence of the doctrine contended for by the plaintiff would in such cases lead to this, that an administrator or executor who was not on the spot might be liable to many different persons; one might furnish the plank to make a coffin, another the nails or screws, another the lining, another the ropes, another the pillow, another the shroud, and so (406) on, perhaps, to the number of twenty, and if one could support an action without notice so might each one; but the law is not so unjust. Where the liability of a person arises from an act of which he is not bound to take notice, or where the knowledge rests more peculiarly with the plaintiff, there notice is necessary. An administrator or an executor is bound to know so far as to be liable to an action for the debts of the intestate or testator, for he is his privy, he represents him; but the assignor of a negotiable note is not bound to take notice of the omission of the maker to pay the assignee upon demand; he must have notice before suit; it must be laid and proven, because the omission to pay is more peculiarly known to the assignee, who has failed to get payment; so here the services are more peculiarly known to the person performing them than to the administrator. For these reasons I think the charge for funeral expenses cannot be sustained. I differ from the presiding judge below upon the question whether the difference due from the intestate on the division of the negroes among the children of his father is assets; in other words, whether the negroes allotted to him are assets to their full value or with a deduction of that sum. I think it formed a charge upon the negroes to that amount. The charge was made by the commissioners without the agency of the other children; their property to the amount of the difference was taken from them by men acting under the authority of the law, and the law would never take from them property and give them only the personal liability of the person to whom the more valuable lot was awarded; and the law which takes from them the possession of their property gives them the most ample security; in fact, so much in value of the negroes is theirs, and nothing but the impossibility of dividing them converts that property into a charge upon the negroes, together with a debt upon the child, for he takes them cum onere. Suppose the sheriff standing by (407) when the division is made, with an execution to the full amount of all that child's property, and the moment the division is made he levies on the negroes so allotted and applies them to the discharge of the execution, and if the opinion below is right such, I think, would be the consequence. I think there is no misjoinder of counts. It is perfectly settled that you may join a count against an executor charging him upon his promise as executor, that is, to pay out of the assets, with counts upon promises made by his testator; in each case the executor is liable in his representative character, that is, out of the assets. It is true the precedents furnish only cases where the testator gave birth to the obligation or received the consideration of the promise, but the reason of the thing applies to all obligations thrown upon the executor by virtue of his office; and if in this case the executor was liable to pay the funeral expenses out of the assets, without a precedent request or subsequent promise, or had specially promised to pay out of the assets, the judgment would be de bonis testatoris; and although the testator could not have received the consideration of the promise in case of funeral expenses, yet in this view of the case the executor is performing a duty in his character of executor (to say the least) which the law tolerates by enabling him to retain for the expenses of them. As therefore the plaintiff might have made out such a case as would have supported the count, and if she had the judgment would have been the same as in the other counts, I can see no reason for arresting the judgment.
Cited: Parker v. Lewis, 13 N.C. 22; Jones v. Sherrard, 22 N.C. 182; Ward v. Jones, 44 N.C. 131; Ray v. Honeycutt, 119 N.C. 512.
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