
    MATTER OF HILL.
    
      Westchester Surrogate's Court;
    March, 1886.
    Executors and administrators ; liability bob toneral expenses.—Counter-claims.
    "Where, upon the death of a married daughter, her mother officiously and in the presence of the husband of the deceased, assumed entire control of the arrangements for the burial, and sent for the undertaker, and told him to spare no expense, Held, that she became personally liable for the funeral expenses, and relieved both the husband and the estate of the deceased from the obligation otherwise imposed upon them by law.
    The mother was an executrix under the will of her husband, and, when sued by the undertaker, paid the claim and took an assignment thereof to herself and co-executor. Held, that they had no power to use tiie funds for the estate for the purchase of such claim, and could not thereby acquire the right to use it as a set-off against their liability to the estate of the deceased daughter, as it had been fixed by a decree made upon their accounting. ,
    In order to warrant the allowance of a counter-claim, the debts must be mutual, and due to and from the same persons in the same capacity.
    Motion by the administrator of the estate of Arabella Quin, deceased, to compel payment of the amount decreed to be due him from the estate of John S) S. Hill, deceased, upon the accounting of the executors.
    Frances C. Hill and Edward Petit are the executors, etc., of John S. Hill, deceased. The testator left a daughter, Arabella, the wife of Henry W. Quin, Jr., who was a beneficiary under the will, and who died in January, 1885. The executors rendered an account of their proceedings, which resulted in a decree, entered June 5, 1885, which, among other things, adjudged to be due to Arabella Quin the sum of $613.64, and directed the executors to pay the same to her legal representative.
    Said Henry W. Quin, Jr., was appointed administrator of his wife’s estate on June 29, 1885. Frances C. Hill, the mother of Arabella, in the presence of her husband, gave the directions for her burial to the undertaker, telling him to spare no expense, as it was the last thing she could do for her daughter. Mr. and Mrs. Quin lived with Mrs. Hill, and the death took place at her house, where the funeral arrangements were made.
    Solomon M. Ireland, the undertaker, presented his bill, amounting to $435.48, to Mrs. Hill, who declined to pay it. He then brought an action against her for its recovery. On the 15th day of July following, she paid it, and took an assignment of it to herself and Mr. Petit, as the executrix and executor of John S. Hill, deceased. Subsequently the administrator took measures to compel the payment to him of the amount decreed to be due to his intestate. On the return of the citation, the executors sought to set off against it, the amount of the undertaker’s bill.
    
      Edward F. Brown, for the administrator.
    
      Rodman & Adams, for the executors.
   Coffin, Surrogate.

—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, lie may recover it from the person or estate that was bound to do it (Appendix to 4 Redf. 527).

An examination of the authorities collated by Mr. Redfield in the third edition of his Law and Practice in Surrogates' Courts, 465, and of those cited in Rappelyea v. Russell (1 Daly 214), and in Patterson v. Patterson (59 A7. 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, 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 his 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 the undertakers claim, sought, by her assignment of it, to transmute it from one against herself, into one of the executor’s 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 counter claim 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 life-time, 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; 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 deatlji of the testator, and which the executors own personally, cannot be the subject of set-off or counter-claim against their liability on account of the estate they represent. In order to warrant the allowance of such counter-claim, the debts must be mutual, and due to and from the same persons in the same capacity (Dudley v. Griswold, 2 Bradf. 324, 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 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 doctrine may, in many cases, be most disastrous.”

There are other reasons, unnecessary to be considered here, why the counter-claim 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.  