Opinion
Opinion filed February 18, 1947. Appellant's motion for rehearing overruled March 21, 1947.
1. — Insane Persons — Husband and Wife. Section 501, R.S. Mo. 1939, providing that if any insane person be admitted into the state lunatic asylum as a patient the guardian shall pay for his support and expense at such asylum out of the estate of such ward, does not relieve the husband of an insane woman of his common law duty to support his wife; and if the husband as guardian of his insane wife, uses funds of her estate for her support and expense at a state hospital when he is solvent and able to pay therefor, the amount of the debt will be considered as so much money in his hands as guardian, to be accounted for in his settlement.
2. — Statutes. The law existing at the time of the enactment of a statute may be considered as casting light on the intended scope of the change made by it.
3. — Insane Persons. At common law the public authorities could not recover from a lunatic or his estate for expense incurred on his account.
4. — Husband and Wife. Notwithstanding statutory provisions enabling a married woman to enter into contracts and hold property in her own right, and making her separate property subject for any debt or liabilities of her husband created for necessaries for the wife or family, a husband remains primarily liable for such necessaries.
5. — Insane Persons — Husband and Wife. Where a husband as guardian of his insane wife used funds of her estate for the payment of her maintenance in a state hospital, and the trial court found, on ample evidence, that the husband was at all times able to pay for his wife's support at such hospital, the court properly subcharged his settlement with the amounts thus expended from the wife's separate estate.
Appeal from the Circuit Court of Warren County, — Hon. Frank Hollingsworth, Judge.
AFFIRMED.
A.H. Juergensmeyer and Glover E. Dowell for appellant.
(1) The burden was upon the exceptor to allege and prove that the payments made by the guardian out of the estate of the ward for the support and expenses of the ward at the State Hospital were unlawful. In re Lissner's Estate, 129 S.W.2d 1067, 1069; McCune's Estate v. Daniels, 76 S.W.2d 403, 409. (2) The approval of the seven annual settlements made by the guardian and of the final or turnover settlement made by the administratrix of the estate of the deceased guardian, is prima facie evidence as to the correctness of the charges and allowances therein contained. In re Taylor's Estate, 5 S.W.2d 457, 459 (2). (3) The payments made by the guardian out of the estate of his ward for the support and expenses of the ward at the State Asylum were authorized by statute, and were properly allowed by the Probate Court. Section 501, R.S. Mo. 1939. (4) The general, common law rule, that the husband is primarily liable for necessaries furnished his wife, has been expressly abrogated in this state by statute, in respect to payment of the support and expenses of the wife admitted as a patient at the State Asylum. By statute her estate is made primarily liable for her support and expenses, while at the Asylum. Section 6128, General Statutes of Kansas, Annotated 1915, McIntosh; Section 8459, General Statutes of Kansas, 1909, Dossler; State v. Bryan, 105 Kan. 483, 185 P. 25; State v. Moore, Admr., 90 Kan. 751, 755. (5) The language of the statute (Sec. 501, R.S. Mo., 1939) is plain, clear and unambiguous, and for the Courts to construe it so as to provide an exception, in the event the husband of the ward should also be the guardian, would amount to judicial legislation and would be an invasion of the legislative prerogative accorded to the General Assembly by the Constitution. Betz v. K.C. Southern Ry. Co., 284 S.W. 455, 462; Sleyster v. Donzelot Son, 25 S.W.2d 147, 149.
B.H. Dyer for respondent.
(1) A husband is bound as a matter of law to support and maintain his wife and to provide her with the necessaries of life. Pfenninger v. Brevard, 129 S.W.2d 924; Lowenstein v. Widdecomb, 52 S.W.2d 1044; Sauter Adams v. Scrutchfield, 28 Mo. App. 150; In re: Estate of Henry Woods, 288 Mo. 588. (2) The fact that a wife may have a separate estate does not relieve the husband of his duty to support his wife. Pfenninger v. Brevard, 129 S.W.2d 924; Reynolds v. Rice, 27 S.W.2d 1059; Kent v. Knight, 98 S.W.2d 318; Mfg. Trust Co. v. Gray, 278 N.Y. 380, 16 N.E.2d 373, 117 A.L.R. 1176. (3) Even though the wife may live separate from her husband, such separation does not relieve the husband of his duty to support his wife unless wholly due to the fault of the wife and against his will. Pfenninger v. Brevard, 129 S.W.2d 924; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Schultz v. Great Atlantic Pacific Tea Co., 331 Mo. 616, 56 S.W.2d 126; Delfelder