
    Barry Funeral Home v. Norris.
    Feb. 9, 1953
    No. 38667
    19 Adv. S. 1
    62 So. 2d 768
    
      
      Daniel, McKee & McDowell, for appellant.
    
      
      Brown & Brown, for appellee.
   Lee, J.

Barry Funeral Home probated its claim for funeral expenses against the estate of L. T. Clinton, Jr., deceased. There was a contest by the administrator, and, upon final hearing, the court disallowed the claim. From the decree entered, the funeral home appeals.

On July 3, 1950, Nick Waters, in his automobile, struck and injured L. T. Clinton, Jr., a negro boy about four and a half years old. Waters took the child to a clinic where he died shortly afterwards. Waters, an undertaker himself, found out from L. T. Clinton, Sr., the boy’s father, that he had no burial insurance and was without money, and thereupon contacted H. W. Barry of the Barry Funeral Home for the purpose of making arrangements for the burial. He and Barry agreed as to the type of the funeral, which would reasonably amount to about $100.00, and tbat Waters would pay sucb expense. Waters made tbis agreement known to L. T. Clinton, Sr., and to J. D. Norris, wbo was subsequently appointed administrator.

Later Barry found out tbat Waters carried liability insurance on bis car, and be decided tbat be could likely sell a more expensive funeral. To tbat end, tbe next day,. be talked to J. D. Norris, tbe landlord of tbe Clintons. However, be admitted, on cross-examination, tbat Norris neither authorized nor agreed to pay therefor. Following tbis, Barry showed L. T. Clinton, Sr., tbe layout for tbe funeral but admitted be knew Clinton bad no property and could not pay tbe bill. Both Clinton and Norris testified that they assumed no responsibility whatever for tbe funeral expenses.

At sometime during these negotiations and before tbe burial, Barry called Waters over tbe telephone and told of a conversation with tbe attorneys for tbe insurance company, in which the attorneys expressed tbe belief tbat tbe insurance company would pay tbe expenses, and tbat be was going to get paid for bis regular service. Waters replied tbat sucb course would be all right with him, but, in tbat event, not to look to him further. The funeral as furnished aggregated $370.00, which included $175.00 for a casket and professional services, $175.00 for a steel vault, and tbe balance for clothes, flowers and a marker.

Appellant contends tbat tbe contract between it and Waters, if established, bad no bearing on tbe liability of tbe estate; tbat the contract was within tbe statute of frauds; tbat it was vitiated by tbe subsequent action of tbe parties; and tbat the liability of tbe estate remains.

Appellee contends that Waters and Barry entered into a valid agreement whereby Barry was to furnish tbe type of funeral agreed upon and Waters was to pay the expense ; tbat neither tbe father nor the estate subsequently assumed any liability for sucb expense; and tbat both tbe father and the estate were fully released from any liability 'to pay such expenses.

It is true that a father is under the duty to pay the funeral expenses of his minor child if he is able; and if he is not able, such expenses may be paid out of the property of the child. 21 Am. Jur., Executors and Administrators, Sec. 332, page 570.

Funeral expenses are not a debt of the decedent, but constitute an obligation of the administrator, and may be paid as a part of the costs of administration. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Tom E. Taylor Undertaking Co. v. Smith’s Estate, 183 Miss. 45, 183 So. 391.

But a third person may, by oral contract, assume the payment of the funeral expenses of another and such contract does not fall within the purview of the statute of frauds. See 49 Am. Jur., Statute of Frauds, Section 103, page 455, where it is said: “The well-established rule is that a promise to pay the funeral expenses of another is not a promise to answer for the debt of another where the undertaking is that the promisor shall be primarily responsible and credit is extended solely to him. ’ ’ See also annotations in 134 A. L. R. 634.

The same principle of law was applied in Biglane v. Hicks, (Miss.) 33 So. 413, where it was held that Big-lane’s oral promise to pay the charges and hospital fees for the treatment of his daughter, when there was no evidence as to whether or not the bill was ever charged to the daughter, was not void under the statute of frauds, and that he was liable therefor.

Of like effect is the case of Vicksburg Infirmary v. Hines, Director General of Railroads, 134 Miss. 162, 98 So. 530, the first syllabus of which is as follows: “ Where an employee of a railroad company is received in a hospital for medical treatment, and continued services are rendered to such employee, at the special request of an authorized agent of the railroad company, and upon his promise that the company would pay for the services already rendered, as well as future services, and there is no evidence that the bill for such services was charged originally to the employee, such promise or agreement is an original one, having a consideration, and it is not void under the statute of frauds.” Compare also Greenwood Leflore Hospital Com. v. Turner, 213 Miss. 200, 56 So. 2d 496.

On the disputed issues of fact, in our opinion, the learned chancellor had ample evidence to sustain his findings that a valid contract was entered into between Waters and Barry whereby Waters promised to pay the funeral expenses and became primarily responsible therefor and Barry accepted this promise and extended credit solely to Waters; that the contract was not within the statute of frauds; and that the estate was released from any liability for the funeral expenses. The conclusion of the court was also fortified with proof that neither Clinton, the father, nor Norris, the subsequent administrator, authorized or assumed liability for the funeral expenses after Barry sought a rescission of his contract with Waters.

It follows that the decree of the lower court ought to be, and is, affirmed.

Affirmed.

McGehee, G. J., and Hall, Arrington and Lotterhos, JJ., concur.  