Nisbett & Martin, for plaintiff in error.
Little & Shearer, for defendant in error.

SPEAR, J. The facts shown by the record, so far as they are necessary to an understanding of the points decided, are as follows: Nancy McClellan, a married woman, died about January, 1879, testate, leaving an estate of her own, and a husband surviving her, who also had property. The will named as executor Wm. S. McClellan, a son of the testatrix, who upon the probate of the will took out letters testamentary, and at once entered upon the discharge of the trust. As such executor he paid from the assets of the estate, as expenses of the last sickness, physicians' bills; also expenses of her funeral, and for a tombstone. The physicians who attended were called by the son (Wm. S.) at the request of the mother. The coffin and other purchases for the funeral were made by the son. It does not appear that the husband took any action in the way of employing either the physicians or undertaker. The executor also claimed to have paid certain taxes on the lands of deceased during her life-a portion of them more than six years before the death of the testatrix. To the account of the executor filed in the Probate Court asking credit for all these payments, Mary J. Filson, a daughter of Mrs. McClellan, and legatee under the will, filed exceptions, in which among other grounds of exceptions, she urged as to divers items of taxes, that they were barred by the statute of limitations. The Probate Court sustained all the exceptions. On appeal to the Common Pleas by the executor, that court upon trial sustained the exceptions as to the charges for expenses of last sickness and of the funeral, and overruled them as to the tombstone and the charges for taxes. The District Court reversed the judgment of the Common Pleas as to the items of taxes, to which the statute of limitations had been pleaded, and affirmed the judgment of the Common Pleas in all other respects. To reverse this judgment of reversal the present proceeding in error is brought.

We think the executor was justified in paying the funeral expenses and those of last sickness, and that he should have been allowed for such items in his settlement. The contention is that he was not so justified, because the expenses were a debt against the husband, and the executor should have compelled the undertaker and physician to look to him. As to expenses of the funeral, section 6090 of the Revised Statutes provides that every executor shall proceed with diligence to pay the debts of the deceased, and shall apply the assets in payment of debts-first, the funeral expenses, those of last sickness, and the expenses of administration; second, the allowance made to the widow and children for their support for twelve months. Another section permits the executor to sell property of the estate, before letters testamentary are granted, to pay funeral expenses, but for no other purpose. If within the meaning of the statute the funeral expenses are to be considered as debts of the deceased woman, there would seem to be reason for regarding the statute as imperative. They manifestly cannot be treated as contract debts; but that as regards the estate of a man, such expenses may be regarded as debts nevertheless appears to be settled in this State. The statute speaks of them as debts. They are classed under the same head as the allowance to the widow for year's support.

In the case of Allen v. Allen, 18 Ohio St. 234, where the question was directly made, the court sustained the action of the court below, where the allowance was treated as a debt, and held that "the allowance of a sum of money to the widow and child, under section 45 of the Administration Act, is classed among the debts of the deceased, to be paid in the order speci

fied in that section." If allowance for year's support of widow is a debt, it follows that funeral expenses are equally so. But as before stated, the debt does not rest upon contract. The inability of a married woman to bind herself by contract generally there fore furnishes no reason why her estate should not be bound. If the statute applies to the estate of a married woman, it is bound; if it does not, it is not bound. In terms it does apply. The language is, "Every executor and administrator shall pay," etc. Unless there is good reason, founded upon principle, why the married woman's estate should be excepted, then no exception should be made. It is urged that such good reason is found in the fact that at common law there is a duty upon the husband to dispose of the body of his deceased wife by decent sepulture in a suitable place. This is conceded, and it is not contended here to weaken the force of that duty, or to im pair the liability of the husband for the expenses of such burial. But the husband may be without the means, and unable to procure the services of those whose business it is to bury the dead, though the wife left an abundance. What shall be done in such case! Shall the body remain unburied? If in such circumstances it is proposed to resort to the wife's estate for such expenses, it must be upon some principle, some rule. What shall it be? We have seen that the law of contract does not aid. She cannot, any more than could a deceased husband as to his funeral expenses, be presumed to have contracted. Plainly then it must be by the force of legislation. That we have, and if we apply it in any case to the estate of a deceased married woman, it is difficult to see why, upon principle, it should not be applied to all. If we undertake to make arbitrary exceptions and distinctions then the rule fails; for if it cannot rest upon the doctrine of a statutory debt and charge upon the estate, it is not easy to find a satisfactory foundation for it. Besides. if the application of the statute be limited to cases where the husband is insolvent, then we impose upon the one who spends time and money upon the conduct of the funeral the burden of first exhausting the liability of the husband by suit, or at least demonstrating his insolvency. A decent regard for the proprie ties of the situation would seem not to require this.

