Opinion
No. 29737
Decided April 12, 1944.
Aid for aged — Payments to person and spouse preferred claim against deceased person's estate — Section 1359-7, General Code (119 Ohio Laws, 238, 241) — Ambiguous and indefinite section creating liability strictly construed — Estate of wife not liable for aid furnished to husband, when.
1. Section 1359-7, General Code (119 Ohio Laws, 238, 241), a part of the "Old Age Pension Law," providing that "upon the death of a person, the amount of aid paid to said person and to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person," is ambiguous and indefinite and, being a statute creating a liability, should be strictly construed in favor of the one sought to be subjected to its terms.
2. Under such strict construction, the section applies only to the estate of a recipient of aid and therefore where a husband has received aid but his wife has not, no claim for the aid furnished the husband may successfully be made against the wife's estate, in the absence of an agreement on her part to be bound.
APPEAL from the Court of Appeals of Jackson county.
In September of 1935, Archibald A. Arnold and Allie E. Arnold, husband and wife, were living together in a residence property she owned in the city of Wellston, Ohio, which was encumbered by a mortgage. He had then "attained the age of 65 years or upwards," while she was approximately 58 years old. They had no children.
Mr. Arnold applied for aid under the "Old Age Pension Law," Section 1359-1 et seq., General Code of Ohio, which application was granted. He received aid regularly from September of 1935 until his death on March 4, 1941, the entire amount paid him being $1,659.60. Mr. Arnold left no estate of any appreciable value and no administration was had thereon.
Mrs. Arnold, being ineligible because of her age, never received any payments under the pension law. In October of 1939 she filled out a questionnaire, headed "Form for Data from Responsible Relatives," apparently requested by the Division of Aid for the Aged, in which she listed her assets, including her real estate, but made no commitment or agreement that such property should be liable for the financial assistance rendered her husband. No claim in connection with the aid furnished Mr. Arnold was ever presented to Mrs. Arnold during her lifetime.
She died on January 13, 1942, leaving a net estate, including the real property mentioned, of between $2,500 and $3,000. The Division of Aid for the Aged duly filed a claim with the administrator of Mrs. Arnold's estate for $1,659.60, representing the total sum paid Mr. Arnold while he lived. Such claim was rejected and thereafter an action was brought against the administrator in the Court of Common Pleas of Jackson county, asking a money judgment for the amount of the claim, with costs.
A jury being waived, the case was submitted to the court upon an agreed statement of facts, and a finding and judgment for the defendant-administrator were entered. Such judgment was affirmed by the Court of Appeals and the case is now in this court on its merits, following the allowance of the motion for certification.
Mr. Thomas J. Herbert, attorney general, and Mr. Richard C. Gerken, for appellant.
Mr. Harry B. Reese, Mr. Charles M. Hogan and Miss Mary D. Hogan, for appellee.
As stated by the plaintiff in its brief, the only question involved in this case is whether the estate of Mrs. Arnold is liable under Section 1359-1 et seq., General Code, for the financial aid furnished her husband during his lifetime, regardless of whether she entered into a contractual obligation to repay the same.
Section 1359-7, General Code (119 Ohio Laws, 238, 241), effective August 14, 1941, relied on by the plaintiff, reads as follows:
"Upon the death of a person, the total amount of aid paid to said person and to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person, having priority and preference over all unsecured claims except the bill of the funeral director not exceeding two hundred dollars, the expense of the last sickness and those of administration, and the allowance made to the widow and children for their support for twelve months."
As originally enacted in 1933, Section 1359-7, General Code (115 Ohio Laws, pt. 2, 431, 433), provided:
"Upon the death of a person, the total amount of aid paid to him under this act and to his or her spouse, with interest thereon at four per centum per annum, shall be a debt of the estate of such deceased person;" etc.
In 1937 (117 Ohio Laws, 317, 318), the statute was amended so as to contain a disjunctive feature, and stated:
"Upon the death of a person, the total amount of aid paid to said person and/or to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person," etc.
Then in 1941 the statute was again amended and now reads according to the first quotation above.
