(concurring) — I concur in the conclusion reached on the question discussed and decided in the foregoing opinion, and, also, in the disposition made of the entire case. The appellant, however, in addition to the contention determined in the opinion, made the further contention that a wife is not, either at common-law or in virtue of the statute, personally liable for the burial expenses of her husband, where she has not contracted to pay them and he *16leaves her no estate. This question has seemed to me of sufficient interest and importance to be worthy of notice, and since it is presented by the record and thus necessarily decided, I shall briefly express my views upon it.
The cases with substantial úniformity agree that at common law a husband was personally liable for the funeral expenses of his wife, whether or not she left an estate of inheritance, or- whether or not he had expressly contracted to pay them. In re Weringer’s Estate, 100 Cal. 345, 34 Pac. 825; Sears v. Giddey, 41 Mich. 590, 2 N. W. 917, 32 Am. Rep. 168; Brand’s Ex’r. v. Brand, 109 Ky. 721, 60 S. W. 704; Kenyon v. Brightwell, 120 Ga. 606, 48 S. E. 124; Staples’s Appeal, 52 Conn. 425; Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Jenkins v. Tucker, 1 H. Bl. 90. And this although the wife at the time of her death was living separate and apart from the husband. Cunningham v. Reardon, 98 Mass. 538, 96 Am. Dec. 670.
But while the courts agree substantially on the rule, they are not so unanimous as to the reasons for the rule, or as to the grounds upon which it rests. In the Georgia case cited, it was held that the duty of the husband to defray the funeral expenses of the wife grew out of the obligation of the husband to furnish the wife with the necessaries of life, while in others it is based on the ground of duty arising from the relation of the parties. Subject to the laws passed in relation to the public health, the husband has the right of possession of the body of his deceased spouse between death and burial; he has the right to direct the place and manner of burial, and may change the place of sepulture at any time; he may recover in damages against any one who unlawfully mutilates the dead body, or otherwise wrongfully interferes with ij;; and neither the court in probate, nor the personal representative of the deceased, if such representative is other than the surviving husband, has any right to interfere with such possession. From these rights arise the corresponding duty of bearing the expenses of the interment.
*17Whether the common law imposed the duty upon the wife to bury the husband the authorities are not so clear. It is stated as the general rule in 12 Cyc. 1449, that the wife is not bound to use her separate property for the payment of the husband’s funeral expenses. But one case is cited to support the text (Robinson v. Foust, 31 Ind. App. 384, 68 N. E. 182, 99 Am. St. 269), and that one seems not in point. The question before the court was whether a wife who supported her husband during his last illness out of her separate property on the promise of the husband’s grandfather to make a provision for her in his will, could enforce the contract against the grandfather’s estate. The court held the contract enforcible, but did not discuss the question here involved, and clearly it was not before them. Mr. Schouler, on the other hand, seems inclined to the opposite view; saying, however, that the obligation rested on a weaker foundation than the corresponding obligation of the husband. See Schouler’s Domestic Relations (5th ed.), § 211.
In the case of Chapple v. Cooper, 13 M. & W. 252, cited by both of these authorities, the court took the view that the obligation of the husband and wife were alike in these respects, although the question before the court was whether an infant wife could bind herself by contract to answer for the funeral expenses of her deceased husband, the court deciding that she could. I am unable to find any common law case where the question was squarely decided. It would seem, however, that the question is determined by the selection of the ground on which the liability rests. If the funeral expenses are to be treated as necessaries, then clearly the wife is not responsible, as her separate estate is not liable for her husband’s or her families’ necessaries at the common law. But if the obligation rests on the ground of duty arising from the marriage relation, then it seems to me just as clear that the wife may be charged personally with the expenses of burial. This latter view is, to my mind, the correct one, as *18the right of the wife to the body of her deceased husband is the same as the right of the husband to that of his wife. Foley v. Phelps, 1 App. Div. 551, 37 N. Y. Supp. 471; O’Donnell v. Slack, 123 Cal. 285, 55 Pac. 906, 43 L. R. A. 388; Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 49 Am. St. 762, 19 L. R. A. 558; Hadsell v. Hadsell, 7 Ohio C. C. 196; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 28 Am. St. 370, 14 L. R. A. 85; Durell v. Hayward, 9 Gray (Mass.) 248, 69 Am. Dec. 294; Chapple v. Cooper, supra. See, also, Pierce v. Proprietors Swan Point etc., 10 R. I. 227, 14 Am. St. 667; Snyder v. Snyder, 60 How. Pr. (N. Y.) 368; Renihan v. Wright, 125 Ind. 536, 25 N. E. 822, 21 Am. St. 249, 9 L. R. A. 514.
There is no direct provision of the statute making the wife liable for the funeral expenses of her deceased husband, nor is there much that indirectly supports such a rule, outside of the fact that the statute grants the wife greater property rights than she had under the common law, and imposes upon her a corresponding increase of liability. A woman now does not surrender her personal estate to her husband on entering into the marriage relation, nor does the husband have the profits from her separate real property. But her earnings during the relation are community property of which the husband has the management and control, and are as directly liable for the support of the family as are his own earnings. So also the expenses of the family and the education of the children are made by statute chargeable alike upon the separate estate of both spouses. Bal. Code, § 4508 (P. C. § 3874). Under this provision of the statute we have held the wife personally liable for medical and hospital services rendered the husband during his last illness, basing the decision on the ground that such services were for the benefit of the family, and the expense created thereby a family expense within the meaning of the statute. Russell v. Graumann, 40 Wash. 667, 82 Pac. 998. It may be that the expense of *19burying the husband could be recovered upon the same principle, but I prefer to rest my conclusion on the ground that it is a common law liability.
The judgment appealed from is therefore without error, and the order of affirmance proper.
Chadwick, J., concurs with Fullerton, J.