15 N.W.2d 367 | Iowa | 1944
Dora B. Truax, of Des Moines, Iowa, wife of appellant, died testate, June 25, 1943, leaving no children, but survived by her husband and a number of her collateral heirs, who are beneficiaries under her will. She owned an eighty-acre farm in Guthrie County, Iowa, and most of the household goods in their home in Des Moines. This home was apparently owned by her husband and she devised to him "all right, title and interest" therein, including "my dower right" and "all my interest in said property." She devised an undivided one-third interest in the farm, the curtains and carpets in the home, and her "dower right in our Colorado land" to her husband. To her sister, the appellee, she devised an undivided one-third interest in the Guthrie county farm, and the remaining undivided one-third interest therein to two other sisters. Her household goods and personal effects were bequeathed with considerable particularity to her sisters, nieces, and nephews.
The will made no provision for the payment of any obligations or claims other than a direction to first pay all her funeral expenses, and for a "very small headstone placed at my grave." She named her husband and the appellee as executors and they qualified. On February 9, 1944, the executors filed a report stating that by agreement of all the beneficiaries the Guthrie county farm, the only real estate owned by the deceased, had been sold for $12,000, which proceeds were held by them; that no distribution had been made under the will, and that claims had been filed against the estate in the sum of $4,218.90, none of which had been "proven, allowed or paid."
On January 12, 1944, the appellant filed accounts "for medical, hospital and nurse service for Dora B. Truax, deceased, during her last illness from March, 1942, to June, 1943." These accounts are for services of the Iowa Methodist Hospital, Des Moines ($1,184.80), University Hospital, Iowa City ($372.46), Worrall Hospital, Rochester, Minnesota ($121.40), Mayo Clinic, Rochester, Minnesota ($200), ambulance services at Des Moines and West Branch, Iowa ($67.50), services of eight doctors ($544), and services of seven nurses ($782). The total amount paid by the appellant for these services was $3,272.16. Appellant withdrew temporarily as executor insofar as his duties pertained to his claim. *1219
On February 21, 1944, the appellee filed a motion to strike and to disallow the claim of the appellant, for the following reasons, in substance: (1) Claimant is the husband of deceased and one of the executors of her estate, and all said items paid by him were reasonable and necessary expenses of the family, for which he was legally and morally liable, and no claim or cause of action arose in his favor against his wife by their payment (2) said claim is void and without legal implication or value, and is contrary to and violates public policy, and it violates the marital relationship and the responsibilities of the husband therein (3) claimant was made liable for each and all of said claims by statute and payment thereof was a legal duty and in no respect created a right in his favor to have same repaid, or any liability on the part of the wife (4) under the statutes of the state and the decisions of this court, claimant is forbidden to maintain the claim or to recover anything thereon, since all of the claims were paid by him pursuant to his statutory duty.
Insofar as this appeal is concerned there is no dispute as to the facts. The motion of the appellee served the purpose of a demurrer and it will be considered as such. It will be treated as admitting that all items of the claim were expenses of the last sickness of the appellant's wife. All of the items were paid by appellant out of his own funds before the death of his wife. It is conceded that there are ample funds in the estate to pay the claim of appellant and all other claims filed and all obligations of the deceased and her estate and all expenses of administration. The only question to be answered on this appeal is whether, under the statutes of Iowa and the decisions of this court, the appellant is entitled to reimbursement from the estate for the money paid by him for the expenses of the last sickness of his wife. The matter of funeral expenses is not involved herein and will not be discussed except as it may, by analogy or connection, bear upon the liability of a husband for the expenses of his wife's last sickness. It is our conclusion that under these statutes and decisions, and under the record before us, the court erred in sustaining the motion to strike and dismissing appellant's claim.
I. At common law there arose out of the marital relation the duty and obligation of the husband to provide for his wife, *1220 during health and sickness, those things reasonably suitable and necessary for her comfort and well-being, which were in keeping with his station in life, fortune, and earning power. He was entitled to such personal property as she brought him, and to her service. As a general rule, neither the wife nor such estate as she might leave was legally liable for such necessaries.
