This is an action by appellant, Edward N. Phillips, as administrator of the estate of Theodosia Phillips, deceased, against appellant, Charlie M. Phillips, and appellees, to secure an order for the sale of certain real estate owned by the decedent at her death, to make assets for the payment of certain liabilities of her estate. Issues were joined by the filing of general denials. On the trial, the court, pursuant to request, made a special finding of facts and stated its conclusions of law thereon, the facts so found being, in substance, as follows: Theodosia Phillips died intestate in 1921, leaving as her only heirs her husband, Charlie M. Phillips, and her parents Lee and Mary E. Tribbey. Edward N. Phillips qualified as her administrator in 1922. The decedent died the owner of personal property of the value of $335.71, and of the real estate involved in this action of the value of $2,000, which constituted the residence of the decedent and her husband at and before her death. The value of the services rendered the decedent during her last illness, by her physician and nurse, amounts to $172, which was paid by the administrator from her personal estate. The reasonable value of decedent's funeral, conducted by George C. Wyatt and Co. is $553, for which a claim has been duly filed. Said claim is just, due and wholly unpaid. Charlie M. Phillips, the decedent's husband, *Page 71 has sufficient property in his own name, subject to execution, to pay the expenses of the decedent's last sickness and funeral. The cost of administration, without a sale of decedent's real estate will not exceed $100, and if the same is sold, such cost will not exceed $250. The taxes due from said estate amount to $25.87. The decedent has no indebtedness except as stated above. She did not expressly contract to pay the expenses of her last sickness and funeral. Demand was made on the decedent's husband for the payment of such expenses, but payment was refused. An inventory and appraisement of said real estate, with additional bond, as by statute required, were duly filed and approved on the trial of the cause. On the foregoing facts, the court stated two conclusions of law as follows: "(1) The personal estate of the decedent, in hands of administrator, is sufficient to pay all debts for which her estate is liable. (2) Decedent's funeral expenses of $553 and last sickness expenses of $172 are debts for which her estate is not liable, but are properly chargeable against her husband, Charlie M. Phillips." Appellants' separate exceptions to each conclusion of law was followed by a judgment that the administrator of said decedent take nothing by his action, and that appellees recover their costs. In this appeal, appellants have challenged, separately, each of the conclusions of law on which said judgment is based.
From a consideration of the facts found, it is obvious that a determination of the following question will be decisive of this appeal: May an undertaker who has buried a deceased wife 1-3. enforce his claim for such services against her estate where the surviving husband has sufficient property subject to execution to satisfy the same? It is well settled that, at common law, the surviving husband of a deceased wife was liable for the expenses of her last sickness, and *Page 72 of her funeral. Rocap v. Blackwell (1923), 79 Ind. App. 232, 137 N.E. 726; Butterworth Sons v. Teale (1909), 54 Wash. 14, 102 P. 768, 18 Ann. Cas. 854; Kenyon v. Brightwell (1903), 120 Ga. 606, 48 S.E. 124, 1 Ann. Cas. 169; Bowen v.Daugherty (1915), 168 N.C. 242, 84 S.E. 265, Ann. Cas. 1917B 1161. As the common law is in force in this State, except where modified or abrogated by statute, we must hold, under the facts of the instant case, that the surviving husband of the decedent is liable for such expenses, unless the common law, as stated, has been superseded by some legislative enactment. Appellants rely upon § 2901 Burns 1914, § 2378 R.S. 1881, as affecting a change in the common law in this regard, but we do not so construe it. In our opinion, that section does not purport to create any new liability against decedents' estates, but only recognizes existing liabilities, and provides for the order of their payment. Rocap v. Blackwell, supra. Appellants state certain reasons for the common-law rule which requires a husband to pay the funeral expenses of his wife, and assert that the statutes of this State which emancipate married women from "the barbarities of her common-law bondage" leave the court free to give the section of the statute under consideration the construction for which they contend. In construing said section, we have not been influenced by the reasons on which the common-law rule in question is based, as it should not be held to be in derogation of such rule, unless it appears to be so under a strict construction. Thornburg v. American Strawboard Co. (1895), 141 Ind. 443, 50 Am. St. 334; Springfield, etc., Ins.Co. v. Fields (1916), 185 Ind. 230; Connecticut, etc., Ins.Co. v. King (1911), 47 Ind. App. 587. But if it could be said that the reasons for such rule were proper matters for consideration in this connection, *Page 73 we could not escape the fact that one of such reasons, and probably the principal one, is based on an obligation arising from the marital relation, apart from any property interests acquired through the wife. This clearly appears from the fact that, at common law, the duty of a husband to bury the body of his deceased wife "was as obligatory upon one to whom the wife brought no portion, as on him who had received the largest fortune." Kenyon v. Brightwell, supra. It thus appears that the funeral expenses, arising from the burial of the decedent in the instant case, might have been enforced in the first instance, by virtue of the common law, in a direct proceeding against her husband.
While the undertaker who buried the body of the decedent had the right indicated above, it does not follow that he was confined to such right in the enforcement of his claim. It 4. is generally recognized that the law, on equitable principles and grounds of public policy, imposes on the estate of every deceased person a liability for the reasonable cost of burying the body, usually designated as funeral expenses. 11 R.C.L. 223; Hildebrand v. Kinney (1909), 172 Ind. 447;Snyder v. Thieme Wagner Brew. Co. (1910), 173 Ind. 659, Ann. Cas. 1912A 774, note; Golden Gate, etc., Co. v. Taylor (1914), 168 Cal. 94, 141 P. 922, 52 L.R.A. (N.S.) 1152, Ann. Cas. 1915D 742; Schneider v. Estate of Breier (1906),129 Wis. 446, 109 N.W. 99, 6 L.R.A. (N.S.) 917; Patterson v.Patterson (1874), 59 N.Y. 574, 17 Am. Rep. 384; Fogg v.Holbrook (1895), 88 Me. 169, 33 A. 792, 33 L.R.A. 660. Being a matter which cannot be delayed, and ought not be preceded by unseemly controversy, the law gives the undertaker who performs the service a right to assert his claim, in the first instance, at *Page 74 his election, against the estate of the decedent, thus providing a means for securing prompt service, by relieving the one called upon to render the same from determining at his peril from what source he must make collection, and of the necessity of possible litigation to exhaust one before proceeding against another.Rocap v. Blackwell, supra; Stevens v. Williamson (1921),222 Ill. App. 258; Sears v. Giddey (1879), 41 Mich. 590, 2 N.W. 917, 32 Am. Rep. 168; Golden Gate, etc., Co. v. Taylor,supra; Fogg v. Holbrook, supra. By this we do not mean to say that an undertaker can fasten the ultimate liability on the estate of a married woman by proceeding against it in the first instance. Ultimate liability is not a matter with which he is concerned, but constitutes a question which may arise between the surviving husband and the personal representative of the decedent in a separate action, or by proper pleadings and service of process, if a claim is filed against the estate for such expenses. It seems clear to us that in whatever form the question may arise in this State, with the common law still in force on the subject under consideration, as we have held, the ultimate liability for the funeral expenses of a deceased wife rests on the surviving husband, unless relieved therefrom by some contractual or testamentary provision. Rocap v. Blackwell,supra. But, as we have indicated, this does not bar the enforcement of such claim in the manner disclosed by the finding in this action. It follows from what we have said, that the decisive question stated above must be answered in the affirmative. We hold, therefore, that the court erred in each of its conclusions of law. The judgment is therefore reversed, with instructions to the trial court to restate its conclusions of law in conformity with this opinion, and to render judgment accordingly. *Page 75