Under our statute (section 2597, Code 1907), funeral expenses are made the first preferred claim against the assets of a decedent's estate.
But, independent of any statute —
"Funeral expenses, says Lord Coke, according to the degree and quality of the deceased, at common law were allowed of the goods of the deceased, before any debt or duty whatever, and his burial was the first duty of an executor. If there was no executor, or if he was unknown, or not at hand, a friend or a stranger may attend to the duty, and bury the deceased in a manner suitable to the estate he leaves behind him; and the necessary expenses must be repaid him by the personal representative, having assets, though he neither ordered, nor had knowledge of the expenditure. 2 Williams, Exrx., 871." Gayle's Adm'r v. Johnston, 72 Ala. 254, 47 Am. Rep. 405.
In that case Brickell, C. J., further observed:
"The burial, of necessity, here devolves as a duty upon friends or relatives; for, until 15 days after death, there can be no administration, or grant of letters testamentary. Priority of payment of funeral expenses, as at common law, the statute secures. Code of 1876, § 2430. The amount of such expenses, when paid by a friend or relative, is regarded as money paid on request of the personal representative; and the law raises a promise to repay it, so far as he has assets. Hapgood v. Houghton, 10 Pick. 154."
In the earlier case of Hatchett v. Curbow, 59 Ala. 516, 521, Stone, J., said:
"Burial of the dead is a public * * * necessity, which, not being otherwise provided, may be furnished by a stranger, and the value made a first charge on the assets. Still, the expense of such burial must bear reasonable proportion to the condition and estate of the deceased; and if disproportionate, should be scaled to that standard."
Many cases on this subject are collected in the note to Fogg v. Holbrook, Ex'r, 88 Me. 169, 33 A. 792, 33 L.R.A. 660, 669. Two of the leading cases are Patterson v. Patterson,59 N.Y. 574, 17 Am. Rep. 384; and Hildebrand v. Kinney,172 Ind. 447, 87 N.E. 832, 19 Ann. Cas. 788.
As observed by the editor in the note above referred to (33 L.R.A. 661), the expenses which are thus chargeable upon the decedent's estate in favor of a stranger are those which are incident to the burial itself, and which cannot be postponed. Samuel v. Thomas, 51 Wis. 549, 8 N.W. 361; Sweeney v. Muldoon,139 Mass. 304, 31 N.E. 720, 52 Am. Rep. 708.
In Sewell v. Sewell, Adm'x, 199 Ala. 242, 74 So. 343, we held, in an action by an administratrix to recover money found on the person of the decedent and taken possession of by his father, that the father could show that part of the money was used by him to pay the burial expenses of the decedent.
Under the foregoing authorities it is clear that defendant's plea 3 exhibited a good defense to the action, and was not subject to any of the grounds of demurrer.
Plaintiff's special replication to that plea shows that her intestate left surviving him a widow, Adaline Phillips, and that he left a personal estate of less than $1,000 in value, of which his said deposit account was a part; and that that fund was exempt to the widow as a part of her statutory exemption. Code, § 4200.
In such a case, as several times held by this court, the right and title to all of the personal estate vests absolutely in the widow, and she is the proper party to take it, or to reduce it to possession by suit, if necessary. Jackson v. Wilson, 117 Ala. 432, 23 So. 521; Snead v. Scott, 182 Ala. 97,62 So. 36.
Presumptively, of course, the personal representative is entitled to recover all of the assets of the decedent's estate, and a debtor need not, and perhaps cannot, set up the widow's right, to defeat an action therefor — at least not unless the widow has previously claimed and intercepted the fund. But when, as here, the personal representative himself shows, by formal pleading, that the widow's claim is vested and absolute, he denies and defeats his own right of recovery.
Under an identical state of the pleadings, the same conclusion was reached by the Court of Appeals in the case of Lasseter v. Deas, 9 Ala. App. 564, 63 So. 735, wherein the distinction between the right to recover as representative and as widow was aptly pointed out by Pelham, J.
This objection to the replication was pointed out by defendant's demurrer, which was therefore properly sustained.
Under the pleadings, as framed, the issues of fact to be submitted to the jury were: (1) The payment by defendant of $140.75 to the undertaker for the expenses of the intestate's burial; (2) the necessity and reasonableness of such expenses; and (3) the ownership of the balance of intestate's deposit account, amounting to $49.25, paid by defendant to Mattie Phillips, and claimed by her as her own property.
Prima facie, the person who deposits money, and to whose credit it is entered on the books of the bank, is the owner of the fund, to whom the bank is bound to pay it; and, no adversary claim appearing, the bank is estopped to deny such ownership. 7 Corp. Jur. 639, § 323, and cases cited in notes 78 and 79; Bessemer Sav. Bk. v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am. St. Rep. 38. But as those authorities show, the presumption of ownership in the depositor is rebuttable, and will yield to competent evidence of ownership in another. It was competent for Mattie Phillips to testify to her ownership of a part of this deposit, and for defendant's president to testify that she claimed *Page 592 a part of it before it was paid out under her direction and authority.
Such testimony was not in contradiction of the terms of any written instrument of binding obligation between defendant and plaintiff's intestate.
It was competent for defendant to show the relation of Mattie Phillips to the intestate, in order to explain the fact of her custody of his remains, and to show that defendant was not a meddlesome volunteer, merely, in advancing the money to defray the necessary expenses of burial. For the same reason, also, defendant could properly show that plaintiff, who was intestate's lawful wife, refused to have anything to do with the burial.
Those matters being relevant to the issues, the trial court did not err in overruling plaintiff's objections to the statements made by defendant's counsel, in outlining defendant's case to the jury, that they would be duly shown by the evidence.
The assignments of error are very numerous. We have examined all of them and do not find any prejudicial error among the rulings complained of. We think the issues of fact were fairly submitted to the jury, under appropriate instructions from the trial judge, and that the judgment should be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.
On Rehearing.