Bohun v. Kinasz

• Decision Date: 15 July 1938
• Citation: 124 Conn. 543,200 A. 1015
• Court: Connecticut Supreme Court
• Parties: BOHUN et al. v. KINASZ.

200 A. 1015

124 Conn. 543

BOHUN et al. v. KINASZ.

Supreme Court of Errors of Connecticut.

July 15, 1938

Appeal from Superior Court, New London County; Carl Foster, Judge.

Proceeding by Mike J. Bohun and others against Nicholas Kinasz, executor of the will of Jacob Bohun. From a decree of the Court of Probate accepting the account of the executor and denying the application of the plaintiffs for appointment of commissioners, an appeal was brought to the Superior Court and tried to the court. From a judgment allowing the account with certain corrections and affirming the action of the Court of Probate in denying the application, plaintiffs appeal.

Error and judgment directed.

Max H. Schwartz and Alexander Winnick, both of New Haven, for appellants.

Thomas E. Troland and Edmund J. Eshenfelder, both of New London, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

JENNINGS, Judge.

The sole question pursued on this appeal is whether or not an abandoned wife can recover from the estate of her deceased husband sums spent by her from her own funds for her necessary support.

The facts are not in dispute. Jacob and Helen Bohun were married in New Jersey and in 1912 they moved to East Lyme, where they continued to reside together until 1925. During this entire period, Jacob treated Helen with extreme cruelty. She endured this until May 5th, 1925, when Jacob put her out with the statement to her that he could get plenty of other women outside of his home. Thereafter she supported herself and (in part) her children and her husband furnished her with no support whatever, although he was able to do so. She did not prior to the death of her husband, make any claim against him for support nor did she request him to support her. Seven dollars a week was a reasonable sum for her support and she paid this sum and more for this purpose after she was put out by her husband. Jacob Bohun died on October 19th, 1936, leaving an estate consisting of two deposits in savings banks amounting to over $8,000. Among the claims presented to the executor and allowed by him was one of $3,794 presented by his widow for her support, under the circumstances indicated above. The trial court came to the conclusion that this claim was properly allowed and included it in full in the restatement of the account.

The plaintiffs, heirs and legatees of Jacob Bohun, claim that this action was erroneous for the following reasons: ‘ The right of a wife to receive support is prospective in nature and she cannot recover for past support unless she can base her claim on some judgment or decree; she has no claim for reimbursement under General Statutes, § 5155, as amended, Gen.St.Supp.1935, § 1596c; her claim is barred by the statute of limitations and her laches, and, in any event, was terminated by the death of her husband.

The terms of the claim are set out only generally in the finding. No effort was made by the plaintiffs to secure any greater particularization of the issue. It therefore lacks that clarity which would result from the pleadings filed in an ordinary action.

The question of the recovery by a wife of past support does not seem often to have arisen. It was allowed in addition to a decree for future periodical payments, in the case of Artman v. Artman, 111 Conn. 124, 149 A. 246, but no question was made as to such recovery in that case, it apparently being assumed that it was proper if any recovery at all was allowed. In De Brauwere v. De Brauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A.,N.S, 508, it was held in a carefully reasoned opinion that a wife may bring an action against her husband for reimbursement for amounts expended by her for necessities. Sodowsky v. Sodowsky, 51 Okl. 689, 697, 152 P. 390, also approves recovery in a proper case but stresses the ‘ involuntary’ character of the payments. Kosanke v. Kosanke, 137 Minn. 115, 116, 162 N.W. 1060, allows the recovery on the ground that the expenditures were made in the expectation that they would be repaid. In McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696, Ann.Cas.1912A, 934, the wife recovered past expenditures from her husband's estate but there was a court order for support. See, also, McNally v. Weld, 30 Minn. 209, 213, 14 N.W. 895. Recovery for past support was definitely refused in Carr v. Carr, 6 Ind.App. 377, 33 N.E. 805. That case was brought under a nonsupport statute and holds, as do ours in Connecticut, that such statutes are concerned only with future support. Wethersfield v. Montague, 3 Conn. 507; Cunningham v. Cunningham, 75 Conn. 64, 52 A. 318; Gonzales v. Gonzales, 117 Tex. 183, 300 S.W. 20, turned on the construction of Texas statutes.

General Statutes, § 5155, as amended by Cum.Supp.1935, § 1596c, provides in part that ‘ It shall be the duty of the husband to support his family, and his property when found shall be first applied to satisfy any such joint liability.’ This clearly establishes the primary obligation of the husband to support his family. Katz v. Cohn, 122 Conn. 338, 341, 189 A. 594. The common law relied on this obligation to enable third persons furnishing the family with necessaries to recover therefor from the husband. Edgerton v. Edgerton, 12 Mont. 122, 131, 29 P. 966,16 L.R.A. 94, 33 Am.St.Rep. 557. The wife could have recovered similarly, but for her common-law disability to sue her husband. That disability having been removed by statute (General Statutes, § 5154), her right is now complete and arises out of quasi contract. De Brauwere v. De Brauwere, supra. The wife in the case at bar was faced with the alternatives of destitution for herself and her children or of using her own money earned by personal services. She was forced to pay an obligation for which another was primarily liable. Waters v. Waters, 110 Conn. 342, 345, 346, 148 A. 326; 3 Page, Contracts, § 1543. As was said in the De Brauwere Case, page 464, 96 N.E. page 723, ‘ The plainest principles of justice require that a wife should have some adequate legal redress upon such a state of facts.’

Many of the cases involving actions by the wife for support are suits in equity. The...