#### WILLIAM W. GRIFFIN vs. ISAIAH SIMPSON.

Money, belonging to an intestate, used by bis widow after his death,' mas6 be accounted for by her to the administrator.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1850, His Honor, Judge Ei** lis, presiding.

Burgwin, for the plaintiff*.

Heath, for the defendant.

Nash, J.

The action is in assumpsit, to recover a sum of money, left by the plaintiff’s intestate at the time of his death, and, which, it is alleged, came to the hands of the female defendant, and which was used by her. The defence was, that the money, if used by her, was used in burying the intestate and supporting the family, and that not more was left by him than was necessary for those purposes. His Honor instructed the jury, that the defcn> dant, Mrs. Simpson, as the widow of her deceased husband, had a right to use as much of the money on hand, as was necessary to pay the funeral expenses and also *127as much as was absolutely necessary for the support and maintenance of the family, until her year’s provision was assigned her. The case states that, at the time James Brothers, the intestate, died, he left an ample store of necessary provisions.

We do not concur with his Honor in the view he took of the law in this case. The privilege of a widow, upon the death of her husband, intestate, to interfere with the personal property left by him, is clearly pointed out by the 17th sec. of 121st ch. of Revised Statutes. By that section it is provided, that “ she may take into her possession and charge, the whole of the personal estate, and to use so much of the stock, crop and provisions, then on hand, as may be absolutely necessary for the support of herself and family, until administration is granted, when her right to the possession of said estate shall cease.” It is by virtue of this statute alone, that a widow is, in this State, authorised to interfere with the personal property of her deceased husband. It is conceived in a spirit of kindness to her and the family, and frees her from the risk of becoming an executor of her own wrong, which any intermeddling with it would otherwise have made her. By the charter of Henry 1st, and by Magna Charta, she wasentitled toherquarantine, which is the right to remain in the capital mansion house of her husband for forty days, within which time her dower was to be assigned her. Of the personal property no mention is made, nor until the act above recited, originally passed in 1796, was she, in this State, authorised to intermeddle with the personalty. It all belonged to the administrator, when appointed, and his letters related back to the death of the intestate. Until such appointment, any person, as well the widow as others, who intermeddled with the assets, except to take care of them, made himself an executor of his own wrong. The act of 1796 made the possession of the widow a rightful one, and invested her with the pow*128er to use a certain portion of the stock, crop, and provisions on hand, for a certain and specified purpose. This right existed until administration granted, and it is made her duty to take out letters, at the next term of the County Court, succeeding the death. But the act nowhere authorizes the widow to use the money, which is left; as to it she stands as any other person, and if she does use it for any purpose, she is using money that does not belong to her, and must account for it to the administrator. His Honor charged, that she had a tight to use as much of this money, as was necessary to defray the funeral expenses and to purchase such provisions, as were absolutely necessary for the support of herself and family, until her year’s provisions were assigned her. The latter branch was uncalled for. From the case it appears, that at the death of Mr. Brothers, the intestate, he left his family amply provided with everything necessary to their comfort. It was not necessary, therefore, for the widow to purchase any thing. ■ But the charge was Wrong in principle. If there had been a deficiency of crop, stock and provisions on hand, and the widow had used the money of the estate, she Would have done what the law .did not allow. So also as to the funeral expenses. The speedy interment of the body was demanded alike by a decent regard to the opinion of the community, the rights of humanity, and the comfort of the family. And upon whom does that duty more appropriately devolve, than upon the surviving head of the family. But it is a moral and not a legal duty — one of imperfect Obligation. Imperfect, so far that the law cannot compel the surviving wife to perform it — and yet so strong, that its neglect would be punished by the universal execration of the community. While, therefore, no voice could be raised to condemn the act of a widow, who uses so much •of the money of the estate, as may be necessary to. deposit in- its resting place the body of her husband, the *129law with a stem adherence to the rights of others, disavows the right to do so. She had no authority to make use of the money of the estate. In doing so, she became responsible to the administrator, when appointed, and the most she could claim would be to be considered as an executor in her own wrong, in which capacity, her disbursements in discharge of the liabilities of the estate would be allowed her. For, although funeral expenses are not strictly a debt due by the estate, it is a charge upon it, and to be paid as “ opus pium et caritatis,” before any debt or duty whatever. 3rd Coke’s Institutes 22, Toller 191. The instructions given to the jury on both points were erroneous. Mrs. Simpson, as the widow of the intestate, her former husband, had no legal right to use the money belonging to the estate for either of the purposes designated.

The judgment must be reversed and a venire de novo ordered.

Ruffin, C. J.

The act of 1796 entitles a widow to use as much of the crop, stock, and provisions left by her intestate husband, as may be necessary for the support of herself and the family, until the administration granted. But neither that act nor any other authority confers any power on her, more than on any other person, to use money left by the intestate for any purpose whatever. — ■ Therefore she must account to the administrator for whatever comes to her hands, like every other person would. If the widow had defrayed the expenses of the funeral, she might have been allowed them, as far as they were proper, in reference to the estate, by way of abatement in the amount recovered. But there was no evidence, that the widow conducted the funeral or paid any part of the expenses of it; and she was bound therefore to pay the plaintiff all the money she took, and the in» *130strnctions were erroneous, and the verdict wrong as to the whole sum.

Per Curiam. Judgment reversed and venire de novo.