We think the statute was based upon a well-recog nized necessity, and that such debts may be regarded as created by statute from necessity, and as a charge upon the estate, the same as the necessary expenses of administration, and the statute as furnishing the rule of liability. Patterson v. Patterson, 59 N. Y. 574. The burial of the dead is a matter of necessity. The public health requires that it be done, and a popular public sentiment equally requires that it be done decently. Rex v. Stewart, 12 Adol. & E. 773. "The estate in the hands of the executor is bound by law for the pay ment of the expenses of the decent interment of the dead." Hapgood v. Houghton, 10 Pick. 154. The statute of Massachusetts is similar to that of Ohio, and the court is here speaking of the effect of the statute. It is clear that the expense should be required to be met by any estate which the deceased may leave.

Is there any reason for saying that this most reason able requirement should not apply where the deceased is a married woman? As before stated, we regard the liability as resting on the statute, and upon that wholly. This must have for its basis, in large meas ure at least, considerations of public policy arising in the necessity of the case. That the dead might have proper sepulture, a clear, easily understood provision as to recompense for the expense is required. That provision we find in the statute. The question then is, do not considerations of public policy apply as well to the case of a married woman as to a man? The

necessity in the individual instance may or may not be as great, but where is the difference in principle? Divers authorities are cited by counsel for defendant in error, but we find none presenting the precise question presented here as to the funeral expenses. Sears v. Giddey, 41 Mich. 590; S. C., 32 Am. Rep. 168, is specially relied upon. In that case the surviving husband, with the son of a deceased wife by a former marriage, went together to the undertaker's, and there ordered the casket and other goods for the funeral. Nothing was said about payment or who was to be charged. The charge however was made to the husband, and the credit apparently given to him. The action was by the undertaker against the husband on the account. He sought to defend, on the ground that the wife had property which she had willed to the son, and therefore he should pay. The court held, and we have no doubt rightly, that. the husband must pay. In deciding the case, Cooley, J., uses this significant language: "A funeral cannot be delayed for judicial inquiries to determine upon whom the moral obligation to proceed with it rests most heavily." In other words, the undertaker may conduct the funeral decently and in order, and look to such person as ought to pay for his recompense. In that case it was the husband.

husband and wife were one, and that one was the husband. Not so now. The common-law right in aud power over the wife's proporty by the husband is almost entirely taken away by our legislation. All estates and property, including rights in action belonging to her at marriage, or which come afterward by conveyance, gift, devise or purchase, with her separate money or means, or due as wages of her personal labor, or growing out of the violation of her personal rights, together with rents, incomes, issues and profits, are her separate property. As to the real estate, she may rent it for three years, and by will dispose of it entirely at her decease, and the personal estate she may control and dispose of absolutely without the husband's consent. And as to all this separate property she may sue and be sued as if she were unmarried He has no control whatever over the personal property, except it be reduced to its possession with the express assent of the wife, and mere care, occupancy and use is not to be deemed a reduction to possession unless by the terms of the express assent full authority is given to him to dispose of it for his own use. Curtesy initiate, as it existed at common law, is now held not to exist in Ohio, and the right of curtesy is conferred only on surviving husbands in estates of which the wives die seised. It appears plain by this that the relations of husband and wife as to property have greatly changed in this State by statute, and that much of the reason for the rule that the husband's liability should be held to be so exclusive as to make impossible the subjecting of the wife's separate estate to payment of expenses resulting from her necessities has vanished with the change. If the reason for the rule is in large measure gone because of these statutes, we may with some willingness be ready to see the rule, by virtue of other statutes, in equal measure disappear.

