McRae, John J.

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Husband and Wife: Liability of Wife\u27s Estate for Expense of Last Illness; Funeral

Marquette University Law School

Marquette Law ReviewVolume 13Issue 3 April 1929 Article 11Husband and Wife: Liability of Wife's Estate forExpense of Last Illness; FuneralJohn J. McRaeFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJohn J. McRae, Husband and Wife: Liability of Wife's Estate for Expense of Last Illness; Funeral, 13 Marq. L. Rev. 187 (1929).Available at: http://scholarship.law.marquette.edu/mulr/vol13/iss3/11NOTES AND COMMENTremains of any property herein described, and submit to examinationsunder oath by any person named by this company, and subscribe thesame," and the purpose of this provision is that it "furnishes reliableevidence to the company with respect to the actual loss, and as to allthe facts and circumstances involved in and surrounding the loss," andit is held that the examination and investigation are contemplated bythe express provision of the statutory policy, and are a part of thelegislative agreement. This wording clearly sustains the standard pol-icy provision. The court says that if under the facts detailed, the de-fendant was estopped, then the standard form of policy "would servethe purpose of a snare to entrap the insurance company into a waiver,"and says, "such is not the case." Oshkosh Match Works v. ManchesterFire Ins. Co., 92 Wis. 510, is cited as sustaining the right of the Insur-ance Company to an examination under oath of the insured after loss,and without waiver of its rights in so doing.9Prior to the adoption of the Wisconsin standard fire policy, the con-ducting of an examination under oath was held as a waiver. OshkoshGas Light Co. v. Germania Ins. Co., 71 Wis. 54. In the enactment ofthe standard fire policy the rule changed.9EDWARD S. FOLTZ, JR.Husband and Wife; Liability of Wife's Estate for Expense ofLast Sickness; FuneralLichtenberger v. Central Wisconsin Trust Co., 222 N.W. 218.While the deceased, Nellie Cox' Phalen, was suffering from her lastsickness, her sister, one Jane Lichtenberger, was requested by the hus-band of the deceased to perform the services of a nurse, under thepromise that Mr. and Mrs. Phalen would pay her well therefor. Theservices were performed and subsequent to the death of the deceased,claiment filed her bill, which was allowed by the lower court. Fromthis decision an appeal is taken. Counsel for the trust company con-tends that this debt is not properly chargeable to the estate of thedeceased because it was not her debt but the debt of the husband.On the other hand, claimant's counsel contends that the debt becameproperly chargeable to the wife's estate, citing Schneider v. Estate ofBreier, 129 Wis. 441 as their authority for such contention.Section 313.16 Wis. Stat. reads: "If, after the amount of the claimsagainst any estate shall have been ascertained by the court,...." Inter-preting this statute, the court says that the claims against any estateare those allowed by the court. This interpretation does not give to*Aetna Ins. Co. v. Itule (Ariz.), 218 Pac. 99o; Connecticut Fire Ins. Co. v.George, 153 Pac. 116; Shapiro v. Security Ins. Co., 152 N.E. 37o, are also citedin support of the same rule.MARQUETTE LAW REVIEWthe courts the right to allow any claims, but the class which may beallowed are -lefinitely limited by former decisions. Under the breadthof this interpretation of the statute, the court may, within its discretion,allow certain claims not contracted by the deceased but arising be-cause of the death of the deceased. The question is, was the lowercourt justified in allowing this claim for expenses connected with thelast sickness of the-deceased to be charged to the wife's estate?In Schneider v. Estate of Breier, 129 Wis. 441, the court allowedthe claim for burial expenses to be charged to the wife's estate. Itis pointed out that Wisconsin follows a decided minority in allowingsuch a claim to go through. In a debt for funeral expenses, the obli-gation arises after the death of the deceased and in most instancesit is raised by implication, based on the necessity of disposing of thebody. The burial must be sanitary and within a reasonable time,in order to preserve health and prevent disease. The time withinwhich the dead body must be interred being limited, it is necessary toimpose upon the assets of the deceased, when such assets exist, theexpense of burial.What of the expenses incurred during the last sickness? Thecourt points out that there is a distinction between these and the debtarising out of funeral expenses. In the first place the debt is con-tracted during the life time of the party and again the doctrine ofpublic necessity cannot be invoked. For the disposition of the casein hand, however, it was not necessary to decide whether or notthey are properly allowable. Here a husband contracted for theservices and it is his debt the same as though the services were ren-dered on him personally. Such a debt cannot be charged to the wife'sestate. Summing up what is found in the case, we learn: (i) thatclaims that may be filed against an estate are those that are allowedby the court; (2) that these claims may be divided into two generalclasses: (a) obligations contracted by -the deceased during her life-time, (b) obligations that accrue by virtue of what happens afterdeath; (3) that under the latter class, Wisconsin follows the minorityin allowing claims for funeral expenses against the estate of the wife;(4) that a claim for expenses incurred during the last sickness ofthe wife, is not allowable unless it has been personally contracted.JOHN J. McRAE

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Husband and Wife: Liability of Wife\u27s Estate for Expense of Last Illness; Funeral

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