#### John Parker adm’r. of Wm. Parker v. Exum Lewis adm’r. of Richard H. Dicken.

From Edgecomb,

Puneral expenses are a charge upon the assets, independently of any promise by the administrator, and if proper to the estate and degree of the deceased, must be preferred to all other debts.

The question of propriety involves in it the enquiry, whether funeral expenses were unnecessarily and officiously incurred by a stranger.

Per I-lENDEitsoir, Judge. — The case of Gregory v. Hooker was decided upon the ground, that notice was not given the Defendant of a charge for funeral expenses, and does not affect their priority in a course of administration.

Assumpsit brought to recover the balance of an account, including the sum of thirty-seven dollars for the funeral expenses of the Defendant’s intestate.

On the issue of fully administered, it appeared that the Defendant had notice of the claim before the action was brought, and tiie only question was, whether the Defendant could retain the assets in his hands, to satisfy a judgment he had obtained against the intestate in his lifetime.

His honor Judge Norwood, informed the Jury that funeral expenses were preferred to debts of record, that *22the administrator was liable for them in bis character of administrator, without a previous request or promise.

Dec. 1828

Under this charge, the Jury returned a verdict for j¡)e Plaintiff and the Defendant appealed.

No Counsel appeared for the Appellant.

Mor decaí, for the Plaintiff.

Henderson, Judge.

Funeral expenses are to be paid in preference to any other debt, out of the assets of the deceased, not excepting debts due by record, even to the sovereign. They form a charge upon the assets, independently of any promise by the executor or administrator, upon th,e ascertainment of the fact that they are of that description, and proper for the estate and degree of the deceased. .These enquiries however, of course, leave open the question whether they were unnecessarily or officiously incurred by <a stranger. We disclaim the intention of weakening the claim of these expenses to a priority, when we decided the case of Gregory v. Hooker’s administrator, (1 Hawks, 394). But we should say again in a case like the one alluded to, that notice of the fact that a pillow had been furnished, and was claimed as a funeral charge, should have been given before the action was brought, and the assets exhausted. For although the pillow might have been entered in the account, yet it contained a great variety of articles, and was not presented as for a funeral charge, or any part thereof; nor was it made known that it contained any such item. In that case we did not pretend to say what would have been the rule, if the executor had taken no orders for the interment of the deceased. — But that an individual, who had contributed in so small degree to those expenses, could not, without ¡previous notice, sustain an action against an administrator. For if the rule of law was different, the administrator might, without any default on his part, be subjected to as many actions as there were items, of.' which the funeral bill was composed.

*23We concur in opinion with the Judge below, that these funeral charges, had a priority in a course of administration over the debts set up as a protection to the assets in the hands of the Defendant.

Per Curiam. — Let the judgment be affirmed.