
    Charles L. Kessell, App’lt, v. John C. Hapen et al., Resp’ts.
    
      (City Court of New York, General Term,
    
    
      Filed April, 1887.
    
    Executors and administrators—Liability for funeral expenses— Husband and wife.
    Executors having assets in their hands are personally liable to pay the funeral expenses of the testatrix The husband is likewise liable, if credit for the funeral be given to him; but if the wife leave assets, he has a remedy over against her executors for the amount he is obliged to pay.
    
      On the 13th of January, 1886, the plaintiff’s wife died. Plaintiff employed an undertaker to conduct the funeral in a manner suitable to her condition in life. The bill amounted to $138. Plaintiff paid thirty on account. The undertaker sued him for the balance, $108, and recovered a judgment which he paid. Plaintiff’s wife left a will in which the defendants were named as executors. They qualified and took into their possession assets belonging to the deceased more than sufficient to pay all her debts including said funeral expenses. The present action, founded on these facts, is to recover from the defendants the amount paid by the plaintiff as before warranted. The trial judge dismissed the complaint, and from the judgment entered on this direction the plaintiff appeals.
    
      E. Fixman, for app’lt; Blake & Sullivan, for resp’ts.
   McAdam, Ch. J.

Executors having assets in their hands are personally liable to pay the funeral expenses of the testatrix. Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y., 585; Williams on Ex’rs, 1621; Dayton on Surrogates, 453; Matter of Miller, 4 Redf., 303; Ferrin v. Myrick, 41 N. Y., 315. The husband is likewise liable to the undertaker, if credit for the funeral be given to him (Lucas v. Hessen, 17 Abb. N. C., 271); but if the wife leave assets sufficient to pay the expenses, the husband has a remedy over against her executors for the amount he is obliged to pay. McCue v. Garvey, 14 Hun, 562; Jackson v. Westerfield, 61 How. Pr., 399; Freeman v. Coil, 27 Hun, 450. The foundation of the remedy over, springs from the duty which the law imposes on the executors to attend to the burial of the the testatrix. If they neglect this duty, the law implies a promise to pay him, who not officiously, but in the necessity of the case directs a burial and incurs and pays such expense thereof as is reasonable. Tugwell v. Heyman, 3 Camp., 298; cited with approval in Patterson v. Patterson, 59 N. Y., 583. This being the law, the plaintiff ought to have had a judgment, and it was error to dismiss his complaint. For this error the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Nehrbas, J., concurs.  