In reaching a decision in this case it is to be borne in mind that there is no constitutional or common-law duty on the part of the state or any governmental unit to support poor and destitute persons. The whole matter of relief for the needy is purely statutory. People, ex rel. Heydenreich, v. Lyons, 374 Ill. 557, 30 N.E.2d 46, 132 A. L. R., 511. Hence, the statutes are the only authority which may be looked to in seeking recovery from a relative of an aged person on account of governmental aid extended such person, or in seeking recoupment from the estate of the recipient of such aid, after his death. If there is no statute authorizing it, there can be no recovery. Alameda County v. Janssen, 16 Cal.2d 276, 106 P.2d 11, 130 A. L. R., 1141; City of Worcester v. Quinn, 304 Mass. 276, 23 N.E.2d 463, 125 A. L. R., 707.
As interpreted by the plaintiff, Section 1359-7, General Code, has the following meaning with reference to the instant case:
Upon the death of Allie E. Arnold the total amount of aid paid to her and the total amount of aid paid to her spouse, Archibald A. Arnold, under this act, shall be a preferred claim against the estate of such deceased person, viz., Allie E. Arnold.
That interpretation would correspond with subdivision 10 of Section 3391-2, General Code, and with Sections 125 (as amended by Laws 1936, c. 426) and 128 (as amended by Laws 1936, c. 463), of the Public Welfare Law of New York, which provide that the husband, wife, father, mother, etc., of a recipient of public relief, if of sufficient ability, shall be responsible for the support of such person, and authorize recovery against the designated relatives or their estates for the amount of the relief furnished.
The defendant insists that the statute as last amended is intended to affect only the estate of a recipient of aid, and should be interpreted as follows:
Upon the death of Archibald A. Arnold, the total amount of aid paid to him, viz., $1,659.60, and to his spouse, Allie E. Arnold, under this act, which was nothing, shall be a preferred claim against the estate of such deceased person, viz., Archibald A. Arnold.
Compare Dimke v. Finke, Dir., 209 Minn. 29, 295 N.W. 75; State v. Whitver, Admr., 71 N.D. 664, 3 N.W.2d 457; State v. Wehe, 72 N.D. 186, 5 N.W.2d 311.
As sustaining his position, the defendant points out that the General Assembly in changing the language "and/or" to "and" must be presumed to have intended to change the effect and operation of the law and that such change lends force to his construction of the statute (citing Malone v. Industrial Commission., 140 Ohio St. 292, 299, 43 N.E.2d 266, 270, and other cases); that the latter part of Section 1359-15 a, General Code, and Title 42, Chapter 7, Section 303 (2), (B), U.S. Code, a part of the Social Security Act, taken together indicate an intention that reimbursement shall be sought only from the estates of deceased persons who have received aid ( County Dept. of Public Welfare of Allen County v. Potthoff, 220 Ind. 574, 44 N.E.2d 494); and that at the time of the passage of Section 1359-7, General Code, in its existing form, the last paragraph of Section 1359-21, General Code, containing provisions designed to secure reimbursement of the amount of aid extended to an aged recipient from those legally responsible for his maintenance, was repealed.
It must be confessed that the enactment under examination is ambiguous and uncertain. Since it operates to create a liability it should be strictly construed in favor of the one sought to be subjected to its terms. 59 Corpus Juris, 1129, Section 668.
Applying, then, the rule of strict construction and considering the indefinite character of the statute, we think the judgments of the lower courts are supportable.
Plaintiff places some reliance on Section 7997, General Code, which recites:
"The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able."
This statute appears in the chapter of the General Code entitled "Husband and Wife" and is inapplicable to the present controversy. It does not create a legal liability against the wife for necessaries supplied the husband in the absence of an agreement on her part to be bound and where no circumstances are shown which would raise a presumption that she intended to pay. 21 Ohio Jurisprudence, 363, Section 36.
Under this statute, a wife must assist her husband only so far as she is able. At the time Archibald A. Arnold received aid, Section 1359-2, General Code, stipulated that aid could be furnished to an individual only in the event the Division of Aid for the Aged determined there was no spouse, or other person made liable by law for the support of such individual, able to furnish assistance. The fact that aid was granted to Archibald A. Arnold would indicate a determination that his wife was not in a position to help him.
Finding no reversible error in the judgment of the Court of Appeals, such judgment is affirmed.
Judgment affirmed.
HART, BELL, WILLIAMS and TURNER, JJ., concur.