This is an appeal from the allowance to Jacob C. Mann, guardian of Emma Renz, an incompetent, of the sum of $485.41 for the oare and maintenance
Emma Eenz was the wife of Henry Renz, and had been for some time prior to 1875. In March, 1875, she became insane, and her • friends deemed it advisable to remove her to the asylum. She had no guardian at that time, nor until May, 1877. Her husband and John Baumeister on March 4, 1875, made a contract with said asylum to pay certain extra charges and expenses while at the asylum. Her husband was unable to pay such expenses. Mrs. Baumeister, the mother of Emma by a former husband, asked her husband, Mr. Baumeister, to advance the money necessary to send and keep Emma in the asylum, saying to him that she had made a will bequeathing Emma $1,000, and that he could be re-imbursed out of that legacy. Baumeister, expecting to be re-imbursed, paid the above amount for removing and keeping her at the asylum. Mrs. Baumeister died May 24, 1876, leaving a will containing the bequest, and making her husband executor. After the legacy became payable, • Jacob Mann was appointed guardian, and filed his .account as such guardian in the probate court, charging himself with $1,000, the amount of the legacy, and crediting himself with the above amount, which Baumeister had expended for the care of Emma at the asylum. The circuit court held that this amount was properly chargeable by Baumeister against the legacy, and that it was proper and lawful for said Mann, as guardian, to allow the same.
That the removal of Mrs. Renz to the asylum was dictated alike by necessity and humanity; that Baumeister and Mann, the guardian, acted in good faith; that the expenditure of the money was judicious, and for her benefit, — are 'not questioned. But it is contended on the part of the appellant that the claim of Baumeister is illegal, because the husband was primarily liable, and Mrs.
“ Where a husband utterly deserts his wife, it would be a cruel rule for her if she cannot, in his absence at least, or in his presence, if he does not himself provide for her, make a binding agreement for any necessary, whether articles to be purchased or professional help, without becoming a public charge."
Still more cruel would be a rule that the friends of an insane married woman cannot advance money to procure for her medical attendance and care when the husband is utterly unable to do so, and in so doing bind her estate. Infants and insane persons are liable for necessaries furnished them, and the statute of this State expressly makes the estates of insane persons liable for their maintenance at the asylum. Act No. 135, § 32, Laws of 1885.
Alexander v. Miller, 16 Penn. St. 219, cited by appellant, is not in point. In that case the wife of an insane man attempted to sell his property, not to provide medical care or necessaries, but to prevent the levy of an execution on his property. Of course she had no authority to do this. The question presented here did not arise in that case.
The husband of Mrs. Benz being unable to provide for her removal to the asylum, an act of the highest necessity, it would have been competent to use her own property for that purpose, if she had been possessed of any. Baumeister advanced the money, not as a gift, but
The judgment must be affirmed, with costs.