v. Norton Bros. Const. Co., 98 S.W.2d 127. (4) A husband can not, even by contract made with his wife, relieve himself of the duty to support and provide for her. Such a contract is contrary to public policy and void. Cotter v. Valentine Coal Co., 14 S.W.2d 660, 664; 30 C.J. 516-517; 13 R.C.L. 1188; Caldwell v. Kries, 50 S.W.2d 725. (5) It is a husband's prime and paramount duty to support his wife, notwithstanding the Married Woman's Act giving her control of her separate estate. In re: Woods Estate, 288 Mo. 588, 232 S.W. 671. (6) The duty of a husband to provide all necessaries for his wife extends to the cost and expenses of her burial, even though she has an estate of her own. Kent v. Knight, 98 S.W.2d 318; Reynolds v. Rice, 27 S.W.2d 1059. (7) The obligation of a husband to support and provide for his wife does not abate by reason of her becoming insane. A curator of her estate can not waive the right of an insane wife, confined in a state hospital, to this support, and if her own estate has been compelled to pay for her maintenance, the husband remains liable to re-imburse the curator for the amounts so paid out. Mfg. Trust Co. v. Gray, 278 N.Y. 380, 16 N.E.2d 373, 117 A.L.R. 1176; Central Kentucky Lunatic Asylum v. Craven, 32 S.W. 291; Pfenninger v. Brevard, 129 S.W.2d 924. (8) The law makes a wife her husband's agent in the procurement of the necessaries of life and as such may bind him to pay for such necessaries even to the extent of borrowing money with which to obtain such necessaries and binding him to pay the loan. Reed v. Crissey Executor, etc., 63 Mo. App. 184; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64. (9) Upon death of a curator of estate of an insane person, his legal representative shall account for, pay and deliver to his successor all property of the insane person in such manner as the Court shall order on final settlement. Sections 48, 496, Statutes of 1939; State ex rel. Beardon v. Surety Co., 231 Mo. App. 491, 104 S.W.2d 755. (10) A curator of a ward's estate making use of the ward's money for his own benefit is required to pay interest thereon at the highest legal rate, compounded annually. Berry v. Berry, 218 S.W. 691; State ex rel. Deckard v. Macon, 186 S.W. 1157; In re: Ermeling's Estate, 131 S.W.2d 912; Section 418, Statutes of 1939. (11). At the making of a final settlement, all prior or annual settlements are drawn into the final settlement for review and examination. Picot v. Biddles Admr., 35 Mo. 29; North v. Priest, 81 Mo. 561; In re: Hutton's Estate, 92 Mo. App. 132; In re: Flynn's Estate, 142 S.W.2d 1069. (12) In construing a statute, it is a canon of construction, to which all others are mere aids, to get at the intent and purpose of the statute. Keeney v. McVoy, 206 Mo. 42, 64-68; Perry v. Strawbridge, 209 Mo. 621; Rector of Church of the Holy Trinity v. United States, 143 U.S. 457, 12 Sup. Ct. 511; 25 R.C.L. 1056, Sec. 281, "Statutes"; Humphries v. Davis, 100 Ind. 284; Kane v. Railway Co., 112 Mo. 34, 39. (13) In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are so repugant to the act that the survival of such rights would in effect deprive the statute of its efficiency and render its provisions nugatory. 25 R.C.L. 1054, Sec. 280, "Statutes"; 59 C.J. 1038, Sec. 616, "Statutes"; State v. Boswell, 4 N.E. 675, 104 Ind. 541, 545. (14) A statute will not be given a construction at variance with established rules of law unless the intention to override such rules is clearly manifested. 59 C.J. 1039, Sec. 616, "Statutes"; State v. Malone, 192 S.W.2d 68, 70; Vining v. Probst, 186 S.W.2d 611.
On August 7, 1937, the Probate Court of Warren County adjudged Alice Hutcherson to be a person of unsound mind, and appointed her husband, L.M. Hutcherson, to be her guardian and the curator of her estate. On the same day, the said probate court entered an order authorizing said guardian to commit his said ward to State Hospital No. 1, at Fulton, Missouri, and directed that $30 per month be paid out of the ward's estate to said hospital for the maintenance of said ward at said institution. On August 9, 1937, Alice Hutcherson was admitted to said hospital, and she has at all times since remained there as a patient. On August 9, 1937, L.M. Hutcherson filed an inventory in the estate of his ward showing assets of the value of $5,086.60, consisting of real estate, United States Government bonds, cash, and personal and household effects.
Thereafter, L.M. Hutcherson, as guardian, filed seven annual settlements of his guardianship accounts, and in each settlement he took credit for the amounts paid by him to the state hospital for the support and maintenance of his ward during the period covered by such settlements. Each of these settlements was approved by the probate court.
