filed a bill for an account of both partnership dealings, and a decree was made for that purpose, and in proceeding on that decree the Master directed the executor to bring in an account of the partnership dealings between, the deceased and surviving partner. Held, upon appeal from this direction, that the executor was bound to make up the accounts from the books of the partnership in his possession.1 This case is important as showing how far executors are bound to furnish accounts in the Master's office, as to matters with which they have themselves had no connexion. The point came before the Court on a motion to take off the files the Master's certificate that the defendant had made default in bringing in accounts directed by him to be brought in.

• The second direction is to take an account of the testator's (or intestate's) debts.

This means an account of the debts unpaid-not of those which the executor may have paid, for these will appear in his account of payments made on the account of the estate. It is in many, indeed in most cases impossible for the executor to answer this enquiry by his accounts filed. He can, however, insert in his statement such of the claims as have been sent to him under the advertisement, and if he is aware of any others, he should mention them in such terms as the facts of the case warrant. The description of the claims should be as full as if they were proven by affidavit. The Master will be able to answer this enquiry by observing the rules just referred to, and he will also be able to fix the order of priority after a consideration of the principles already discussed.

The third enquiry is an account of the testator's funeral expenses. The object of this special enquiry is to make the sum the Master may find to have been properly expended for this purpose a first charge on the estate.

The proper allowances to be made by the Master under this enquiry are governed by the duties of the executor; and first he must bury the deceased in a manner suitable to the estate he leaves behind him.2 Funeral expenses, says Lord Coke, according

1 Strathyly. Crooks, 6 Grant 162.

2 2 Black. Comm. 508.

3 3 Inst. 202.

to the degree and quality of the deceased, are to be allowed of the goods of the deceased, before any debt or duty whatsoever. But the executor or administrator is not justified in incurring such as are extravagant, even as it respects legatees.or next of kin entitled in distribution:1 Nor, as against creditors, shall he be warranted in more than are absolutely necessary. In strictness, said Lord Holt, no funeral expenses are allowed in the case of an insolvent estate, except for the coffin, ringing the bell, and the fees of the parson, clerk, and bearers; but not for the pall or ornaments; 2 and in the year 1695, it was stated, that Baron Powel, on his circuit, would allow but 11s. 6d. under a plea of plene administravit ; which he said was all the necessary charge. However, it appears that Lord Holt, where, under that plea, 150l. was charged for the testator's funeral, said that at least 1401. ought to be deducted; for 107. is enough to be allowed for the funeral of one in debt.4 (1)

3

Lord Hardwicke, in Stag v. Punter,5 upon exceptions to a Master's report for not allowing 60l. for the testator's funeral, said, "At law, where a person dies insolvent, the rule is, that no more shall be allowed for a funeral than is necessary; at first only 40s.,

1 See Stackpoole v. Stackpoole, 4 Dow. 227.

2 Shelly's case, 1 Salk. 296. Perhaps, observes Dr. Burn, The expenses of the shroud and digging the grave ought to have been added: 4 Burn. E. L. 348, 8th edit.

3 Anon., Comberb. 342.

5 3 Atk. 119. (1)

4 Ibid.

(1) In the case of the Appeal of M'Glinsey, 14 Serg. & Rawle, 64, the Supreme Court allowed the sum of $358.75, for funeral expenses, including a vault and tombstone. It was observed by the Chief Justice; "The deceased had a good estate and no children; and the widow, who was entitled to one-half wished to be liberal in honor of his memory. A handsome tombstone was erected over a vault, in which the body was interred, and this was the principal article of expense. But there was one article which should be rejected-I allude to a picture of the deceased, painted after his death. If the widow desired a memorial of this kind, she should pay for it herself." See also, the Appeal of Metz, 11 Serg. & Rawle, 204. Patterson's Estate, 1 Watts & Serg. 292. Bosio's Estate, 2 Ashm. 438. Jennison v. Hapgood, 10 Pick. 77.

