At common law the husband was under obligation to supply the wife with such necessaries as, in view of his fortune, were reasonably suitable to her station in life, and in the event of her death to provide appropriate burial for her body and to pay all the funeral expenses. Jenkins v. Tucker, 126 Eng. Reports, 55, 4 C. P., 90; Ambrose v. Kerrison, 138 Eng. Reports, 307, 16 C. P., 776. This “last act of piety and charity” devolves upon him because “the law makes that a legal duty which the laws of nature and society make a moral duty.” Willes, J., in Bradshaw v. Beard, 142 Eng. Reports, 1175, 20 C. P., 344.
This doctrine is approved in a majority of the jurisdictions of this country and is founded either on the common law or on the view that local statutes do not abrogate the common-law rule. Smyley v. Reese, 53 Ala., 89, 25 A. R., 598; Beverly v. Nance, 224 S. W. (Ark.), 956; In re Weringer’s Estate, 34 Pac. (Cal.), 825; Brezzo v. Brangero, 196 Pac. (Cal.), 87; Gustin v. Bryden, 205 Ill. App., 204; Scott v. Carothers, 47 N. E. (Ind.), 389; Rocap v. Blackwell, 137 N. E. (Ind.), 726; Phillips v. Tribbey, 141 N. E. (Ind.), 262; Stonesifer v. Shriver, 59 At. (Md.), 139; Sullivan v. Horner, 7 At. (N. J.), 411; Kettener v. Nelson, 37 L. R. A. (N. S.), (Ky.), 754; Kenyon v. Brightwell, 120 Ga., 606, 48 S. E., 124, 1 Ann. Cas., 169 and note; Hall v. Stewart, 135 Va., 384, 116 S. E., 469, 31 A. L. R., 1489, and annotation.
Many of the decisions enunciate the principle that the separate estate of the wife is not liable for funeral expenses. It was so held in Bowen v. Daugherty, 168 N. C., 242, although as therein stated courts of eminent ability and learning have held that by reason of local statutes the estate of the deceased wife is primarily liable. In that case it was shown that the wife died intestate seized of a tra.ct of land, but not leaving sufficient personal property to pay the claims against her estate. *476 Q. W. Bowen qualified as her administrator and filed a petition to sell the land to pay claims, including funeral and burial expenses. The accounts against her estate were made after the adoption of the act giving married women the right to contract. Soon after her death her husband died, leaving enough property to pay these claims and all debts against his own estate. The trial court adjudged that the estate of the deceased wife was liable and that the land should be sold. On appeal the judgment was reversed.
After saying that the husband is liable for the funeral expenses and “necessaries” furnished the wife during their married life, the Court, in elucidation of its position, held that a married woman in proper instances may now be liable on the common counts in assumpsit; but in the absence of a promise and of any evidence tending to show that credit was given to her, or of any facts and circumstances to make her exclusively or primarily liable under the general equitable principles of indebitatus assumpsit, there was no reason why a debt of the husband should be imputed to the wife. It was suggested that if the husband should fail to pay reasonable funeral charges, or his estate should be insolvent, an equity might arise in behalf of a creditor enabling him to collect from the wife’s estate — this on the ground of necessity, or on the principle that a parent who is unable to support his child may charge the child’s estate with maintenance. Smyley v. Reese, supra; Nashville Trust Co. v. Carr, 62 S. W. (Tenn.), 204; Kenyon v. Brightwell, supra.
Funeral expenses are not technically a debt, but a charge upon the estate of the deceased. Gregory v. Hooker, 8 N. C., 394; Parker v. Lewis, 13 N. C., 21; Ward v. Jones, 44 N. C., 127; Ray v. Honeycutt, 119 N. C., 510. In the case last cited it is said that the necessary and proper expenses of interment are a first charge upon the assets in the hands of the personal representative, and that the law will imply a promise to him who, from the necessity of the case, for any reason incurs the expense of a proper burial. But it is obvious, as held in Bowen v. Daugherty, supra, that this principle is not intended to bind the estate of a deceased wife who died intestate, in exoneration of her surviving husband who is solvent.
It is said in the concurring opinion of Chief Justice Clark in Bowen v. Daugherty that the wife is not made responsible for articles bought for her support unless by her contract or conduct she leads the seller reasonably to understand that she assumes individual responsibility; and even then that the husband would remain liable and the seller could recover against either or both. The law which confers upon married women the capacity to make contracts, and to deal with their property as if they were unmarried has not abrogated the husband’s common-law liability for “necessaries” furnished his wife. His responsibility for the funeral expenses of his deceased wife rests upon the principle which *477makes Mm liable for her maintenance wMle sbe is living (Smyley v. Reese, supra); and Ms liability is ordinarily primary unless be is relieved therefrom by some contractual or testamentary provision. Phillips v. Tribbey, supra.
But in the present case is not the husband relieved of primary liability by the testamentary provision of his deceased wife ? In the second item of her will she expressly charged her separate estate with the payment of “all funeral expenses.” She had legal capacity to do so. Lipinsky v. Revell, 167 N. C., 508. In Bowen's case it is said that as a rule neither a wife nor her estate is liable for the payment of a debt contracted for “necessaries” furnished her, or for funeral expenses; but that her express promise is one of the modes by which she and her estate may be bound. The promise or charge upon her property may be by testament. In 1856 the point was considered by the English Court of Chancery in Willeter v. Dobie, 2 Kay & Johnson, 647. There the wife had charged her funeral expenses on the residue of her separate estate, and it was held that her husband, who had paid the expenses, was entitled to reimbursement out of the residue. Substantially the same principle is approved in McClellan v. Filson, 44 Ohio St., 184; Babbitt v. Morrison, 58 N. H., 419; Gustin v. Boyden, supra; Kenyon v. Brightwell, supra; Rocap v. Blackwell, supra. The logical effect of the wife’s testamentary charge upon her separate property is to impose ultimate liability upon her estate rather than upon the surviving husband. Willeter v. Dobie, supra; Wheeler’s Estate, 4 Pa. Dist. R., 265; Jackson v. Westerfield, 61 How. Pr., 399; Re Stadtmuller, 110 App. Div., 76, 96 N. Y., Supp., 1101.
If a married woman dies intestate her estate is chargeable with funeral expenses only in such exceptional instances as were pointed out in Bowen v. Daugherty; but if she makes a will charging her estate with the payment, the burden thus imposed becomes the primary liability.
The plaintiff is entitled to reimbursement.
Judgment affirmed.