FROM EDGECOMBE. On the issue of fully administered, it appeared that the defendant had notice of the claim before the action was brought, and the only question was, whether the defendant could retain the assets in his hands to satisfy a judgment he had obtained against the intestate in his lifetime.
His Honor, Judge NORWOOD, informed the jury that funeral expenses were preferred to debts of record, that the administrator was liable for them in his character of administrator, without a previous (22) request or promise. *Page 16
Under this charge the jury returned a verdict for the plaintiff, and the defendant appealed. Funeral expenses are to be paid in preference to any other debt, out of the assets of the deceased, not excepting debts due by record, even to the sovereign. They form a charge upon the assets, independently of any promise by the executor or administrator, upon the ascertainment of the fact that they are of that description, and proper for the estate and degree of the deceased. These enquiries, however, of course leave open the question whether they were unnecessarily or officiously incurred by a stranger. We disclaim the intention of weakening the claim of these expenses to a priority when we decided Gregory v. Hooker, 8 N.C. 394. But we should say again, in a case like the one alluded to, that notice of the fact that a pillow had been furnished, and was claimed as a funeral charge, should have been given before the action was brought and the assets exhausted. For although the pillow might have been entered in the account, yet it contained a great variety of articles, and was not presented as for a funeral charge, or any part thereof; nor was it made known that it contained any such item. In that case we did not pretend to say what would have been the rule if the executor had taken no orders for the interment of the deceased. But that an individual, who had contributed in so small degree to those expenses, could not, without previous notice, sustain an action against an administrator. For if the rule of law was different the administrator might, without any default on his part, be subjected to as many actions as there were items, of which the funeral bill was composed.
We concur in opinion with the Judge below, that these funeral (23) charges had a priority in a course of administration over the debts set up as a protection to the assets in the hands of the defendant.
PER CURIAM. No Error.
Cited: Ward v. Jones, 44 N.C. 130; Ray v. Honeycutt, 119 N.C. 512. *Page 17