Most, and perhaps all of the states, have enacted married-women's acts and other so-called emancipatory legislation, greatly enlarging the common-law rights of the wife with respect to separate business and occupation, the right to contract, the acquisition, ownership, control, and alienation of property, the right to sue and be sued, and other matters. With this enlargement of rights has also come enlargement of duties and obligations. Iowa early enacted such legislation.
In several of the states the courts have held that this legislation has not abrogated the common-law responsibility of the husband above noted, nor relieved him of the liability of supporting his wife and providing her with reasonable necessaries, which, of course, include the services required in the last sickness. It is, and has been, the uniform holding of these courts that since the husband is primarily liable for the expenses of the last illness of the wife, and her estate is, at most, but secondarily liable, the husband, who has paid for these services, is not entitled to reimbursement therefor from the estate of the wife, even though the assets thereof are sufficient to do so. Without attempting to note all of the courts or all of the decisions, we call attention to the following: Moulton v. Smith,
It would serve no purpose to analyze these cases nor the pertinent statutory legislation. We have read the cases and the decisions are based upon public policy, the common law, or upon statutes which the courts have construed not to absolve the husband from his common-law liability. Typical of some of these statutes and the construction thereof is section 1255, Oklahoma statute, 1931 [58 Okla. Stat. 1941, section 591], which provides the debts of the estate must be paid in the following *1222 order: 1. funeral expenses; 2. expenses of last sickness, etc. Of it the court said:
"The purpose of section 1255, O.S. 1931, is to establish priority of legal enforceable debts against the estate of a deceased person, and does not create liability." (Italics ours.) Brogden v. Baugh, supra,
The word "debt" in such a statute refers, of course, to obligations of the wife or estate, and cannot, therefore, include the expenses of her last sickness, which those courts hold as a "debt" of the surviving husband or of his estate.
In speaking of these decisions, the Missouri Court of Appeals, in Reynolds v. Rice, 224 Mo. App. 972, 976, 27 S.W.2d 1059, 1061, said:
"We are confronted by a contrariety of opinion and conflict of decisions from other jurisdictions, the value and weight of which depend on the reasons assigned, as well as the character of the various statutes and the declared policy of the several states. It would be a useless encumbrance to review in detail the various cases relied upon, and to examine the statutes to which reference is made, note differences, compare them, and the reasoning in the opinions, for the purpose of determining the sounder rule of decision. We shall give attention to our statutes of administration said to be applicable, and the effect, if any, of the married women's acts."
This is the proper approach to the question before us.
Under legislation passed many years ago in Iowa, the husband has been relieved of his sole liability for family expenses. Section 10459, Code of 1939, is as follows:
"Family expenses. The reasonable and necessary 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."
It has come down, in substance, through the various Codes since the Code of 1851. While the section provides that the husband and wife may be sued jointly or separately, they are *1223 not joint debtors. In a per curiam opinion, Vest v. Kramer, Iowa, 114 N.W. 886, 14 L.R.A., N.S., 1032, we said:
"In our opinion the liability of the defendant is not that of a mere surety for her husband. The statute makes the property of both equally liable for the payment of such family expenses. Code, § 3165 [1897]. As between them and the creditor both are liable as principals, and the discharge of one does not necessarily work the discharge of the other. While both are liable for the same debt, and payment by one operates as a discharge pro tanto of the other, they are not joint debtors. There is no joint promise or joint contract. The liability of one is contractual, while the liability of the other is purely statutory."
Both are equally bound for such debts. See, also, Skillman v. Wilson,
In speaking of the effect of said section upon the common-law liability of the husband for family expenses, the court, in Johnson v. Barnes,
"As we understand, the rule that the father is primarily liable for the support of his infant children is based on the ground that the personal property of the wife and mother, in the absence of a statute, upon the marriage became absolutely his. The reason upon which this rule is based has ceased to exist in this state, and a married woman may acquire and hold property, both real and personal, in the same manner as her husband can, and the same may be held by her exempt from the debts of her husband. [Citing statutes.] This being so, it may be doubtful whether this rule should have force and effect in this state. Especially is this so when the following statute is taken into *1224 consideration. [Quoting section 10459, Code of 1939, as it appeared in section 2214 of the Code of 1873.]"
