Estate of ANN FITZPATRICK, Deceased

Estate of ANN FITZPATRICK, Deceased. [No. 2,623; decided May 19, 1885.] Funeral Expenses.—The Surviving Husband is Liable for the funeral expenses of his wife, where he has resources sufficient to respond. Ann Fitzpatrick, a married woman, died intestate, on May 27, 1883, in San Francisco, a resident thereof, leaving separate estate therein. She left a surviving husband, Patrick D. Fitzpatrick, and also a sister named Bridget Curley, as her heirs. Letters of administration were duly issued to the surviving husband on July 19, 1883. On March 26, 1885, the administrator filed his final account, which contained an item of $284 for the funeral expenses of his deceased wife. The sister of the decedent objected to this item, on the ground that the surviving husband is liable therefor, he having the pecuniary ability to pay, and it being averred that he had such ability. The objection was sustained, and the item disallowed. Matt. I. Sullivan and J. E. Abbott, for administrator. E. N. Deuprey and J. M. Burnett, for contestant. [MAJORITY — COFFEY, J.] COFFEY, J. I am unable to find any authority anywhere exempting the surviving husband from liability for the funeral expenses of the deceased wife, where he has resources sufficient to respond; and the court is destitute of discretion in such case: Garvey v. McCue, 3 Redf. 315. Services Rendered by Physicians and Undertakers to a married woman should be paid by her husband, if he is able to pay them, rather than out of her estate: Estate of Weringer, 100 Cal. 345, 34 Pac. 825; note in 98 Am. St. Rep. 647; Constantinides v. Walsh, 146 Mass. 281, 4 Am. St. Rep. 311, 15 N. E. 631; Callaway v. Estate of McPherson, 67 Mich. 546, 11 Am. St. Rep. 596, 35 N. W. 114.