Opinion
No. 33851.
October 30, 1939.
1. EXECUTORS AND ADMINISTRATORS.
Under Louisiana statute providing that children are bound to maintain their father and mother and other ascendants who are in "need," daughter-in-law of deceased Louisiana resident was not precluded from recovery on claim against estate for board and lodging, laundry, etc., furnished Louisiana resident on ground that husband had duty to support decedent where decedent owned property sufficient for her support and was not in any legal sense in "need" (Rev. Civ. Code La., art. 229).
2. PAUPERS.
The term "need" within Louisiana statute providing that children are bound to maintain their father and mother and other ascendants who are in "need" carries meaning that persons in "need" are unable to support themselves and have not sufficient property for that purpose (Rev. Civ. Code La., art. 229).
3. PAUPERS.
A Louisiana statute relating to duty of children to maintain ascendants who are in "need" did not control on question of liability of estate of decedent who was resident of Louisiana to daughter-in-law on claim for board, lodging, laundry, etc., furnished decedent where decedent had home and farm in Mississippi, since residence in Louisiana did not necessarily deprive decedent of homestead rights in Mississippi (Rev. Civ. Code La., art. 229).
4. PAUPERS.
The Mississippi statute providing that father, grandfather, mother, grandmother, brothers, and sisters and descendants of any pauper not able to work shall relieve and maintain such pauper limits duty imposed to cases of paupers and the common-law obligation is not changed further than needs of pauper parent or pauper child require for comfortable living and does not apply to those who are able to support themselves, either by labor or by having sufficient property (Code 1930, sec. 5706).
5. PAUPERS.
At common-law, children have no obligation to support parents who are able to support themselves.
6. EXECUTORS AND ADMINISTRATORS.
The duty, if any, of son to furnish board, lodging and laundry to his mother could not preclude son's wife from recovering against mother's estate for such items furnished to mother under contract with mother in absence of showing that either mother or son's wife was incompetent to contract, since there was no obligation on son's wife to support mother (Code 1930, sec. 5706).
7. LIMITATION OF ACTIONS.
The statute of limitations will not commence to run against relative's claim against estate for support of decedent who had been received into relative's home under obligation to support decedent indefinitely until the death of the decedent.
8. LIMITATION OF ACTIONS.
A claim against estate of decedent for board, lodging, laundry, etc., furnished under contract which had no fixed duration was not barred as to items furnished more than three years prior to death of decedent, since statute of limitations did not commence to run until death of decedent.
9. EXECUTORS AND ADMINISTRATORS.
A daughter-in-law of decedent was entitled to allowance of claim against estate for board, lodging and laundry furnished decedent for seven-year period prior to decedent's death under contract by which decedent agreed to pay reasonable amount for her support and care for indefinite period.
10. EXECUTORS AND ADMINISTRATORS.
A claim of daughter-in-law against estate of decedent for items charged in account, for drug bill, expenses, remaking of feather bed, etc., was properly disallowed in absence of showing that such items had been charged to daughter-in-law or that she had prior to their payment incurred a personal liability therefor or that she was charged therewith.
11. EXECUTORS AND ADMINISTRATORS.
Items of claim against estate incurred by daughter-in-law of decedent in connection with hospital bill and funeral expenses were chargeable against estate and not required to be probated since incurred in connection with burial of decedent for which estate was liable.
12. EXECUTORS AND ADMINISTRATORS.
Irregularities, if any, by administrator in paying some of items of claim before being probated did not affect right of claimant to allowance of claim in proceeding which did not involve liability on part of administrator for misconduct.
APPEAL from the chancery court of Issaquena county; HON. J.L. WILLIAMS, Chancellor.
Dabney Dabney and T.J. Lawrence, both of Vicksburg, for appellant.