Because of the relation above noted of the husband and wife to obligations for family expenses, this court has held that if either spouse uses, or permits the use of, his or her individual property for the purchase of family necessaries, without an agreement for repayment, the one whose property is so used cannot recover it in an action against the other spouse or against his or her estate. Appellee relies strongly upon this rule and cites in support thereof the following decisions: Courtright v. Courtright,
Not one of these decisions aids the appellee in any way nor has any application to the appellant's claim. Several of them have no application for specific reasons pertinent to those particular cases, but none of them is applicable for the reason that in none of them was the money or property sought to be recovered expended in payment of services rendered, or medicine or materials furnished in the last sickness of either spouse. If the appellant were in court seeking reimbursement for groceries, meat, clothing, or general household necessaries brought into the home, he would not have a case and the order of the trial court would have been right. He is in court seeking reimbursement for family expense, but it is a particular kind of family expense — expense for the last sickness of his deceased wife. This distinction is noted in Skillman v. Wilson, supra,
"Expenses of funeral — allowance to widow. As soon as the executor or administrator is possessed of sufficient means over and above the expenses of administration, he shall pay off the charges of the last sickness and funeral of the deceased * * *."
The executrix is possessed of ample funds to pay the expenses of administration and the charges of the last sickness. She has refused to pay them because, as she says, those who furnished the services and things for which the charges were made have already been paid and the statutory obligation of the estate has thereby been satisfied. It was necessary, no doubt, that the services be paid promptly upon being rendered. Hospitals and nurses usually insist upon that. It is apparent from the report of the executors that Mrs. Truax did not have the cash available to pay these expenses. In any event, it was proper that the husband then pay them. At that time both he and his wife were equally liable for their payment. But this does not mean that in the event of her death from the ailment afflicting her, her estate should not bear the ultimate burden of these expenditures. That is the plain mandate of the statute. It does not mean that the husband or any other person who may have properly paid them shall not be reimbursed by the estate. If such other person had paid them, no one would doubt the duty of the estate to reimburse him. To say that the same duty is not owing to the husband who has paid them is to read something into the statute which clearly is not there. Of a similar situation, in which the appellate court reversed the trial court for not allowing reimbursement to the husband from the wife's estate for her funeral expenses which he had paid, Justice Holmes, in Constantinides v. Walsh,
"There is no technical difficulty in a husband's imposing a liability upon his wife's executor after her death. If it was not the plaintiff's legal duty to do what he did, nevertheless we are of opinion that he stood on no worse ground than a stranger would have done. A stranger could have recovered against the *1226 estate of a man, if he was justified in intermeddling. * * * And formerly, in the case of a married woman, he could have recovered against her husband. [Citing cases.] Undoubtedly he could now recover against her estate. If so, the husband can."
The appellee argues:
"Whatever claim appellant has against his wife's estate arises out of the voluntary payment thereof before it became known that they were for her last sickness. She was still living when the payment was made. The relationship of husband and wife still existed. * * * No one at the time of the payment of the claims listed by appellant knew that his wife was going to die."
