
    In the Matter of the Judicial Settlement of the Account of Clara Stadtmuller and Frank K. Lamereaux, as Executors, etc., of Catherine T. Lea, Deceased. In the Matter of the Hearing and Determination by the Surrogate of Orange County of the Claims Filed by the Estate of George Lea, Deceased, against the Estate of Catherine T. Lea, Deceased, upon the Judicial Settlement of the Accounts of the Executors, etc., of Catherine T. Lea, Deceased. Flora A. Stegman, as Administratrix with the Will Annexed, etc., of George Lea, Deceased, Appellant; Clara Stadtmuller and Frank K. Lamereaux, as Executors, etc., of Catherine T. Lea, Deceased, Respondents.
    Second Department,
    December 29, 1905.
    Decedent’s estate — when wife’s estate liable for funeral expenses paid by husband ---wife’s estate not. liable for services-of physician paid for by husband. ' - ,
    When the will of a deceased wife' provides that all her just debts and -funeral expenses be paid, and her husband, who survived her but a short time, has paid such funeral expenses, the husband’s executor is entitled to-recover the same from the estate of the .wife in the absence of proof showing an intent by the husband to make a gift of such moneys to his .wife’s estate or an actual ■ release of his claim.
    But sums paid by a husband to the physician who attended his wife in her last illness are not chargeable to her estate, for, so long as they-both lived', lie was liable for her necessaries. ' . .
    Appeal by Flora A. Stegman, as-administratrix'With the will •annexed, etc., of George Lea, deceased, from a decree of the Sur- ' rogate’s Court of the county of. Orange, entered’in said Surrogate’s .Court on the 18th day of October,. 1904.
    
      Sydney A. Syme, for the appellant.
    
      Frank Lybolt, for the respondents.
   Hooker, J.:

This is an appeal from a decree made by the surrogate of Orange county on,the judicial settlement-of the account of the, executors.of ' the last will and' testament of Catherine T. Lea, deceased, rejecting certain claims against her estate lodged by the administratrix with the will ann.exed, etc., of George Lea, deceased. There is little dispute as to the facts. George Lea and Catherine T. Lea were husband and wife, and resided together. On the 29th day of July, 1902, the wife died, and the husband, who was then ill, followed her three weeks later. Both left estates. The will of the wife directed tlia.t all her just debts and funeral expenses be paid. A short time after the. death of his wife Mr. Lea sent for several parties who had claims and requested them to present their bills. They were paid on the 15th of August, 1902. George Lea paid the physician who attended his wife during her last illness the sum of $248.50; "one Maxiner for flowers furnished at her funeral, $80.50, and one Collier, an .undertaker who had charge of her funeral, $281. The administratrix with the will annexed, etc., of George Lea, claims to recover these sums from the estate of his wife. The surrogate, however, rejected these claims, and the administratrix of the husband’s estate appeals from the decree.

That the items paid Collier and Maxiner are legitimate funeral expenses cannot be doubted. In McCue v. Garvey (14 Hun, 562) there were allowed, in addition to the undertaker’s bill, disbursements for a wake and a priest. A reasonable charge for tombstone is part of funeral expense (Code Civ. Proc. § 2749 ; Matter of Shipman, 82 Hun, 108, 115), as are carriages for the funeral, flowers, music and other incidental expenses. - (Matter of Ogden, 41 Misc. Rep. 158.)

It is equally clear that where the wife leaves a separate estate, although a surviving husband is under a legal obligation to bury the body of his wife, her estate is liable to the charge. It has been held that where expenditures of this sort have actually been made by the husband, his wife’s separate estate, if she had one, should reimburse him. (Patterson v. Patterson, 59 N. Y. 574 ; McCue v. Garvey, supra ; Freeman v. Coit, 27 Hun, 447 ; Watkins v. Brown, 89 App. Div. 193.) The point made by the respondents, that because Geo.rge Lea assumed these claims without the expectation of being reimbursed from the estate of his deceased wife, can have no force. Unless he did some positive act- indicative of an intent to make a gift of such moneys to the éstate, or actually released the wife’s .estate, no legal impediment existed to prevent his claiming reim bursóment in cáse, for one reason, or another, he changed his mind, about filing a claim. He died before his claim against his wife’s . estate was barred, and his administratrix is- simply seeking to enforce, a right which accrued to him" and which he never alienated.

The decree in so far as it rejected the claim of the administratrix . With the will annexed, etc., of George Lea, deceased, for the amount óf the physician’s- bill" paid by Lea before his death,, is, however, right. So long as the wife lived with her husband, lie, and' he alone, was liable to the physician as for necessaries supplied to the wife, in- the absence of agreement between the wife and' the physician that credit should be extended to her. Mo such agreement, was shown to exist. . Under such circumstances neither the wife nor her estate would have been liable, in the absence of special direction in her will that such payment be made.

This distinction between the physician’s charge and the funeral expenses was the subject of consideration in Freeman v. Coit (supra)j where the same conclusion was reached.

The decree should be modified by allowing the claim for the amounts paid the florist Maxiner and the undertaker Collier, and as so modified it should be affirmed, without costs to either party.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Orange county-modified by inserting a provision allowing the claim for the amounts paid to Maxiner and to Collier, respectively, "and ás modified affirmed, without costs. * .  