The decree of the court is against the overwhelming weight of the evidence. The principal items of the account were for board and lodging. The first ground of objection is that a certain part of these were barred by the Statute of Limitations. In the case of McCully, et al. v. McCully, 168 So. 608, 175 Miss. 876, the Statute of Limitations was pleaded, but Judge Smith in denying this plea said: "In December, 1934, Fannie Cooper died intestate, and some time thereafter F.D. McCully qualified as administrator of her estate. An account probated against her estate by the appellants was contested by persons interested therein, and the account was disallowed. . . . The probated account sets forth a monthly charge of $30.00 a month for board, nursing, clothing, care and attention (which the evidence discloses is reasonable), and the taxes paid on the land, and was credited with the revenue derived from the land. . . . One of the objections to the probated account is that part of it is barred by the statute of limitations. . . . A portion of the account would be barred by limitation if the period therefor began on each item as and when it was supplied. But such is not the case. The obligation assumed by the appellants when they received Fannie Cooper into their home was to continuously support her, with no time fixed for the termination thereof or for payment therefor. The statute of limitations, therefore, did not begin to run until the termination of that implied contract, which, here, was at her death. Gaulden v. Ramsey, 85 So. 109, 123 Miss. 1; 37 C.J. 853." The claim had been denied and the claimant had appealed, and the Supreme Court reversed and rendered a decree approving the account as probated, and remanded the cause.
Gaulden v. Ramsey, 85 So. 109, 123 Miss. 1.
It is apparent from the foregoing decisions that the account was not barred in any of its items. But, assuming for the purpose of argument that some of the earlier items were barred, then by the application of the payments to the earliest items a large part of this would be taken care of. So under the law appellant was entitled to a decree approving and allowing her claim, and for his failure to do so, we submit this cause should be reversed and said claim be approved.
Tarver v. Lindsey, 137 So. 93, 161 Miss. 375. Clements Clements, of Rolling Fork, for appellees.
It is our contention that the decree of the lower court was neither contrary to the law nor the evidence; the court had the witness before it, saw him testify and heard him on direct and cross-examination, had all the exhibits and all the documentary evidence and determined, in our judgment, as much on the evidence as well as the law that the appellant was not entitled to recover.
In addition to this we call the court's attention to the fact that this contract was made in Louisiana, and that in the State of Louisiana they have the following statute:
"Children are bound to maintain their father and mother and other ascendants who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal."
Civil Code of the State of Louisiana, Revision of 1870, Article 229, old article 245, Code Napoleon, 205-207.
Under that statute E.T. Lee and his wife, as we see it, this being E.T. Lee's mother, he was bound to maintain her.
We have no such statute in Mississippi, as far as we have been able to find, but it is a filial duty owed by this son to his mother, and we do not think that the court will permit him to camouflage this claim in his wife's name, because the home might have been at that time in his wife's name as the evidence showed it had been changed and put in her name to avoid debts, but at the same time it was still the home of E.T. Lee, the son of deceased, for he lived there as he testified.
In the case at bar they claim and attempted to prove that an agreement or contract with the deceased was made to pay at the rate of $30.00 per month, and on the face of the account as probated it showed that some payments were made, but the amount of payments made although applied to the oldest items, would not relieve a large portion of this account from the prescription. There is no agreement as in the majority of cases cited by counsel for payment after the death out of the estate, or when she died that they would be compensated, but it was a straight out agreement, according to appellant's husband, made back in 1929 to pay $30 a month therefor.
It is our contention that if the agreement was made as claimed that those items on which the statute had been put in motion at the time of Mrs. Lee's death would continue to run until the account had been probated, which was not until December, 1936.
It is further our contention that this is not a continuing contract, but is a monthly contract to be terminated at any time that Mrs. Lee might have seen fit and proper and was not one contingent upon her death.
Loviza v. Lynch, 115 Miss. 694.
All items on the account for doctor's bills, medicine, etc., prior to Mrs. Lee's death should have been separately probated, and if they were not they were not proper charges against this estate.
Gaulden v. Ramsey, 123 Miss. 1; Bell v. Oates, 97 Miss. 793.
This is an appeal from the Chancery Court of Issaquena County from a contested claim probated by the appellant, Mrs. Annie G. Lee, against the estate of Mrs. M.S. Lee, deceased, of which estate, E.T. Lee, the husband of the appellant, is the administrator.