It is the duty of the executor or expected administrator, to bury the deceased in a manner proportioned to the estate he leaves behind him. Hapgood v. Houghton, 10 Pick. 154. If the executor be not at hand or be unknown, any friend may do it, and the necessary expense is to be paid first in the order of debts. Matthews on Ex. 68. For this expense, the executor with assets is liable to the person who furnishes the funeral, though he neither ordered it or even knew of it. As against legatees or next of kin, such expenses may be incurred as will bury the deceased according to the station he occupied in life, but as against creditors the rule is much stricter, nothing being allowed beyond what is absolutely necessary Matth. Ex. 69. Flintham's Appeal,

11 S. & R. 16. M'Glensey's Appeal, 14 S. & R. 64. Toll. Ex. 245. But if there be the least risk that the estate will prove ultimately insolvent, then any unnecessary funeral expense will be at the risk of those who authorized it. Hancock v. Padmore, 1 B. & Adol. 260. A demand for mourning for the widow and family of the deceased, would not be allowable in England as part of the necessary funeral expenses. Johnston v. Baker, 2 Car. & P. 207. But in Wood's Estate, 1 Ashm. 314, it was held by the Orphans' Court, at Philadelphia, that administrators are entitled to a moderate allowance for money expended in procuring mourning for the widow and children of the deceased, although the estate is insolvent. And the estate of a testator was held not liable for the funeral expenses of his widow. Lawall v. Kreidler, 3 Rawle, 300. Black cloth and ornaments placed around the pulpit on the occasion of the burial, on the shroud and coffin, belong to the executor or administrator or person at whose expense they were furnished. A creditor cannot legally arrest or detain and prevent the burial of the dead body of his debtor until his debt is paid. A conspiracy to prevent a burial, is indictable at common law. Matth. Ex. 71, 72. Hood on Ex. 25, 34.

then 5l., and at last 107.1 I have often thought it a hard rule, even at law, as an executor is obliged to bury his testator before he can possibly know whether his assets are sufficient to pay his debts: But this Court is not bound down by such strict rules, especially when a testator leaves great sums in legacies, which is a reasonable ground for an executor to believe the estate is solvent: As this is the case here, I am of opinion that sixty pounds is not too much for the funeral expenses, especially as the testator had directed his corpse should be buried at a church thirty miles from the place of his death."

In Hancock v. Podmore, issue was taken, in an action by a creditor against an executor, on a plea of plene administravit, and it was proved that assets to the amount of 1291. had come to the hands of the defendant, and that he had paid 55l. for probate duty, and 791. for funeral expenses: The deceased had been a captain in the army, and the question was, whether the defendant could, as against a creditor, apply so large a sum as 791. to such a purpose : The Court of King's Bench was of opinion that the sum was too great to be allowed: But Mr. Justice Bayley, in delivering the judgment of the Court, observed that although the rule is, that, as against a creditor, no more shall be allowed for a funeral than is necessary, yet in considering what is necessary, regard must undoubtedly be had to the degree and condition in life of the party; and his Lordship observed that the sum of 107., mentioned by Lord Hardwicke as the established allowance in his time, might perhaps, at the present day, be less than what should be reasonably allowed for a person of condition: The learned Judge proceeded to intimate that the Court thought 20l. would be a proper sum for the funeral of a person in the degree and consideration of life of this testator.$

It must not, however, be understood that the Court in Hancock v. Podmore, laid it down as a rule, that even the sum of 20l. should be the limit of the allowance, where the estate is insolvent; but that it was the proper limit under the circumstances of that case: The rule appears to be, that the executor is entitled to be allowed

1 But in Buller's N. P. 143, it is said that the usual method is to allow five pounds; and in Selwyn's N. P. 776, n, 18, 6th edit, a MS case of Smith v. Davies, Middlesex Sittings after M. T. 10 Geo. II., is mentioned, where this latter sum was allowed by Lord Hardwicke himself.

2 1 Barn, & Adol. 260.

3 See Yardley v. Arnold, 1 Carr. & M. 434. 438, per Parke, B.

reasonable expenses according to the testator's condition in life; and if he exceeds those, he is to take the chance of the estate turning out insolvent: No precise sum can be fixed to govern executors in all cases: It must obviously vary in every instance, not only with the station in life of each particular testator, but also with the price of the requisite articles at the particular place.1

In Bisset v. Antrobus,2 Sir L. Shadwell, V. C., refused to allow 2,2101. for the funeral expenses of a deceased nobleman, whose personal estate was believed to be solvent at his death, but ultimately, from unforeseen circumstances, proved to be insolvent : And his Honor referred it to the Master to enquire and state what sum ought to be allowed.