In Gunn v. Samuel's Adm'r, 33 Ala. 201, an insolvent husband called in the plaintiff, a doctor, to attend his sick wife, her children, and slaves. The wife was not consulted, and gave no order. During her last illness she requested that a slave be sold to pay the doctor's account. The court held, that it being the legal as well as the moral duty of the husband to furnish medical attendance for his sick wife, a legal liability rests on him to pay, and her request did not impose an original liability or make her estate responsible, though if she had made a contract originally, express or implied, to pay the doctor, he would be entitled to As to the physicians' bills for attendance during last recover. Smyley v. Reese, 53 Ala. 89; S. C., 25 Am. sickness, the record shows that they were incurred by Rep. 598, is perhaps a stronger authority for defendant direct procurement of the deceased. That they were in error. In that case the husband, as administrator for her benefit admits of no doubt. She had the of his deceased wife, paid the expenses of her funeral power to make the same a charge upon her separate from the assets of the estate, and asked to have the estate; and while there are many reasons for saying amount allowed in settling his accounts, which was that such expenses are made by the statute debts refused, the court holding that the statutes of that against and charges upon the estate of the deceased, State "creating the wife's statutory estate do not ab- in like manner as funeral expenses are, there is the solve the husband from his common-law obligation to additional consideration that the charge is also made furnish suitable sepulture for his wife," and that the by the deceased herself. We expressly disclaim any administrator, in paying the funeral expenses, was but purpose of deciding what is not before us. We hold paying his own debt. The question of payment by an that under the circumstances the executor had the executor, not the husband, who had ordered the ex- right to follow the statute; to pay the physicians' bills penses, is not in that case. A holding contrary to the and the funeral expenses from the estate of the testadoctrine of the last case was made in Gregory v. Lock-trix, and having paid them, has now the right to be yer, 6 Madd. 90, where the husband having paid the funeral expenses of the wife, and made a claim before the master to have them repaid by the executor from the separate estate of the wife, the separate estate was by decree ordered to be applied in payment.

The question is not simply whether the husband is liable as between him and the undertaker, but may not the estate of the wife also be liable, and may not the executor, having ordered the expense, be justified in paying the claim from that estate? If not, then a woman may die leaving thousands in lands, money, and bonds, and if she happen to leave a husband, and he insolvent, the body may lie uncared for until some charitable friend comes to the rescue or it be taken care of and buried by the town. Public decency aud a just regard for enlightened sentiment forbids.

True, the wife's property may not be taken for the husband's debt, but if the debt may be treated, as we think in this case it may be, as well that of the wife as of the husband, it would not seem inequitable to allow her estate to bear the burden, though that does not serve to exonerate him. At common law the

allowed for such payments.

No question is made here as to the tombstone. The Court of Common Pleas approved of that item, and ordered it paid. The District Court affirmed the judg ment as to that, and there the matter was allowed rest.

Regarding the item of taxes, we find sufficient ground in the record to warrant a reversal of the finding and judgment of the Court of Common Pleas by the District Court, irrespective of the question of the statute of limitations, and we express no opinion upon the question raised by the exceptions based upon the statute. The District Court affirmed the judgment below as to all items of taxes except the first twelve, and no one asks a reversal of that action.

It follows that the judgment of the Court of Common Pleas sustaining the exceptions to the charges for funeral expenses of last sickness, represented by vouchers 1, 3, 4, 5 and 6, and of the District Court, affirming such judgment, will be reversed; and the judgment of the District Court as to the items of taxes represented by voucher No. 2, in part reversing

the judgment of the Common Pleas, is affirmed. The Probate Court will be directed to allow to said executor, in his settlement, the items represented by vouchers 1, 3, 4, 5, 6, 7, and all items of taxes except the first twelve.

The costs of this proceeding in error are adjudged against both parties in equal proportions.

[See 19 Alb. L. J. 367.-ED.]

AGREEMENT TO MAKE
CHILD AN HEIR IN CONSIDERATION
OF SERVICES.

