84 P.2d 1024 | Wash. | 1938
In the course of a guardianship proceeding, the former guardian, who is the husband, of an incompetent person filed his final account, incorporating therein a petition for a monthly allowance to himself out of his wife's estate. The matter came on for hearing before the court and was resisted by the substituted, and present, guardian. The court, after taking evidence, made its findings and entered a decree settling the account and directing payment of a monthly allowance to the husband out of the estate. The present guardian has appealed.
A.C. DeNisson, respondent herein, and Fern P. DeNisson, the incompetent, have been married to each other three times. The first marriage took place in 1925, the last in 1936. During the period between those years, they were twice divorced. At the time of the hearing of this case in the court below, Mr. DeNisson was eighty-eight years of age, Mrs. DeNisson was forty-seven.
Most, if not all, of the property involved in the guardianship proceeding was at one time community property which had been earned by the husband. This property was, however, awarded, in the first divorce action, to the wife, and ever since that time it has been her separate estate. The bulk of the property consists of real estate, the value of which, according *267 to the appraisement, is $8,300. It has produced practically no income.
On August 16, 1937, Mrs. DeNisson having been found to be mentally incompetent, Mr. DeNisson was appointed guardian of her person and estate. He duly qualified and, subsequently, served in that capacity until October 27, 1937, when he was removed, and the National Bank of Commerce was appointed in his stead. In the meantime, on September 4, 1937, Mrs. DeNisson was adjudged insane and was committed to the Northern State Hospital. During the period of her incompetency, and until her commitment, Mrs. DeNisson was in the custody of her husband, who gave her every required care and attention.
Mr. DeNisson began the administration of his wife's estate with the sum of $2.46 cash. With leave of court, he negotiated a loan, from which he realized $147. He collected two monthly installments, aggregating $39.50, upon a real estate contract belonging to the estate. His total receipts amounted to $188.96. He expended for the care, support, and maintenance of his ward and her property the sum of $158.85. He expended upon one of the houses of the ward personal labor, for which he asked to be reimbursed in the sum of $261. The court approved the money expenditures and allowed Mr. DeNisson $150 for his personal labor, $100 as guardian fee, and $87.18 for attorney's fee and costs.
The evidence showed that, at the time of the commencement of the guardianship proceeding, Mr. DeNisson himself was penniless and destitute; wherefore, in his final petition, he asked the court to allow him, out of the estate, the sum of fifty dollars a month for his living expenses. At the hearing, it appeared that he had, in the meantime, been granted state old-age assistance in the sum of twenty dollars a month. *268 In its decree, the court ordered that he be paid, out of the estate, the sum of thirty dollars per month, beginning January 1, 1938.
[1] Upon this appeal, appellant takes the position that, in any event, the decree is not binding on the ward because no guardian ad litem was appointed to represent her at the final hearing.
Rem. Rev. Stat., § 188 [P.C. § 8269], provides:
"When an insane person is a party to an action in the superior courts he shall appear by guardian, or if he has no guardian, or in the opinion of the court the guardian is an improper person, the court will appoint one to act as guardian ad litem. . . ."
The appellant bank, which was at the time of the hearing the qualified and acting guardian, appeared, with its attorney, on behalf of the ward and throughout the proceeding vigorously resisted respondent's petition. A guardian ad litem could have done nothing more.
Appellant relies upon the case of Mathieu v. United StatesFidelity Guaranty Co.,
The situation in this case is quite different. At the hearing in question, the ward was actually represented by a guardian who, in resisting respondent's petition, was the active champion of the ward and a jealous protector of her interests. The court had complete jurisdiction of the subject-matter, and all the parties were before it. The decree is, therefore, binding on the ward, unless it is erroneous upon some other ground.
The most important, as well as the most serious, question in the case is, as asserted by appellant, whether the court erred in awarding respondent husband a monthly allowance out of the insane wife's estate.
[2] It appears to be a generally accepted principle that a court having the power of our probate court may, in a proper proceeding, allow a wife support and maintenance out of the estate of her incompetent or insane husband. In re SenateResolution,
Whether, in this state, a similar provision may be made for the husband out of the estate of his incompetent or insane wife depends, primarily, upon the meaning of the term "expenses of the family," as used *270 in Rem. Rev. Stat., § 6906 [P.C. § 1431], which reads as follows:
"The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately."
We have had occasion, a number of times, to construe or refer to this statute.
In Russell v. Graumann,
"That ordinary medical aid and advice for the wife create family expenses has been repeatedly held. 15 Am. Eng. Ency. Law (2d ed.), 877, and cases cited. The husband is a part of the ordinary family, and under a statute providing in general terms for liability for `expenses of the family,' as does our statute quoted above, we see no reason why medical and hospital services rendered to a husband are not as fully comprehended in the statute as are those rendered to a wife."
