Opinion
No. 33552
Decided March 17, 1954.
Aid for the aged — Applicant's estate obligated to repay amount received — Section 1359-7, General Code — Amount received by applicant's spouse in nature of suretyship obligation — Applicant not obligated to pay where spouse's estate sufficient — Wife contributing to family use — Not entitled to reimbursement from husband or estate, when.
1. Under the provisions of Section 1359-7, General Code (Section 5105.13, Revised Code), a married person in applying to the state for aid for the aged thereby obligates his or her estate, upon death, to repay the state, not only the amount of such aid received by him or her but also the amount of aid, if any, received by his or her spouse, and the statutory obligation to repay the aid furnished to the spouse is in the nature of a suretyship obligation without consideration moving directly to such married person, but, where the estate of the spouse is sufficient to repay the aid so furnished to such spouse, the married person or his or her estate is entitled to exoneration as to such aid.
2. A wife is not entitled to reimbursement from her husband or his estate for money or property contributed by her to family use, enjoyment, or consumption, for her assets applied with her consent to the maintenance of the family, or for expenditures voluntarily made by her, in the absence of an agreement for reimbursement.
APPEAL from the Court of Appeals for Washington county.
George H. Wehrs and Laura J. Wehrs lived together as husband and wife for many years in Washington county, Ohio. There were no children born of such marriage. George Wehrs died on January 9, 1951, and his wife died on March 22, 1951.
During the period from December 1, 1945, through November 30, 1948, there was furnished to the husband by the Division of Aid for the Aged, State of Ohio, upon his application, the total sum of $1,008.40 as necessary old age assistance.
During the period from December 1, 1945, through December 31, 1950, there was furnished to the wife by the division, upon her sole application, the total sum of $2,585.46 as necessary old age assistance.
Pursuant to the provisions of Section 1359-7, General Code (Section 5105.13, Revised Code), imposing liability, upon death, on the estate of each applicant for old age benefits furnished to him as well as to his spouse, the state of Ohio perfected claims against both estates for the assistance granted to both applicants, in the total sum of $3,593.86.
Hausser, as executor of the estate of the wife, brought this action for a declaratory judgment against the defendant, as executor of the husband's estate, to determine which estate is primarily and ultimately liable for the claims of the state.
Each of the estates has sufficient funds to reimburse the state of Ohio for this assistance to each respective applicant. The plaintiff claims that the husband's estate, having sufficient funds, is liable as a matter of course for the aid furnished to the husband on his own application, and is liable under Section 7997, General Code (Section 3103.03, Revised Code), as well as under the common law, for the aid furnished to the wife, on the theory that it was the husband's duty to furnish support to the wife and to exonerate her estate for such aid given in lieu of the husband's furnishing of support.
The defendant alleges in his answer that the claim of the state for assistance given to the husband has been allowed and will be paid by him, that the assistance for necessities advanced by the state to the wife in the sum of $2,585.46 was contracted independently by the wife, and that her estate is primarily and ultimately liable therefor.
Upon trial the manager of the Marietta office of the Division of Aid for the Aged testified that state assistance was granted to Mrs. Wehrs only after departmental investigation revealed that her husband was unable to support her with minimum needs, and only after she signed the required application supplied by the division.
The Court of Common Pleas denied the prayer of plaintiff's petition, holding that it was the primary and ultimate obligation of the estate of the wife to reimburse the state for aid furnished to her, and that the plaintiff, as her executor, had no claim for reimbursement from the estate of her husband.
The Court of Appeals affirmed the judgment of the Court of Common Pleas.
The cause is now in this court on appeal by reason of the allowance of a motion to certify the record.
Messrs. Porter, Stanley, Treffinger Platt, Mr. Robert L. Hausser and Mr. Bruce G. Lynn, for appellant.
Messrs. Summers Haupt, for appellee.
The question at issue may be stated as follows:
As between the separate estates of a husband and wife, both having died after October 1, 1947, while residents of the state of Ohio, is the husband's estate ultimately liable to repay moneys advanced by the state of Ohio to the wife as aid for the aged for her necessary living expenses during the marriage and upon her own application?
The pertinent part of Section 1359-7, General Code, provides:
"Upon the death of a person the total amount of aid paid to said person or to his spouse or either or both of them under this act shall be a preferred claim against the estate of such deceased person * * *." (Italics supplied.)
Section 7997, General Code, is as follows:
"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." (Italics supplied.)
On December 1, 1945, George Wehrs and his wife were unable to support themselves or each other. Simultaneously, they each individually made application for aid and under the statute thereby pledged their separate estates for the amount of aid received by each of them. Clearly, the statutory obligation of the estate of the husband under the statute to reimburse the state for aid paid to his wife was in the nature of a secondary or suretyship liability, the primary liability for the aid to the wife resting upon her estate. Since her estate is sufficient to repay the aid furnished to her, his estate is relieved of that obligation. This must necessarily be so since the husband did not receive any direct consideration for his statutory or contractual obligation to repay the state for aid furnished to his wife. The obligation of his estate, so assumed, was in the nature of a suretyship with reference to the primary obligation of his wife's estate, and being such his estate was entitled to exoneration.
The liability of the husband's estate, if any, for the aid furnished to the wife must be predicated upon the general statutory provisions found in Section 7997, General Code. While the husband and wife were living together, the wife entered into her personal contract with the division. The husband was then unable to support himself and his wife. Under Sections 7995 and 7997, General Code, it became the wife's duty to support herself and her husband, if necessary, and, by such agreement with the division, she contracted at least as to her own necessities.
When is a wife under the general statute entitled to reimbursement from her husband for money which she has spent on her own account for necessaries for herself and perhaps for her husband while they were living together in the marriage relation?
A leading case on this subject is that of Spalding v. Spalding, 361 Ill. 387, 198 N.E. 136, 101 A.L.R., 433, where the court said:
"We are of the opinion that the weight of authority supports the principle that for payments voluntarily made by the wife for family expense during the time the husband and wife are living together, in the absence of proof of a specific agreement for repayment by the husband, the law does not create an indebtedness of the husband to the wife."
In 26 American Jurisprudence, 941, Section 342, the rule is stated as follows:
"A wife is not entitled to reimbursement from the husband or his estate for property contributed by her to family use, enjoyment, or consumption, for her income applied with her consent to the maintenance of the family, or for expenditures voluntarily made by her, in the absence of an agreement for reimbursement, at least where they are living together." Citing Manufacturers Trust Co. v. Gray, 278 N.Y. 380, 16 N.E.2d 373, 117 A.L.R., 1176; Spalding v. Spalding, supra, and annotation. To the same effect is 21 Ohio Jurisprudence, 542, Section 252.
This court is of the opinion that this rule must be applied to the facts of this case.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
MIDDLETON, J., concurs in paragraph two of the syllabus and in the judgment.
TAFT, J., concurs in the judgment.