An oral agreement was made by a childless husband and wife, with a young girl, to treat her as their own child, and to make her their heir, and will her at their death, or at the death of the survivor, their entire estate, consisting of both real and personal property, in consideration of her living with them, and performing certain services for them. The girl performed the conditions of the contract on her part. Held, within the statute of frauds, and not enforceable, but that the girl was entitled to recover the reasonable value of her services. PPEAL from Marion Superior Court. The opinion states the case.

state of facts similar to Mauck v. Melton, supra. No possession having been delivered under the contract, the court said: "It is a contract for the sale of real estate, and to be made a sufficient foundation of the action, must have been in writing, and signed by William Pickett, deceased." The cases of Neal v. Neal, 69 Ind. 419, and Johns v. Johns, 67 id. 440, involved the principle here under consideration, and the holding in both was that the statute of frauds prevented the enforcement of the contract. Thus much has been said to show that the only impediment in the way of a specific enforcement of the contract involved in this case is the statute of frauds.

that Carter took possession, cleared about 100 acres of the land, built fences, dwelling-house, and stable, and otherwise fully performed his contract; that Cline died, leaving real and personal property of the value of $8,600, without making the will, or otherwise compensating Carter, who had performed services worth $10,000. The facts stated in the complaint show such a part performance of the contract as clearly to take it out of the statute of frauds, and the complaint contained the statement of such facts as would have warranted the specific enforcement of the contract, as in Mauck v. Melton, supra, and the cases of that class cited above in connection with it, or possibly, owing to the part performance averred, of making the contract the basis of au action for damages for its violation. The complaint however was held good, and the contract was said to be clear of the statute of frauds, upon the authority of Bell v. Hewitt, supra. This, as it seems to us, was to some extent, at least, a misapplication of Bell v. Hewitt. The contract to devise land and to bequeath personal property exceeding $50 in value was clearly within the statute, and so far as it was withdrawn from its operation, if at all, it was by the acts of part performance which are set forth in the complaint. It does not appear what rule of damages was applied in the case.

When the title to property, either real or personal, is to be acquired by purchase, the statute of frauds will operate upon and affect the contract in precisely the same manner whether the consideration for the purchase is to be paid in services, money or any thing else. In either case such a contract being in parol, and entirely executory, cannot be enforced by either party, and it may be doubted whether a contract which is within the statute, so as to be incapable of specific enforcement, has sufficient validity to support an action for damages by either party, unless the contract was induced under or its violation is involved in some special circumstances of fraud or bad faith. Barickman v. Kuykendall, 6 Blackf. 22; Ballard v. Bond, 32 Vt. 355; McCracken v. McCracken, 88 N. C. 273; Bender v. Bender, 37 Penn. St. 419. The most that can be recovered in such a case is the value of what may have been paid or performed by one party in reliance upon such a contract, when the other refuses to perform. 2 Reed Stat. Frauds, §§ 737. 761, 762; Day v. Wilson, 83 Ind. 463. Where therefore services have been performed or money paid in consid-queath to her a share equal in value to that given any eration of property to be conveyed, if the contract is not enforceable by reason of the statute of frauds, the action is not on the special contract, but in the case of services performed, the action is on a quantum meruit, to recover the value of the services. Ham v. Goodrich, 37 N. H. 186; Emery v. Smith, 46 id. 151; Leslie v. Smith, 32 Mich. 64; Seymour v. Bennet, 14 Mass. 268; 2 Reed Stat. Frauds, §§ 622, 623, and cases cited in notes; 2 Suth. Dam. 453. In such a case the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of dam

ages.

Returning to the cases relied on, Bell v. Hewitt, supra, was an action on a special contract for services, to be compensated by a promised legacy of $500. The contract involved the payment of a specified sum of money in a manner agreed upon. It was held that as the contract was upon a definite consideration, and liable to be performed within one year, it did not come within the fifth subdivision of the statute of frauds, which inhibits the bringing of actions upon oral contracts, not to be performed within one year from the making thereof. There was in that case clearly no impediment in the way of the maintenance of an action on the contract to recover the stipulated wages. This case was followed in Caviness v. Rushton, 101 Ind. 502, which involved the same principles.

