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SAMUELS v. HIRZ. (06/10/59)

June 10, 1959

SAMUELS, APPELLANT,
v.
HIRZ.



Appeal, No. 207, April T., 1958, from order of County Court of Allegheny County, No. 1008 of 1957, in case of Lillian Samuels v. Ben Hirz. Order reversed.

COUNSEL

Daniel M. Berger, with him Berger & Berger, for appellant.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 189 Pa. Super. Page 493]

OPINION BY WRIGHT, J.

The question presented by this appeal is the liability of the husband of a deceased wife to the wife's natural daughter for bills paid by the daughter in connection with the wife's last illness and death, where the husband and wife were separated and the husband was under an order of support. The court below sustained the husband's preliminary objections and dismissed the daughter's complaint. This appeal by the daughter followed.

Appellant's complaint in assumpsit avers that her mother died intestate on February 20, 1957, that the mother's estate was insolvent, and that the daughter "was compelled" to pay funeral expenses in the amount of $536.00, and a hospital bill in the amount of $1130.82. While the complaint further avers that appellant was appointed administratrix, suit was not instituted by appellant in her fiduciary capacity, but as an individual. Appellant also sought to recover for bills submitted by two physicians covering medical services rendered decedent in total amount of $392.00. However, the complaint avers that appellant "is not legally obligated to pay these bills", and that she in fact did not pay them. There can be no question as to the propriety of the lower court's action in dismissing appellant's complaint in this regard.

Counsel for appellant asserts that the precise issue on this appeal is one of first impression in Pennsylvania. At common law, and as a general rule, the husband is liable for his wife's funeral expenses, and his liability is not altered by the fact that, at the time of

[ 189 Pa. Super. Page 494]

    death, the husband and wife were living apart. See 41 C.J.S., Husband and Wife, Section 61. It is well established in this Commonwealth that a husband assumes the duty of reasonably supporting his wife when he marries, and his duty is a continuing one of which, in the absence of grounds for divorce, he cannot relieve himself by separation: Commonwealth v. Dugan, 162 Pa. Superior Ct. 10, 56 A.2d 683; Commonwealth v. Kieler, 160 Pa. Superior Ct. 435, 51 A.2d 514. The obligation is imposed by law as an incident of the marital status: Commonwealth v. Berfield, 160 Pa. Superior Ct. 438, 51 A.2d 523; Commonwealth ex rel. Shaffer v. Shaffer, 175 Pa. Superior Ct. 100, 103 A.2d 430. We have uniformly held that a surviving husband is liable for the funeral expenses of his deceased wife where the parties are living together at the time of her death. See Mitchell's Estate, 79 Pa. Superior Ct. 208; Koska's Estate, 176 Pa. Superior Ct. 519, 108 A.2d 829. Our view is that this liability, like the obligation to support, is not altered by the separation of the parties. Certainly the existence of a support order should not relieve the husband of his liability. In Barnes v. Starr, 144 Md. 218, the husband was held liable for the funeral expenses of his deceased wife, even though they were separated and he was under an order of support. In that case it was said: "The duty of a husband to bury his wife in a suitable manner is involved in the obligation to maintain her while living, and rests also upon a due regard for the decencies of life, and the health of the public".

We are also of the opinion that a husband, although separated and under a support order, is liable for the expenses of his wife's last illness. Section 622 of the ...


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