
    [Philadelphia,
    April 10, 1826.]
    Case of the Appeal of ANN M‘GLINSEY, Widow and Administratrix of JOHN M‘GLINSEY, deceased, from the Decree of the Orphans’ Court of Philadelphia County.
    APPEAL.
    Where the wife permits her husband to receive the rents of an estate, conveyed in trust for her separate use, by the husband after marriage; where they live together, and the rents are generally laid out by the husband, together with his own money, in the purchase of goods for a store kept in the name of the wife, in their dwelling-house, and, on his dying intestate, the wife, as his administra-trix, accounts for the goods in the store as his, she is not entitled, on the settlement of her administration account, to retain, against the estate of her husband, the amount of the rents received by him.
    Of the proper allowance for funeral expenses.
    On the hearing of this case, it appeared that on the 8th of March, 1819, John M‘ Glinsey and wife conveyed to Joseph Simons a house at: the corner of Second and. South Streets, in the city of Philadelphia, in trust for the sole and separate use of the wife for life, and, after her death, for the use of the husband. On the same day, the trustee gave to the wife a power of attorney to receive the rents of the house, and never received any of them himself. M‘Glinsey and his wife lived together on very good terms. He received the rents, and generally laid them .out in goods for a store kept by his wife. On his death, the appellant accounted for the store goods as his. In settling the administration account, she charged the sum of one thousand seven hundred and sixty dollars and twenty-five cents, as retained by her in satisfaction of her claim against the intestate, for rents of her private estate received •by him during his life, with interest from the time of his death. She charged the sum of three hundred and fifty-eight dollars and seventy-five cents for funeral expenses, including a vault and tombstone. The Orphans’ Court rejected the whole of the first mentioned claim, and allowed but one hundred and thirty-nine dollars and thirty-seven cents, one half of the amount charged, for funeral expenses. From the decree of the Orphans’ Court, the adminis-tratrix entered an appeal to this court.
    
      Kitiera, for the appellant,
    observed, that chancery, considering the separate estate of the wife as belonging to her, with power to dispose of it by her voluntary act, this case presented a question of fact, viz. whether the wife had made to her husband a gift of the rents of her separate estate? From his receipts, it appears that he received the rents as her agent; and, having received as an agent, he must account as an agent. If the court have any difficulty as to the fact, they may direct an issue to be tried by a jury.
    2. The intestate having left a considerable estate, and no children, the sum charged for funeral expenses was not unreasonable.
    
      
      Chew, contra.
    1. It is an important feature of this case, that the separate property of the wife was the voluntary gift of the husband after marriage, and that as to the store, said to be the wife’s, the husband was active in purchasing goods at auction. The principles which govern the point in controversy are well established. Where the wife permits the husband to receive the rents of her separate estate, the most favourable presumption, is made for the husband. 7 Johns. Chi E. 117. 3 Johns. Ch. E. 77. 17 Johns. 548. The wife is not admitted in equity to recover against her husband’s estate, if she has permitted him during his life to receive the interest of her personal estate. Poidell v. HanJeey, 2 P. Wms. 82. Cluney on the Eights of Married Women, 168,169. If husband and wife are living together, and she permits him to receive the profits of her estate, she is not entitled, after his death, to an account against his representatives. D.albrai v. Dalbrai, 16 Vez. 125. Where the husband supplies his wife with necessaries, she shall not have an account for arrears of pin money. Fowler v. Fowler, 3 P. Wms. 353. The court will 'not follow the personal property of the wife, through its various changes in the hands of the husband, without a positive agreement. It is of little moment, that the store was called hers. He purchased the goods at auction, and gave his own notes for the price. The interest in the store was his, and so she accounted for it after his death.
    
      2. The sum charged for funeral expenses was too high. A liberal allowance was made by the Orphans’ Court, and if the appellant wished to go to greater expense, she ought to pay it herself.
   The opinion of the court was delivered by

Tighman, C. J.

The first exception to the decree is, that (he Orphans’ Court rejected the claim of the appellant to the sum of one thousand seven hundred and sixty dollars and twenty-five cents, money received by her husband in his lifetime, from the rents of a house, which was the separate property of the wife. This house, originally the property of the husband, was conveyed by him to Joseph Simons in fee, to be held in trust for the wife, as her separate estate. The husband and wife had no children, and lived together in great harmony to the time of his death. The trustee never received the rents of the house. They were paid by the tenant, with the wife’s knowledge and approbation, to the husband, who generally laid them out in goods for a store kept in his dwelling-house. This store was attended by the wife, and generally called Mrs. MtGlinsey,s store; but the husband did the out of doors business, and, particularly, was in the habit of purchasing goods at auction to a much larger amount than the rents of his wife’s separate estate. He died intestate, and the appellant, who administered, accounted for the store goods as the estate of her husband. It is a general principle, that where the wife permits her husband to receive the profits of her separate estate, and particularly where they live together, and the expenses of house-keeping are paid by him, the presumption is, that it was the intention of the wife to make a gift of the profits to the husband. And there is great reason for this presumption, because the husband being in the receipt of this money, may be induced to' live at a greater expense than he would otherwise have done, whereby the comforts of his wife, as well as his own, are increased. To call him to account, therefore, after the lapse of a number of years, might be ruinous, and would certainly be unjust. This principle is strongly laid down and well explained, in the case of Powell v. Hankey, 2 P. Wms. 82. That case is of good authority, and is cited and relied on in a late treatise on the rights of married women, by Cluney,p. 168, 169. In the case of The Trustees of the Methodist Episcopal Church v. Jaques, 3 Johns. Ch. R. 77, it was said by Chancellor Kent, that where the wife permits the husband to receive the rents of her separate estate, the most favourable presumption is made for the husband. And although the decree in that case was reversed in the Court of Errors, (17 Johns. 548,) yet it was upon grounds unconnected with the principle I have cited, to which no exception was taken. The presumption in fa-vour of the husband is, of course, like all other presumptions, liable to be rebutted by facts which take off its force. But there is nothing in the present case to weaken it. The wife never complained to her trustee, or requested him to receive the rents. They were invested in goods, which went into a store, the profits of , which increased the personal estate of the husband, to one half of which the wife was entitle'd in case of his intestacy; and very probably she might have expected that he would make a will and leave her much more than half. When the goods went into the store, they became so blended with the property of the husband, that it was impossible to distinguish them, nor has the appellant made any attempt to distinguish them, but accounted for the whole as the personal estate of the intestate. Under all these circumstances, I am of opinion that the claim of the appellant to the rents of her house, received by her husband, was not sustainable, and the Orphans5 Court did right in rejecting it.

The second exception is to the striking out of a credit claimed by the appellant of the sum of one hundred and seventy-nine dollars and thirty-seven cents, paid for the funeral expenses -of the deceased. The whole funeral expenses amounted to twice that sum, one half of which was struck out. As to this, I think the Orphans5 Court was wrong. The deceased had a good estate, and no children, and the widow, who was entitled to one half, wished to be liberal in honour of his memory. A handsome tombstone was erected over a vault, in which the body was interred, and this was the principal article of expense. I think it should be allowed; but there was one article which should be rejected — I allude to a picture of the deceased, painted after his death. If the widow desired a memorial of this kind, she should pay for it herself, and keep it for her own satisfaction. With that exception, I am for allowing the sum charged for funeral expenses.

On the whole, then, the decree of the Orphans’ Court is to be affirmed, except as to the rejection of part of the funeral expenses. That part is to be reversed, and the whole charge for funeral expenses allowed to the appellant, except the cost of the picture.  