This is not any answer to appellant's claim. It oftentimes happens that it is not known, and it is not anticipated, that the one being cared for is sick for the last time, but that fact does not nullify the mandate of section 11969. Whether the husband paid the expense of the last sickness of his wife before or after she died is of no materiality. The duty of paying these expenses is the primary and ultimate obligation of his wife's estate. Appellant relies upon the holding of this court in Skillman v. Wilson, supra,
"Both husband and wife are dead, the latter first having departed this life, and the sole question presented on this appeal is whether, assuming the estate left by each to be ample to satisfy all claims for the expenses of last sickness and funeral of the wife, the husband in his lifetime, or the administrator of his estate, may have established in his favor the amount of such expenses as a contingent claim against the estate of the wife. * * * But for section 3347 of the Code, then, the obligations of the husband were such that upon payment of the expenses of the last sickness and funeral of his wife unless as administrator of her estate, claim therefor might not be established against her estate. * * * Thereby preference is given over all ordinary debts, taxes, and the like, and, regardless ofthe relative obligations of the living or that of the husband atthe common law, the duty of meeting these expenses is especially imposed upon the executor of every deceased person. * * * The statute quoted makes it obligatory on executors and administrators of estates having sufficient means to meet both the charges of the last sickness and of the funeral of a deceased person. Neither necessarily depends on the contract of deceased or others but may rest on this statute. While the expenses of last sickness differ from those of funeral in that they are rendered during the life of the person on whose estate they are made a charge, the necessity for their rendition is similar to the latter * * *. Cunningham v. Lakin, 97 Pac. (Wash.) 448. The legislative design in enacting the statute quoted was to assure to every person care in his last sickness and appropriate burial by declaring the charges therefor, preferred claims and exacting their payment as soon as funds enough to satisfy them, come into the possession of his personal *1228 representative. It is mandatory in form. It contains no discrimination as between creditors to whom such charges may be owing and the duty to pay is declared independently of any obligation which may exist on the part of others. Its language obviates the inference otherwise to be drawn that it was intended merely to declare a preference as between claims against the estate. As seen, it may be deemed the basis for the allowance of such expenses, and we are of the opinion that the legislative intent was to impose on the estate of every deceased person a primary liability for the charges of the last sickness and funeral. If so, the obligation of either husband or wife therefor is secondary thereto in character, and, in event of payment by either, such charges may be established as claims against the estate of the deceased. This construction is not only reasonable, but is well calculated, in a case like this, where both husband and wife are dead, and each has left an ample estate, to protect the property of the one against the unseemly efforts of the heirs or devisees of the other to evade the satisfaction of the reasonable charges of the last sickness and funeral from the estate of the decedent under whom they take. The claims should have been established as contingent claims against the estate."
In a dissenting opinion by Justice McClain, joined in by Justice Deemer, fears were expressed that the majority opinion would introduce a new rule in actions by the husband for injuries causing the death of the wife. The basis for any such fears was removed by chapter 163 of the Laws of the Thirty-fourth General Assembly (section 3477-a, 1913 Code Supplement) re-enacted and appearing in section 3477-a, 1915 Supplement to the 1913 Code Supplement, since re-enacted and appearing as section 10991.1 (amended by chapter 297, Acts of the Forty-ninth General Assembly) of the Code of 1939.
Under these sections any woman, single or married, and regardless of whether the latter had an occupation separate and independent of that of housewife for her husband, injured by the negligence or wrongful act of another, could and can recover for loss of time, medical attendance, and other expenses incurred as a result thereof, in addition to any elements of damages recoverable by common law. If she dies from the injury, *1229 her administrator may sue for like recovery. Her husband may not recover for these elements of damage.
In Ege v. Born,
In Smith v. Eichner,
"While it was the appellant's duty to furnish the services to his wife during her lifetime, yet inasmuch as we have held the estate to be primarily liable, he is entitled to reimbursement. If appellant had not paid these expenses, the estate would have been liable for them. By paying them and taking an assignment of them as claims against the estate, the appellant did not make them his primary debt, nor relieve the estate of its obligations to pay them." Citing Cunningham v. Lakin,
There is a like holding in Parsons v. Tracy,
The appellant cites Schneider v. Breier's Estate,
We have no inclination to depart from the decision of the court in Skillman v. Wilson, supra, and the later decisions reaffirming it. It was announced over thirty-four years ago and the many legislatures that have met in the intervening years have not seen fit by legislation to disagree with the court's construction of section 3347, Code of 1897 (section 11969, Code of 1939).
The contention of the appellee that an allowance of appellant's claim would be against public policy is without merit. We look to the constitution, statutes, and ordinances for our written public policies, and our unwritten public policies rest largely in judicial judgment and public opinion. It has been stated that public policy:
"In substance * * * may be generally said to be the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like." Kintz v. Harriger,
If the appellant establishes his claim, its allowance will be in keeping with public policy, and certainly there can be no inequity in using the funds of the estate to reimburse a husband who used $3,272.16 of his money to attempt to restore his wife to health, instead of giving that amount to collateral heirs.
The trial court's order of dismissal is therefore reversed and the cause is remanded to the district court for further proceedings in conformity with our decision herein. — Reversed and remanded.
All JUSTICES concur. *1231
