#### TIMOTHY W. WARD & CO. vs. THOMAS JONES, AD’R.

Au executor or administrator must have a distinct notice, within a reasonable time, of a creditor’s demand for funeral charges, the amount due, and the articles furnished, before he is bound to pay it by suit.

Where the account sued on was composed of many items, a part of which were articles furnished for the burial, and the whole was presented to the administrator for payment: — Held, that the fact of the defendant’s having seen the articles purchased, and his having known for what purpose, (though hejknew not the price charged,) and the further fact that he said “he would have paid it if the plaintiff had presented his account right,” furnish no evidence of such notice as the law requires.

(The cases of Parker v. Levris, 2 Dev. 21, and Gregory v. Hookers, adm’r., 1 Hawks 405, cited and approved.)

This was an action of assumpsit against the defendant, as the administrator of Wright B. Evans, for goods sold and deliv-*128«red to the intestate, and for certain articles furnished for the burial of said intestate. It Was commenced by a warrant before a single magistrate, and by successive appeals carried to the Superior Court of Martin County, where it was tiled on the last Fall Circuit, before his Honor, Judge Settle. The account, which was filed, was made out against Wright B. Evans, and contained many small items, amounting in all to f> 10,8-100, and including the articles said to have been furnished for the intestate’s burial, which, however, were in no way distinguished from the other items in the account. The plea was fully ad/rmnistered.

Upon the trial, it appeared that the defendant had received assets to the amount of $5,00, and had disbursed the whole of them in payment of debts due by bond. The plaintiffs contended that the articles which they had furnished for the burial of the intestate, amounting to $1 60, had precedence over bond debts, in the administration of the assets; that the defendant had notice of their claim for the funeral charges; and therefore they were entitled to recover that amount. The testimony, upon which they relied to prove their claim for funeral charges, and that the defendant had notice of it, was as follows: One Johnson testified that he was the son-in-law of the intestate, and that the morning after his death, he went to the store of the plaintiffs and bought the articles contained in their account, charged as nine yards, of bleached at 12£ cents a yard, one yard of jeans at 15 cents, thread and buttons 12J,- cents., and one yard of muslin at 20 cents, which were bought for and used in the burial of the deceased; that the defendant was present and saw him buy the articles, and knew what they were for; but the witness could not say that the defendant knew the price at which the goods were charged. This witness stated further, that some time after the suit had been commenced, he heard the defendant say that he knew that these articles were bought for the burial of his,intestate, but that Mr. Ward (one of the plaintiffs) had made out his account Wrong — that he had charged the burial expenses with the other account he had against Evans, and that if he had presented his account for the burial expenses right, he would have paid it. A witness named Sherrod testified,-that some time before the warrant was brought he, Ward *129and the defendant were together, when Ward asked witness if he did not expect to get his debt for making the coffin of Evans. Witness said he did not know, to which Ward replied that he should go for his bill, and that he would get, any how, that part of his bill which was for burial expenses. The defendant remarked, “ it is very doubtful, gentlemen, whether either of you get any thing.” Sherrod stated further that upon presenting his account for tire coffin, at the end of about a year after the defendant had administered, he paid him without objection. Another witness named Cooper stated that before the warrant was sued out, he heard Ward tell the defendant that he had an account against Evans, part of which was for burial expenses; to which the defendant replied, he was willing to pay the burial expenses, and nothing more. Mr. Smithwick, the justice who tried the warrant, in which this whole account was claimed, stated that he heard nothing said about the account or any part of it being for burial expenses.

The defendant contended, that there was no testimony to show that he had notice of what the plaintiffs claimed for burial expenses, and that they therefore could not recover for them. The presiding Judge charged the jury that if they believed the witnesses, there Was evidence from which they might find that the defendant had received sufficient notice, and had assets liable to so much of the plaintiffs’ claim as was for funeral expenses. The jury found a verdict for the plaintiffs and assessed their damages to f 1.60, and from the judgment rendered thereon, the defendant appealed.’

No counsel for the plaintiffs.

Biggs and Moore, for the defendant.

Battle, J.,

after stating the case as .above, proceeded: The expenses necessary for the decent interment of a deceased person, and suitable to the estate which he leaves behind him, are a charge upon the assets in die hands of his executor or administrator, and have a preference over all other debts. 2 Bl. Com. 508. They bind the assets, independent of any promise by the executor or administrator, provided he is notified that they are claimed as a *130funeral charge* before the assets are exhausted in the payment of other demands. Parker v. Lewis, 2 Dev. Rep. 21. These principles seem to have been admitted on the trial, and the .only question in dispute between the parties Avas whether the defendant had received a proper notice of the plaintiffs’ claim, as a personal charge, before he had fully administered the assets Avhich came to his hands. If the testimony offered furnished 'any evidence of such notice, his Honor was correct in submitting it to the jury, whose province it was to decide upon its weight; and if they were in error in finding the fact, none but the Judge who presided at the trial, could correct it. But if the testimony afforded no evidence of notice, then his Honor erred in permitting the jury to pass upon it, and the error was one which it is our duty to revise and correct. Was there, then, any evidence to show such a notice as the plaintiffs were bound to give to the defendant, of the nature and extent of their demand, before they commenced their suit? We think that there Avas not. What is the object of a notice in such a case? It is undoubtedly to let the opposite party know what is demanded of him, in order that he may pay it, and thus save himself the trouble and expense -of a laAV suit. Was that done here? Certainly not. The defendant Avas told, indeed, by the plaintiffs that they had some claim against him for the funeral expenses of his intestate, but what Avas the amount of it, they would not let him know. On the contrary, they included the articles, furnished for the burial of the intestate, in the same account with those sold and delivered to him in his life time, and then demanded payment of the whole. Surely, it would be a mockery to hold such conduct of the plaintiffs to be a notice to the executors or administrators, of the nature and extent of their claim for funeral expenses. If the rule of laAV were so, then, as was strongly said by Hendee.soN, Chief Justice, in Parker v. Lewis, the executor or 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.

It may be remarked too, that this is not like the case of a bond due from the intestate, of which when notified in any Avay, it is the duty of the administrator to seek the creditor, and pay it off. *131But a claim for funeral expenses is not a debt contracted by the intestate, nor is it a debt contracted by the administrator. It is a charge thrown by necessity upon the assets in the hands of the administrator, and for which he is liable in respect of snch assets. Many different persons may have furnished materials for, or rendered services about, the funeral, each of whom will have a separate claim against the estate. In such a case, it seems but reasonable to require, that each shall give to the administrator a distinct notice of his claim, stating its amount and what it is for, before he is allowed to proceed to enforce it against him by suit. If he does this in a reasonable time, his demand will have priority over ail others; but if he gives no notice at all, or such a notice, only as tends rather to entrap the defendant than to inform him of what he claims, then he deserves nothing, and can recover nothing. See opinion of Henderson, J., in Gregory v. Hooker's, Achn’r., 1 Hawks, 405. The judgment must be reversed and a venire de novo awarded.

PER Curiam. Judgment reversed, and venire de novo.