With respect to allowances for funeral expenses, where there are assets sufficient, as against other persons than creditors: In Offley v. Offley, there had been 6007. laid out in Mr. Offley's funeral, and the Court decreed that sum to be a great debt to affect the trust estate, Mr. Offley being a man of great estate and reputation in his county, and being buried there but if he had been buried elsewhere, it seemed his funeral might have been more private, and the Court would not have allowed so much.4

In Paice v. the Archbishop of Canterbury,5 a payment of 931. 128. 6d. for mourning rings distributed among the relations and friends of the deceased was allowed by Lord Eldon to the executors: The will had not given any directions on the subject, but committed any thing not specified" to the discretion of the executors.

6

In Mullick v. Mullick, on an appeal to the Privy Council from

1 Edwards v. Edwards, 2 Cr. & M. 612. S. C. 4 Tyrwh 438. See also Reeves v. Ward, 2 Scott, 395. 2 4 Sim. 512.

3 Prec. Chanc. 261.

4 See Stackpoole v. Stackpoole, 4 Dow. Bridge v. Brown. 2 Y. & Coll. C. C. 181.

5 14 Ves. 364.

4 In Johnston v. Baker, 2 Carr. & Payne, 207, Best, C. J. held that a demand for mourning, furnished to the widow and family of the testator, is not a funeral expense, such as can be claimed against the estate by the executor, if he gives the order for it; and consequently, that a legatee, who had not received his legacy, was a competent witness on behalf of the executor in an action brought against him for the recovery of such demand. See also Bridge v. Brown, 2 Y. & Coll. C. C. 181. 186. In Pitt v. Pitt, 2 Cas. temp. Lee, 508, Sir G. Lee allowed a widow for her mourning, in her account, an administratrix, in the Ecclesiastical Court.

5 1 Knapp, 245. (1)

(1). Where a person, being at a distance from home, sent for his wife and other relatives, and they went to see him, but did not arrive until after his death, and his executor paid the expenses of their journey, he was allowed to charge the same in his account of his administration. Jennison v Hapgood, 10 Pickering, 77. Consult 1 Lomax on Ex'ors, 595, 2d edition. Ram on Legal Assets, 257.

an order of the Supreme Court of Bengal, it was held, with respect to the expenses of the funeral obsequies of a Hindoo testator, that as the Will gave no directions how they were to be performed, the only question to be considered was, whether the sums allowed for their performance were more than had usually been expended at the funerals of persons of the same rank and fortune as the deceased.

In a case, (before the statute 11, Geo. I. c. 18, enabling freemen of London to bequeath their whole personal estate) where a citizen of London by Will had devised 7007. for mourning, the question was, whether this 700/. should come out of the whole estate, or only out. of the legatory part; for it was insisted, if there had been no direction by the Will, or if the Will had only directed that the expenses of the funeral should not exceed such a sum, there the deduction must have been out of the whole estate: Pur. Cur.: Mourning devised by the Will must come out of the legatory part, and not lessen the orphanage and customary share.1 Since the above statute the point cannot arise, except perhaps in a case where the freeman has agreed before marriage that his personal estate shall, at his death, go according to the custom. In case a freeman of London dies intestate, his funeral expenses are to be paid out of the general personal estate and not the dead man's part merely.2

The question of the liability of an executor or administrator, for the expenses of the funeral of the deceased, will be considered in a subsequent part of this treatise.

A testator's sister having procured a marble statue to his memory, his widow, who was acting executrix of his Will, having no funds. of the estate, gave her note to the sister for the price, which was moderate in reference to the estate and degree of the deceased; but the note had not been paid, when she made her claim for it in an administration suit, and its allowance was opposed by the testamentary guardian of the infant legatees. The question did not affect creditors of the deceased, and it was contended that the estate was liable for the note, or for the price of the slab.3

It may here be observed that in practice the testamentary

1 Deakins v. Buckley, 2 Vern 240. S. C. 1 Eq. Ca. Abr. 159, pl. 1.

2 Swinb. Pt. 3, c. 16, pl. 3.

3 Menzies v. Ridley, 2 Grant 544,