In Butterworth Sons v. Teale,
In Haddad v. Chapin,
In Roberts v. Warness,
It thus appears that the term "expenses of the family" includes not only merchandise used by the family as a whole, but also certain expenses, such as medical aid, hospital services, and burial attendance, incurred or supplied for the immediate or personal benefit of but one of the spouses, and that in either event the other spouse may be held separately liable therefor.
The "family" may, as in the case at bar, be without children or other dependents, and consist simply of husband and wife. But it is nonetheless a family. We have held that a surviving widow constitutes a family within the meaning of Rem. Rev. Stat., § 1476 [P.C. § 9896], which provides for allowances out of a decedent's estate "for the maintenance of the family." In reHooper's Estate,
We have, in this case, however, one peculiar fact, and out of that fact has grown this controversy. Although the husband and wife are both alive, they are not at present living together, owing to the unfortunate mental condition of the wife. But it is not always necessary, in law, that, in order to constitute a family, the members thereof reside together under one roof. *272
In Russell v. Graumann,
"The evidence discloses that for about three years the deceased had been residing in Spokane, where he pursued his occupation as a painter. During at least a part of that time the respondent [wife] was not in Spokane, but it is not established by the evidence, as we view it, that she was not at any time in Spokane with her husband. During his last illness, and at the time of his death, she was in the state of Pennsylvania. But, assuming that respondent may not at any time have been with her husband in the city of Spokane, it does not follow from that fact alone that the family relationship had in a legal sense been severed. It is not necessary that the husband and wife shall at all times reside together under the same roof, in order that the legal status of the family may be preserved."
The opinion then points out the circumstances that may constitute merely a continued absence, as distinguished from a severance of the marriage relationship.
In In re Hooper's Estate,
The same thought has been expressed and the same conclusion adopted by the courts generally in construing the word "family," as used in exemption statutes, and also as used, in one case, in a testamentary trust. Baum v. Turner, 25 Ky. Law 600, 76 S.W. 129; Stephens v. Stephens,
Appellant relies upon the case of Vose v. Myott,
However, in that very case it appears, from the opinion, that the husband had left the wife in contemplation *274 of a separation and, except for a brief visit, had lived separate and apart from her ever since; further, that, although the husband was suffering from rheumatism at the time of his departure, there was nothing to indicate any reasonable necessity of the journey for the purpose of medical treatment or that such was in fact the motive that led to his going. In point of fact, that case very well illustrates the distinction that we have hereinbefore made between enforced absence and intentional separation. In any event, we consider dire and immediate necessity for sustenance as much an extraordinary circumstance as an accident or a protracted illness. We do not think that the Iowa case, when carefully considered, militates at all against our position.
From our analysis of the cases, and upon what we consider sound reasoning, we conclude that a wife's estate is separately liable for the expense incurred for the necessary and actual maintenance and support of an aged and indigent husband, provided that the marital relationship has not been severed and there has been no intentional separation.
[3] The question, then, arises whether the court had the power to anticipate an accrual or accumulation of debts incurred for the support and maintenance of respondent, and directly to make an allowance for the same purpose. To state the question, it seems to us, is to answer it. The court could, certainly, have made an allowance out of the wife's estate for the purpose of paying an incurred expense which, under Rem. Rev. Stat., § 6906, would have been chargeable upon the separate property of the wife. If this be true, then, as we view it, the court, having theretofore assumed jurisdiction over the wife and her property, has the power to make an award from her estate sufficient to provide against the certainty *275 of such expense. We apply to the situation the logic employed by the court in the case of In re Leech, 45 La. Ann. 194, 12 So. 126, cited above. In that case, the court, after using language to the effect that a wife could contract debts for her support and thereby bind her husband, concluded in these words:
"It follows that she must have the right to obtain directly the support which she can secure by incurring debts for the purpose."
It is not contended in the case at bar that the amount allowed is greater than that which is actually necessary to support and maintain respondent under his present condition.
The extent of the court's power in such matters is strikingly illustrated by a number of cases that have come to our attention.Potter v. Berry,
We cite these cases, not as indicating what we might hold under similar extraordinary circumstances, but only to illustrate and emphasize the power of the court in the premises. That power must, of course, in any event, be exercised with circumspection and sound discretion. *276
We are of the opinion that, in the case before us, the award was made to cover anticipated expenses which, if incurred, would come within the meaning of Rem. Rev. Stat., § 6906, that the court had the power to make such award, and that the exercise of that power was dictated by a sound discretion. The award is, therefore, approved.
Appellant finally contends that the court erred in allowing respondent anything for expenditures made by him in the course of administration, or allowing him anything by way of fees. The court heard and carefully considered the evidence touching those matters, and we are unable to find anything in the record indicating error in its conclusion. It seems to us that the court was eminently fair to both parties.
The decree is affirmed.
SIMPSON, BEALS, MILLARD, and GERAGHTY, JJ., concur.
