HIRZEL FUNERAL HOMES, Inc.
EQUITABLE TRUST CO.
Suit by Hirzel Funeral Homes, Inc., etc., against Equitable Trust Company, executor under the last will and testament of John E. Kreggenwinkel, deceased, to recover expenses of burial of decedent's son. The Superior Court, Layton, J., held that deceased son's divorced mother and others had not represented themselves to be the agents of father with authority to negotiate contract of burial at father's expense and hence that purported ratification by father of burial contract was not binding upon deceased father's estate.
Judgment for defendant.
[46 Del. 335] John E. Kreggenwinkel died on June 28, 1948, leaving no estate other than certain policies of insurance of which his father, John H. Kreggenwinkel, was named beneficiary. The deceased was survived by his mother, Mrs. Winters, who had divorced Mr. Kreggenwinkel some years before and remarried, by his father, just referred to, and by one Bessie Bryan who was living with him at his death and who may have been his wife. If not, her exact relationship to deceased was not disclosed.
The father had suffered a stroke and was then in a convalescent home. He was illiterate and because of the stroke could
not talk. Whether he was incompetent is a question upon which some testimony was taken at the trial, but I have decided that a decision on this point is not necessary.
Immediately upon the death of the son, deceased's mother, Mrs. Winters, Mr. Winters and Bessie Bryan went to the Funeral Home of plaintiff, Hirzel, arranged for his burial and charged the account to the father. At the time they had in their possession the policies of insurance naming the father as beneficiary. They left stating in substance that they would talk to the father at the convalescent home; that they were on friendly terms with him. Reading between the lines, it is to be surmised that Hirzel assumed that the father would be induced to pay the bill from the proceeds of the policies for he opened the burial account [46
Del. 336] against John H. Kreggenwinkel. Plaintiff, Hirzel, did not know the father. In August, Hirzel sent a bill for the son's burial to the father, which was not paid. In November the father's attorney, John F. Lynn, Esquire came to the convalescent home with a document which the father signed by making his mark thereon. The instrument read as follows:
‘ I authorize my attorney, John F. Lynn, to pay over unto the Hirzel Funeral Homes, Inc. the sum of Nine Hundred Ninety-Three Dollars ($993.00) in full payment and satisfaction of the bill incurred in connection with the burial of my son, John E. Kreggenwinkel, the said bill to be paid from the proceeds of the following insurance policies: The Equitable Life Assurance Society of the United States, Certificate No. 8049-1578, in the amount of One Thousand Dollars ($1,000.00), the Equitable Life Assurance Society of the United States, Certificate No. 8049-X-1578, in the amount of Four Thousand Dollars ($4,000.00) issued on the life of my son (group insurance at the Delaware Power & Light Company) and the balance of the proceeds of the said insurance policies is to be paid to my trustee, The Equitable Trust Company.
‘ I authorize my said attorney, John F. Lynn, to act as my agent to sign and endorse any check from the said insurance company payable to my order for the purpose of collecting the proceeds of the policies and to execute on my behalf any release or other acquittance required by said company in satisfaction of the payment of the proceeds of the policies.’
This writing never came into plaintiff's possession. Mr. Lynn did not attempt to pay the funeral bill in accordance with the provisions of the instrument above recited and the father subsequently died. The Equitable Trust Company, his Executor, having refused to pay the bill, this suit was instituted.
It is claimed that the instrument signed by the father in November, 1948, created a legal obligation on his part to pay the funeral bill and on his death was a valid debt of the estate. [46
Del. 337] The sole theory of recovery relied upon is that this instrument evidenced a ratification of the acts of Bessie Bryan and Mrs. Winters in ordering the funeral expenses charged to the father.
Thomas Herlihy, Jr., Wilmington, for plaintiff.
Henry M. Canby, Wilmington, for defendant.
Before LAYTON, J.
A contract made by an agent for his principal either wholly without authority or in excess of his authority may, of course, be ratified by the principal and once ratified becomes as binding as if originally made by him. But there is a well settled exception to this rule in cases where the plaintiff knew at the ...