APPEAL FROM THE ORDER ENTERED JUNE 11, 1984 IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY NO. C.P. 84-945
William D. Kemper, Butler, for appellant.
Frank P. Krizner, Butler, for appellees.
Cirillo, Hoffman and Rosenwald,*fn* JJ.
[ 342 Pa. Super. Page 423]
Appellant Helen Swidzinski is the sister of the decedent, Joseph Schultz, and the executrix of his estate. Joseph Schultz is survived by his wife, appellee Eugenia Schultz, his son, appellee Kenneth Schultz, and other children who are not parties to this action. Joseph Schultz's only assets were real estate owned jointly with his wife and a bank
[ 342 Pa. Super. Page 424]
account held jointly with Kenneth. In his will, he directed that his funeral expenses be paid out of the assets of his estate; however, his estate is insolvent.
Appellant, as executrix of the estate, sued appellees in assumpsit to recover the testator's funeral expenses. The appellees demurred to the complaint. The trial court sustained their demurrers, and stated that neither a widow nor a surviving child is liable for the funeral expenses of a husband or parent, where the estate is insolvent.
Appellant presents two questions, which we will answer together:
1) If a husband is presumed to be primarily liable for the funeral expenses of his deceased spouse, does the same presumption of liability apply to make the wife liable for the husband's funeral expenses?
2) Is the obligation of a spouse to pay funeral expenses of his/her deceased spouse relieved totally by language in the decedent's Will which states that funeral expenses are to be paid out of the estate of the decedent whenever the decedent's estate is insolvent?*fn1
The scope of review of an appellate court, when confronted with a challenge to a demurrer, is limited. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). We may sustain a demurrer only if it is clear, on the face of the complaint, that the plaintiff has no cause of action. Mahoney, supra; Greenspan v. United Services Automobile Association, 324 Pa. Super. 315, 471 A.2d 856 (1984); Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982); Zelik v. Daily ...