The account represented a claim for board and lodging, laundry, etc., for Mrs. M.S. Lee, deceased, from the year 1929 until the year 1936. (During which latter year Mrs. M.S. Lee died). The claim was contested on the ground that some of the items were not properly itemized on the probated account; that there was no liability on the part of the estate for the board, lodging and laundry of Mrs. M.S. Lee, deceased, during that period, on the theory that there was no liability against the estate for such board, lodging, and laundry, and that items for such support from 1929 until 1933 were barred by the Statute of Limitations of three years, including all items more than three years prior to the death of Mrs. M.S. Lee, deceased.
E.T. Lee, the administrator, prior to the death of Mrs. M.S. Lee, his mother, had managed a farm in Issaquena County, Mississippi, belonging to his mother, and prior to 1929 had lived principally on that place, in the home with his mother. Mrs. Annie G. Lee, the wife of E.T. Lee, had a home in Winnsboro, Louisiana, and prior to the time Mrs. M.S. Lee moved to her home, she had a suit of separate property under a Louisiana proceeding, in which the home became her separate property and not subject to the demands or debts of her husband, E.T. Lee. About the year 1929, Mrs. M.S. Lee became sick or in ill health, and it was thought advisable for her to move into the home of the appellant, Mrs. Annie G. Lee, for proper care, attention, etc. E.T. Lee, the administrator, was the only witness who testified in regard to the matter, and he testified that Mrs. M.S. Lee, his mother, was unwilling to move into the home of Mrs. Annie G. Lee without paying a reasonable amount for her support and care, and that it was agreed that for board, lodging, laundry, etc., she would pay at the rate of $30 per month, but that there was no time for the durance of the contract and for its termination. The items with reference to board, laundry, etc., were made out for various periods of time. Items rendered among others similar, are as follows: Board, lodging, laundry, etc., 9-11-29 to 9-30-29, $19.34. Board, lodging, laundry, etc., October, November, December, 1929, $90, and similar items all through the period, charges being grouped by months, varying in numbers in different charges of the account, but running at the rate of $30 per month. On these probated accounts, in support of which the usual affidavit was made, there appeared various items of credit for different periods amounting to $911.30, and charges for the various items, including board, lodging and laundry, amounted to $2,422.64. Among the items charged in the account, other than the board, lodging and laundry, were the following: Drug bill to Harper, $49.55. Drug bill, cash (Monroe) $5.50. Rubber sheets, Street's Sanitarium, $4. Wash, November 27th to March 15th, 15 weeks at 50 cents per week, $7.50. Expense of trip of Mrs. Godwin's $4.25. Doctor bills, C.E. McConnell, $30. One feather bed remade, $4. One mattress, $4. Four pillows reticked, $1. And, then follows accounts for digging the grave, $5; casket and services of the Winnsboro Funeral Home, $67.50 and July 15, 1936, by a cash credit of $75; November 20, 1936, by cash credit of $53; December 1, 1936, credit by cash, $31.87; and December 24, 1936, by cash, $33.43.
It appeared in the evidence that E.T. Lee, in operating or managing the place of Mrs. M.S. Lee, collected certain monies and deposited them in the bank at Winnsboro in an account carried in the name of Mrs. Annie G. Lee, but which account E.T. Lee testified was a joint account, and both he and Mrs. Annie G. Lee could check against the account, but that all monies placed in the account from the proceeds of the place of his mother were checked out by him, and his wife received no part of such funds deposited in that account. One check for $132, made payable to Mrs. M.S. Lee, for a right of way for an oil company was collected by E.T. Lee, which check was endorsed by E.T. Lee for her and for himself and collected. Another account for damages, occasioned by taking a right of way over property of Mrs. M.S. Lee, was made payable to Mrs. M.S. Lee and deposited in the account of Mrs. Annie G. Lee, and, as was testified to by E.T. Lee, was checked out by him and no part thereof was received by Mrs. Annie G. Lee.
The chancellor disallowed the probated claim of Mrs. Annie G. Lee, and this appeal is prosecuted from that decision.