On February 13, 1945, L.M. Hutcherson died, and Beulah M. Krieg, his daughter, was appointed administratrix of his estate. On March 26, 1945, Cora Mueller was appointed guardian of the person and estate of Alice Hutcherson. On April 3, 1945, Beulah M. Krieg, as administratrix of the Estate of L.M. Hutcherson, filed a final settlement of the accounts of L.M. Hutcherson in the guardianship estate of Alice Hutcherson, in which settlement she took credit for two items of $90 each paid by L.M. Hutcherson, as guardian, out of the estate of his ward, for her maintenance and support at the state hospital. Thereafter, Cora Mueller, guardian of Alice Hutcherson, filed exceptions to each of the seven annual settlements made by L.M. Hutcherson in said guardianship estate, and filed exceptions to the final settlement in said estate filed by Beulah M. Krieg, administratrix of the estate of L.M. Hutcherson. These exceptions were directed only to the items of credit taken for the amounts paid for the support of the ward at the state hospital. No question was raised by the exceptor as to the amounts stated in said settlement being correct or as to such payments having been made. The final settlement of the administratrix showed a balance due the guardianship estate of Alice Hutcherson of $4,361.67. The probate court, after a hearing, denied the exceptions. Exceptor then appealed to the circuit court, where the exceptions were sustained, and judgment entered surcharging the estate of L.M. Hutcherson with $2,703.35 and interest at 6%. In its findings, the court stated that:
"The Court finds that at all times while Alice Hutcherson was so confined in the State Hospital at Fulton, L.M. Hutcherson was possessed of property sufficient to pay all charges made by said hospital and mentioned in the foregoing settlements; that at all such times it was the primary duty of L.M. Hutcherson, as husband of Alice Hutcherson, to pay out of his own property the said mentioned charges, and that by paying the same out of her estate, he was paying his own obligations, and he was not entitled to charge said payments to the estate of Alice Hutcherson."
Appellant, in seeking a reversal of the judgment of the trial court, contends that Section 501, Revised Statutes of Missouri 1939, Missouri Revised Statutes Annotated, Section 501, under which the payments by the guardian were made, placed upon the insane wife the primary obligation of paying for the necessaries furnished by the state hospital, and that the common law duty of the husband in that respect is by the statute made a secondary liability.
If this is a proper construction of the statute, then, of course, the court erred in surcharging the estate of L.M. Hutcherson with the amounts paid, for if the husband has been relieved of his primary common law liability in such a case, the law will not imply a promise by him to repay the amount expended by the wife. If the statute does not relieve him of this common law duty, a right of reimbursement would exist in favor of the wife. [Manufacturers Trust Co. v. Gray, 278 N.Y. 380, 16 N.E.2d 373, 117 A.L.R. 1176; DeBrauwere v. DeBrauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A. (N.S.) 508; Kosanke v. Kosanke, 137 Minn. 115, 162 N.W. 1060; Pearson v. Pearson, 104 Misc. 675, 173 N.Y.S. 563; Weiserbs v. Weiserbs, 169 N.Y.S. 111; Sodowsky v. Sodowsky, 51 Okla. 689, 152 P. 390; In re: Fox' Will, 293 N.Y.S. 468, 250 A.D. 31.]
In such a case, if the husband is solvent and able to pay, the amount of the debt should be considered as so much money in his hands, as guardian, to be accounted for in his settlement. If he does not account, then the court should surcharge his settlement with the amount. [In re: Fox' Will, 293 N.Y.S. 468, 250 A.D. 31 .]
In construing a statute, it is proper and often useful to consider the state of the law existing at the time of its enactment, as casting light on the intended scope of the change made by it. [Gabriel v. Mullen, 111 Mo. 119, l.c. 123, 19 S.W. 1099.] At common law the public authorities could not recover from a lunatic or his estate expenses incurred on his account. "Insane Persons," [32 C.J. Sec. 374, p. 687; 44 C.J.S. Sec. 75, p. 177.] It would seem, therefore, that the purpose of the statute was not to relieve the husband of any primary liability for the support of his wife, but to make immediately available a fund for the support of the ward, from which the state could be paid for services rendered to one not indigent, but able to pay for such services. It did not attempt to fix the liability as between husband and wife. Other statutes imposing liability on the wife for necessaries furnished have been construed as not relieving the husband of his primary common law duty. Kosankes Estate, Minn., 162 N.W. 1060, is a case in point. In that case plaintiff filed a claim against the estate of her deceased husband for money paid out by her for household necessaries during the time she and her husband were living together. A statute of the state made husband and wife "jointly and severally liable for all necessary household articles and supplies furnished to and used by the family." It was contended that under this statute plaintiff, when she paid for necessaries, was merely paying her own debt, and was not entitled to reimbursement. The court held otherwise, saying:
"Although this statute makes both husband and wife liable to third parties for such necessaries, it does not relieve the husband from the duty to support the family which has rested upon him from time immemorial, and as between husband and wife, the duty to furnish such necessaries still rests upon the husband."
Notwithstanding statutory provisions enabling a married woman to enter into contracts and hold property in her own right, and making her separate property subject to execution for any debt or liability of her husband created for necessaries for the wife or family, the husband remains primarily liable for such necessaries. [Pfenninger v. Brevard (Mo. App.), 129 S.W.2d 924; Reynolds v. Rice, 224 Mo. App. 972, 27 S.W.2d 1059; Kent v. Knight, 231 Mo. App. 235, 98 S.W.2d 318.] The common law liability of the husband in this respect is not superseded by such statutes enlarging the liability of the wife.
In this case the trial court found that the guardian was at all times able to pay for his wife's support at the state hospital. There was ample evidence to support this finding. Such being the case, the court properly surcharged his settlement with the amounts expended from the wife's separate estate.
The judgment appealed from is affirmed. Hughes, P.J., and McCullen, J., concur.