Opinion by
This appeal grows out of two claims presented at the audit of the account of the administratrix of the estate of John P. Boles, deceased, one, by the Commonwealth, for $1,263.14, and the other, by the City of Philadelphia, for $1,565, for maintenance of decedent’s son, John P. Boles, Jr., at the Philadelphia Hospital for Mental Diseases. The son was an adult indigent insane person, maintained in the hospital during the period for which *181 the claims are made. He had no property, until, at his father’s death, he became entitled under the intestаte laws to one-sixth of his father’s estate. It is conceded that both claims must be paid.
Thе learned court below was of opinion that the claims were payable as debts due by decedent, and deducted the total from the balance shown by the account for distribution, leaving a balance of $10,090.75, which was awarded in equal sixth parts to the decedent’s children, one part being awarded to the guardian of the lunatic. At the audit, it was claimed that “if the estate of the father is liable, it is entitled to reimbursement from his son’s distributive share.” Should reimbursement have been awarded?
At common law a lunatic was liable in quasi-contracts for support: Smith’s Case,
Section 2 рrovides for reports to the attorney general concerning the estate of persons so maintained.
Section 3 provides, “The husband, wife, father, mother, child, or children of any person who is an inmate of any asylum, hospital, home, or other institution, maintained in whоle or in part by the Commonwealth of Pennsylvania, and who is legally able so to do, shall be *182 liable to pay for tbe maintenance of any such person, as hereinafter рrovided.”
While the obligation declared in section 1 remains, as at common law, a рrimary obligation of the person cared for, section 3 imposes on others a secondary obligation to contribute, if “legally able so to do,” a phrase perhаps carried into the statute from earlier legislation (section 28, Act of June 13, 1836, P. L. 539), where thе duty to contribute was qualified by the words “being of sufficient ability” — a condition which required an adjudiсation of that fact by the Quarter Sessions: Wertz v. Blair Co.,
The liability imposed on a father by section 3 is in derogation of the common law and must, therefore, be strictly construed in the light of the presumption that no change in the cоmmon law was intended beyond what is expressly stated: Gratz v. Ins. Co. of North America,
As no objection is made to the claim presented on behalf of the city, we have referred only to the Act of 1915, P. L. 661, сonsidered below and in the briefs.
The record is remitted for modification, costs to be paid out of the fund for distribution.