The next case, Lee v. Carter, 52 Ind. 342, was decided, so far as it touches the question under consideration here, on a demurrer to the complaint, which was in the nature of a claim filed against the estate of one Carter. The substance of the complaint, as set out in the opinion, is that Cline agreed with Carter that if the latter would take possession of the farm of the former, and clear and improve such portions as he might be able, and permit Cline to reside with him, do his mending, washing, and furnish his boarding, Cline would compensate him by devising all of his property, real and personal, to Carter or his children;

The case of Frost v. Tarr, 53 Ind. 390, arose out of the following facts: The father of Jane Torr agreed with Simeon Frost that Frost should take Jane into his family, board, educate, and clothe her as his own child until she was twenty-one years old, or was married, and that if she continued so to live with him and his family, and do the ordinary housework usually performed by girls in house-keeping, he would be

son.

of his children. It was alleged that she had fully performed; that Frost died without leaving her any thing by his will, except $50; and that he left an estate in real and personal property of the value of $20,000, the greater portion of which he bequeathed to his She demanded judgment for oue-sixth part of the estate, and for $4,000 damages. It was there said by the court "that the contract alleged is one the specific performance of which would not be decreed; but it does not follow, because a court will not decree specific performance of a contract, that therefore no action for damages will lie upon it when it has been violated. On the contrary we think such action will lie, and that the damages in this case may be measured by the value of the portion which was promised, and that the plaintiff, in such case, is not limited to the value of the services performed in the recovery." Bell v. Hewitt, supra, and Lee v. Carter, supra, were cited in support of the rule announced. It was said further that there was nothing in "the question made as to the section of the statute of frauds which requires contracts not to be performed within a year from the making thereof to be in writing." As respects other provisions of the statute of frauds, no question seems to have been made, and none was considered.

The rule thus enunciated in respect of the right to sue for the violation of the contract, and what shall be the measure of recovery in such cases, seems to us, in view of the facts on which the cases cited in its support rest, and what has already been said in reference to them, to receive but incidental support from those cases. That under the pressure which in this class of cases was brought to bear on the courts, this rule in one form and another prevailed in the earlier decisions in some of the States, is well known, but as is said by a learned author: "It gradually dawned upon the judges that there was no real difference between the land itself and its market value; and that

allowing the plaintiff to recover the latter was, in effect, giving him specific performance of the contract." The position has long since been abandoned in all the States, with but one or two exceptions. 2 Reed Stat. Frauds, § 738. Of the earlier cases which sauctioned the rule of Frost v. Tarr, supra, to a degree, were Jack v. McKee, 9 Penn. St. 235; Bash v. Bash, id. 260; McDowell v. Oyer, 21 id. 417; Malann v. Ammon, 1 Grant Cas. 123. To these may be added, as lending some sanction to the doctrine, the cases of Burlingame v. Burlingame, 7 Cow. 92; King v. Brown, 2 Hill, 485; and Hopkins v. Lee, 6 Wheat. 109.

In overruling Jack v. McKee and the other cases following it, the Pennsylvania court said in Hertzog v. Hertzog, 34 Penn. St. 418: "Whenever a departure from settled principles is shown by experience to have worked perniciously, to have occasioned wrong and hardship which were not anticipated, and to have placed the inheritance of families at the mercy of parol evidence, we think it the imperative duty of the court that made the departure to undo the mischief as far as possible, and to retrace their steps back to the old paths."

It was further declared by the learned judge delivering the opinion in that case that under the rule in Jack v. McKee a grandson whose services, at his own estimate, did not exceed in value $1,800, had swept away the fairest portion of an estate by a recovery of $10,000; while in another case a domestic whose services, had they been the subject of compensation, would have been comparatively insignificant, had, under the rule above mentioned, taken an entire estate from the right heir. A rule under which such disastrous and anomalous results are possible, should not, in our opinion, be perpetuated unless it finds its support in principles that are altogether beyond cavil.

The same year in which the Pennsylvania court overruled Jack v. McKee and other kindred cases, the New York court, in Erben v. Lorillard, 19 N. Y. 299, disapproved of so much of Burlingame v. Burlingame and King v. Brown, supra, as lent auy support to the doctrine under consideration.

