Estate of Dennis

SHINN, P. J.

By her will Eva Ridenour Dennis disposed" of an estate of some $18,000, her separate property. She held an interlocutory decree of divorce from William A. Dennis, appellant herein, and bequeathed him $3,000. The will made no provision for the payment of funeral expenses. These expenses being unpaid, her executor and appellant were sued and judgment given against them jointly for $563.38 in favor of Pierce Brothers, the mortician, and $776.42 in favor of Inglewood Park Mausoleum Company. These sums were paid from estate funds but upon final distribution were ordered deducted from the husband’s legacy. The husband appeals.

We are of the opinion that the expenses should have been paid by the estate and were improperly deducted from appellant’s legacy.

The question whether the funeral expenses of a deceased wife should be borne by her husband or her estate has been directly presented to a reviewing court, as far as we know, in but two cases. Respondent contends that

In re Weringer,

100 Cal. 345 [34 P. 825], decided that the husband must bear the expense. As we read the opinion the court expressed the opposite view. It is true the court said (p. 346) : “ At common law the husband was bound to bury his deceased wife in a suitable manner, and was bound to defray the necessary funeral expenses, ’ ’ but the court did not impose that duty upon the husband. It was said (p. 347) : “The court allowed an item of six hundred and seventy dollars for ‘funeral expenses and monument. ’ It does not appear how much of the item was for the monument. Whether or not the administrator ought to have been allowed anything on account of the monument depends upon circumstances. ... If the husband be poor, and the deceased leave a considerable estate, the former ought not to be expected to contribute much to a monument, and it would be proper in such a case, we think, for the court to fix

[669]

a reasonable amount to be allowed for that purpose.

The amount allowed for the expenses of the funeral and a monument should be governed by the custom of people of like rank and condition in society; a distinction being made in this respect, however, between solvent and insolvent estates.”