It is contended by the appellees William A. Lee, Eugene M. Lee and Olivia Lee, who are grandchildren of the deceased (being children of the son of the deceased, who predeceased his mother), that the duty rested upon E.T. Lee to support his mother, and for that reason the claim of Mrs. Annie G. Lee could not be allowed. The statute referred to in the brief as the basis of this contention is the Civil Code of the State of Louisiana, Revision of 1870, Article 229, old Article 245, Code of Napoleon, 205-207, which reads: "Children are bound to maintain their father and mother and other ascendants, who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal". This section does not, in our opinion, sustain the contention, for it is beyond dispute that Mrs. M.S. Lee owned property sufficient for her support, and that she was not in any legal sense in need. That term, as we believe, carries the meaning that persons in need are unable to support themselves and have not sufficient property for that purpose. It is not certain that the Louisiana Statute would control, because Mrs. M.S. Lee had a home and farm in Issaquena County, Mississippi, and her residence in Louisiana would not necessarily deprive her of her homestead rights in Mississippi under the circumstances involved in this record.
The Statute of Mississippi in regard to the duties of parents and children toward each other, in the way of support, in the case of need, is Section 5706, Code of 1930, which reads as follows: "The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal shall forfeit and pay the county the sum of ten dollars per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any person who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month; and if any such relative be a non-resident he may be proceeded against by attachment, as in cases of attachment against debtors". It is clear from this that the duty is limited to cases of paupers and the common law obligation is not changed any further than the needs of the pauper parent or pauper child require for comfortable living, and does not apply to those who are able to support themselves, either by labor or by having sufficient property for such support.
At common law, there is no obligation for such support. It is stated in one of the briefs that the chancellor entertained the view that there was no liability for the items for board, lodging and laundry, because it was the duty of E.T. Lee, the son, to furnish his mother these things, and that, as she lived in the home of his wife, the claim could not be allowed. There is nothing to show that either Mrs. M.S. Lee or Mrs. Annie G. Lee were incompetent to contract, and certainly there was no obligation on Mrs. Annie G. Lee to support her husband's mother. Even if the obligation existed upon E.T. Lee to support his mother, under the facts of this record, that would not prevent his mother and his wife from making the contract such as was here made.
In the case of McCully et al. v. McCully, 175 Miss. 876, 168 So. 608, it was held that where an insane person had an estate, that such estate of the insane person is obligated to pay for the necessities furnished such person in good faith under circumstances justifying their being furnished. That the wants of an insane person which are personal to body and mind are "necessaries" within the rule requiring insane person or his estate to pay for necessaries furnished him in good faith. That where relatives receive an insane person into their home, obligate themselves to support him indefinitely, without fixing time for payment therefor, the Statute of Limitations would not commence to run against the relative's claim against the estate until death of such person. That relatives who received aged insane aunt into their home, and thereafter supported and cared for the aunt, were entitled to reimbursement from the aunt's estate, upon her death, for taxes paid by relatives on the aunt's property, as well as for board, nursing, clothing, care, and attention.
A similar holding was Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109. In each of these cases it was held that the Statute of Limitations did not begin to run until the death of the person supported, because there was no definite time for the termination of the contract and the obligation was continuing.
These cases control the case at bar upon the question of support, and upon the Statute of Limitations as applied to such claims; and we think the chancellor was in error in disallowing the items for board, lodging, laundry, etc., embraced in the contract. There is no dispute in the evidence that the appellant made the contract testified to by E.T. Lee, her husband, and that she carried out her part of the contract, and consequently she was entitled to have her claim for board, lodging and laundry through the period allowed.
The other items in the account are not shown to have been charged to Mrs. Annie G. Lee, or that she had, prior to their payment, incurred a personal liability therefor, or that she was charged therewith; and, consequently, the law requires those items to be itemized, and the account therefor probated in an appropriate manner. The decree of the chancellor disallowing these items is affirmed. The items incurred in connection with the hospital bill, and the funeral home, etc., were chargeable against the estate and would not have to be probated, as they were incurred in connection with the burial of the deceased, for which her estate was liable.
The record reflects possible irregularities by the administrator in paying some of these items before being probated, but this case does not involve any liability on the part of the administrator for any misconduct. The claim of the appellant was probated within the time provided by law, and the estate should bear expenses of the items indicated in this opinion.
For the errors indicated, the judgment will be reversed and the cause remanded.
Reversed and remanded.