As matter of law, a husband is bound to bury the body of his deceased wife, but he may now be allowed the funeral expenses out of her estate, if she have any ; and the executor or administrator is. ultimately liable therefor, in most instances, But where, in the absence of the personal representative or the person bound to bury a dead body, or from the necessity of the case, another incurs the expense of a proper burial, he may recover it from the person *72or estate that was bound to do it (Appendix to 4 Redf. R., 527). An examination of the authorities collated by Mr. Redfield (Redf. Surr. Prac., 3rd ed., 465), and of those cited in Rappelyea v. Russell (1 Daly, 214), and in Patterson v. Patterson (59 N. Y., 574), discloses the fact that, in this case, features are presented which do not exist in any of the cases relating to the subject. Here, the mother of the deceased, and in the presence of Mr. Quin, the husband, assumed the entire control of the arrangements for the burial; sending for the undertaker, and directing him to spare no expense, as it was the last thing she could do for her daughter. This clearly showed an intention on her part to personally defray the charges. That the undertaker acted in pursuance of her request, is sufficiently apparent from the amount of bis bill. It is equally clear that she was personally liable to him for it. As her daughter and the husband were living with her, and the death occurred under her roof, it was not unnatural that she should have had something to say in regard to the funeral arrangements, but she went much farther than to merely consult and advise ; she, officiously and in the presence of the husband, assumed the whole direction, ignoring his rights and duties in the premises, and thus relieved both him and the estate of his wife from the obligation otherwise imposed upon them by law.
There is another aspect of the case. It is not pretended that the executors of Mr. Hill, as such, incurred any obligation in regard to the funeral expenses. It was beyond the scope of their executorial powers. Mrs. Hill, finding that she could not successfully resist *73the undertaker’s claim, sought by his assignment of it, to transmute it from one against herself, into one in the executors’ hands against the estate of her daughter. In other words, they purchased a claim which existed against her personally, and now seek to use it as a counterclaim against the amount of their liability as fixed by the decree. It seems to me that they might, with equal propriety, have purchased any debt which Mrs. Quin had incurred in her lifetime, and asked to have it allowed in this matter. Of course, that could not be done, because it would be a matter for the administrator to deal with in the due course of administration, to say nothing of their want of power as executors to purchase.
If the executors lacked the power to use the funds in their hands, to invest in this bill of Mr. Ireland, then it cannot be used here in the manner sought j and my researches have not enabled me to find any authority which would sanction such a procedure on their part. Mrs. Hill was aware of her personal liability to the undertaker, and had been sued by him before the decree fixing the amount due to the estate of Mrs. Quin had been entered. This funeral bill did not enter into consideration on that accounting; nor could it, as it then would have been an individual claim of Mrs. Hill. The decree fixed the sum which was due from the estate of John S. Hill, deceased, to Mrs. Quin or her legal representative, and the amount of this bill, which accrued since the death of the testator, and which the executors own personally, cannot be the subject of set-off or counterclaim against their liability on account of the estate they represent. *74In order to warrant the allowance of such counterclaim, the debts must be mutual, and due to and from the same persons in the same capacity (Dudley v. Griswold, 2 Bradf., 24, and cases cited).
As Surrogate Bradford well said, in the principal case, “ the business of an executor or administrator is to settle the estate, pay the debts and' distribute the surplus, and not to speculate in demands against the creditors ” (and he might have added “ legatees or distributees”). “It is not a legitimate purpose for 'which to employ the trust funds, to buy up debts against claimants; and if he does so, he must take the risk of such dealings upon his own individual responsibility. On the other hand, if such transactions be lawful, the money advanced to purchase such claims may be legally charged to the estate; and the consequences of such a doctrine may, in many cases, be most disastrous.”
There are other reasons, unnecessary to be considered here, why the counterclaim should not be allowed. The grounds stated are deemed sufficient to warrant its rejection, and therefore, no good cause to the contrary being shown, the direction of the decree in this respect should be obeyed by the executors.
Ordered accordingly, with costs of the motion.