Glass' Estate, In re

• Decision Date: 07 November 1953
• Docket Number: No. 39080,39080
• Citation: 175 Kan. 246,262 P.2d 934
• Parties: In re GLASS' ESTATE. STATE DEPARTMENT OF SOCIAL WELFARE v. COMMERCIAL NAT. BANK.
• Court: Kansas Supreme Court

Page 934

262 P.2d 934

175 Kan. 246

In re GLASS' ESTATE STATE DEPARTMENT OF SOCIAL WELFARE v. COMMERCIAL NAT. BANK.

No. 39080.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

1. A parent has a common-law duty to provide support and maintenance for his minor children and such duty extends and remains unchanged to a child who, on becoming of age, is in such feeble and mental condition physically and mentally as to be unable to support and maintain itself.

2. A petition filed in the probate court in the estate of a deceased parent for the allowance of a claim by the state department of social welfare against the estate for the maintenance, care and treatment of an incompetent daughter and son at a state hospital, rendered during the parent's lifetime, is examined, and held, not to exclude the common-law duty of such parent to support the incompetent children.

3. The provisions of G.S.1949, 59-2006 and the statute amending it, Laws 1951, Ch. 340, § 2, appearing as G.S.1951 Supp. 59-2006, examined and construed, and held: 1, That, in part, the statutes state the common-law duty of a parent to support his child who on becoming of age is in such feeble and mental condition physically and mentally as to be unable to support and maintain itself, and fix liability for such maintenance, care and treatment at a state hospital; 2, That the statutes make the child or its estate primarily liable for such maintenance, care and treatment, and the parent secondarily liable; 3, That the liability of the parent continues during his lifetime; 4, That the statutes contain no provision for and are not to be construed that the liability of a parent to the state department of social welfare for support rendered an incompetent child during the lifetime of the parent, abates on the death of the parent and that a cause of action to recover for such support does not survive.

4. The petition referred to in paragraph 2 hereof is further examined, and held, that the cause of action therein alleged did not abate on the death of the parent but survived and may be maintained against the parent's estate.

Charles V. Hamm, Topeka, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Hart Workman, Topeka, were with him on the brief, for appellants.

Marion C. Miller, Kansas City, argued the cause and was on the brief for appellee.

THIELE, Justice.

This appeal presents the question whether the claim of the state department of social welfare against a parent for the support of incompetent children committed to a state hospital survives the death of the parent and may be proved as a demand against the parent's estate. For convenience we shall refer hereafter to the parties as the petitioner and the executor.

Although not disclosed by the abstract of the record, we are advised by the executor in its brief that Lucy Glass was the mother of two adult children who were committed to the state hospital for the insane and that she died leaving a will in which she named appellee as exeuctor and under which she made no bequests or devises to the incompetent children.

In March, 1952 the petitioner filed its petition in the probate court against the estate of Lucy Glass asserting a demand for $1,010.72 for the maintenance, care and treatment of Mamie Woodring and George Glass, incompetent daughter and son of Lucy Glass, deceased: that the incompetents were patients at the Osawatomie State Hospital as shown by two attached exhibits, one for the maintenance, care and treatment of Mamie Woodring in the amount of $537.36 for a period ending April 25, 1951, and the other for like services to George Glass in the amount of $472.86 for a period ending April 25, 1951. (It is here noted that as hereafter stated, Lucy Glass died on April 25, 1951.) It was also asserted in the petition that the petitioner had complied with the requirements of G.S.1949, 59-2006, as amended, G.S.1951 Supp. 59-2006. There being no issue thereon, the remainder of the petition is not noticed further.

The executor filed six objections to the allowance of the demand. Five of the objections, the contents of which are not shown, were overruled, but the sixth was sustained. That objection in substance stated that Lucy Glass died on April 25, 1951, and thereupon the petitioner's pretended cause of action abated, did not survive, had not been and could not be revived and could not be allowed against her estate and the court had no jurisdiction of the claim in any respect. The probate court sustained this objection, and on appeal to the district court by the petitioner, that court made a like ruling. In due time, the petitioner appealed to this court specifying the ruling as erroneous.

It is to be borne in mind that the petitioner asserts no claim that the estate of Lucy Glass is liable for any maintenance, care and treatment of her incompetent children furnished the children after her death. The sole question is the right of the petitioner to collect from her estate for the accrued and unpaid amount due at the date of her death.

To explore every evenue opening from a consideration of the broad question of the duty of a parent to support his child, would involve the writing of a treatise. Our effort will be to confine discussion as much as possible. We here note that both parties have referred to decisions and textbook authorities, which we do not mention below. They have been examined but those mentioned are deemed sufficient.

For the reason repeated references are made with respect to the liabilities of the parent for the support of his children and incompetent children at common law, we note that under G.S.1949, 77-109 it is provided that 'The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state * * *.'

In Clark v. Allaman, 71 Kan. 206, 80 P. 571, 70 L.R.A. 971 may be found an exhaustive review of this statute and its history. The last case involved water rights. In the later case of Cooper v. Seaverns, 81 Kan. 267, 105 P. 509, 25 L.R.A.,N.S., 517, 135 Am.St.Rep. 359, which was an action for slander, where the defendant sought to invoke the rule of common law that spoken words imputing unchastity to a female are not actionable without allegation and proof of special damages, this court held the rule was out of sympathy with the true spirit of the bill of rights, lacked the sanction of justice and right and did not apply to the conditions or meet the needs of the people of this state.

Textbooks treating the general subject of the duty of a parent to support his child make it clear that regardless of any statute, parents are under a duty to support their minor children (39 Am.Jur. p. 631, 67 C.J.S., Parent and Child, § 15, page 686); that in the absence of some legally sufficient reason the duty to support continues during the parents' lifetime and until the child reaches majority, unless the child is in such dependent condition physically or mentally as to be unable to support itself. 39 Am.Jur. p. 645, 67 C.J.S., Parent and Child, § 17, page 704.

We need not review authorities dealing with the duty of a parent to support his minor child other than to note that in Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065, where it was said that at common law the father of an illegitimate child was under no legal duty to support it, it was held that the father of such a child too young to support itself was under a non-statutory obligation to support it. In Myers v. Anderson, 145 Kan. 775, 67 P.2d 542 the same question was again before the court and the last cited case was followed. It may be urged that the above cases dealt with minor children and that is true. On the other hand the decisions show clearly that a rule of the common law unsuited to the conditions and the needs of the people of this state will not be followed.

The question of the duty of a parent to support an adult child has been before this court on at least two occasions, which will be noticed. In Sheneman v. Manring, 152 Kan. 780, 107 P.2d 741, 742, it appeared that the father, who was a man of some means, lived alone with a housekeeper. His only surviving child was a daughter forty-seven years of age, in poor health and poverty stricken, being supported by public relief agencies. The father was declared incompetent and a guardian was appointed. The probate court ordered the guardian, out of the ward's estate, to make monthly contributions to the daughter. Reference is made to the opinion for a fuller statement of the facts. The guardian appealed to the district court which affirmed the probate court and appeal to this court followed. Limits of space preclude extensive quotation but we note the following:

'On behalf of the appellant guardian it is...