It must, we think, be conceded that every provision of the statute of frauds exerts its influence upon contracts, such as we are here considering, to the same extent and with the same potency as upon other contracts for the sale and transfer of property, and if

Y. 494; Campbell v. Campbell, 65 Barb. 639; Reynolds v. Robinson, 64 N. Y. 589; Emery v. Smith, 46 N. H. 151; Sutton v. Rowley, 44 Mich. 112; Welch v. Lawson, 32 Miss. 170; Bender v. Bender, 37 Peun. St. 419; Maddison v. Alderson, 8 App. Cas. 467; S. C., 35 Moak's Eng. Rep. 790; Clark v. Davidson, 53 Wis. 317; S. C., 10 N. W. Rep. 384; Howard v. Brower, 37 Ohio St. 402; Wood Frauds, §§ 221-235. Many other cases might be cited which support and illustrate the conclusions reached, but those referred to are deemed sufficient. The value of the services are to be determined without any reference to the value of the estate of the intes tate. But in estimating the value of the services, re gard should be paid to the situation of the parties, the nature of the service required or performed. Allowance should be made too for the fact, that under the circumstances, the presence and society of the plaintiff's ward may have been of sufficient value to compensate for her education, clothing, and support.

To the extent that Frost v. Tarr, and Lee v. Carter, supra, announce a rule contrary to the conclusion herein reached, they may be considered as modified.

The judgment is reversed, with costs, with direc tions to the court to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

MARRIAGE - DIVORCE FOR ADULTERY-CON-
NIVANCE.

MASSACHUSETTS SUPREME JUDICIAL COURT.
JANUARY 9, 1886.

ROBBINS V. ROBBINS.*

A nusband, being suspicious of his wife's fidelity, arranged to have a telegram sent him calling him away from his home to another town. He then told his wife that he was going away and should not return that night. Instead of going away, he returned to his house in the evening with a witness, and found his wife in bed with another man. The act of adultery would not have been committed that night had he not led her to think that he was to be away. Held, that there was no connivance on the part of the husband, and that a decree of divorce should be granted.

there is one class of cases more than another in which ACTION for divorce. The head-note shows the

"a tight rein should be held," and the statute vigorously applied, it is that class in which it is proposed by parol to intercept from rightful heirs the transmission of estates. Graham v. Graham, 34 Penn. St. 475.

That the evidence in this case tends to support the view that it was the purpose of the intestate to make provision for the plaintiff's ward by a will may be conceded; but as the agreement to do so was never manifested in writing, signed by her, and as it involved an agreement for the sale of real estate, and for the transfer of personal property exceeding in value $50, such agreement was subject to the operation of the statute of frauds, equally with all other agreements for like sales. Because the agreement was not withdrawn from the operation of the statute by part performance, it cannot be specifically enforced; neither can it be the foundation of an action for damages. Brown Stat. Frauds, § 124. It does however seem to rebut any pre. sumption, which otherwise might have obtained, that the services rendered were to have been gratuitously performed, or that they were performed under the mere expectancy that the intestate would leave the plaintiff's ward a legacy. She is therefore entitled to recover the value of her services. Jacobson v. Ex'rs of La Grange, 3 Johns. 199; Robinson v. Raynor, 28 N.

facts.

Marshall & Hamblet, for libellant.

C. Cowley, for libellee.

FIELD, J. The justice who heard the case found as a fact that the conduct of the libellant described in the report" constituted a scheme to detect the libellee if she was guilty; but that there was no corrupt intent that adultery should be committed, or any 88 sent to or connivance at it, unless the foregoing conduct amounted to connivance as a matter of law, which I ruled it did not." It is not found by whom the man who lodged in the house was invited to lodge there, or whether he was of good reputation, or that he was introduced by the husband to the wife, or that lodging there under the circumstances made him a member of the family, or what the conduct of the wife with him was which excited the suspicions of the husband; and it is impossible to hold that on the facts found, it was so far the duty of the husband to expel the lodger, that by not doing this, he must be held, as matter of law, to have connived at the adultery.

This court has assumed that the Legislature, in conferring upon it jurisdiction to grant divorces from the bonds of matrimony, although the statutes make no

*5 N. E. Rep. 837.