Kummer's Will, Matter of

• Decision Date: 18 July 1978
• Citation: 104 Misc.2d 978,429 N.Y.S.2d 983
• Parties: In the Matter of the Judicial Settlement of the Account of Proceedings of Margaret Kummer as Temporary Administratrix and as Administratrix c. t. a. through
• Court: New York Surrogate Court

Page 983

429 N.Y.S.2d 983

104 Misc.2d 978

In the Matter of the Judicial Settlement of the Account of Proceedings of Margaret Kummer as Temporary Administratrix and as Administratrix c. t. a. through July 18, 1978, of the Last WILL and Testament of Philip KUMMER, Deceased.

Surrogate's Court, Westchester County.

June 12, 1980.

Frank & Fredericks, New York City, for petitioner.

Leepson, Rubman & Ross, Albert J. Mayell, New York City, for respondents.

Samuel S. Yasgur, Westchester County Atty., White Plains.

Samuel Barish, Guardian ad Litem.

DECISION

EVANS V. BREWSTER, Surrogate.

In this intermediate accounting proceeding, petitioner has requested court approval of the rejection of the claim made by the Department of Social Services of Westchester County for care, support and maintenance of decedent's two children. A companion claim is made by the guardian ad litem for the children by reason of the expenditure of social security benefits received by the Department of Social Services, as representative payee of the children for this care, support and maintenance. The facts with respect to these claims are not in dispute.

The Department of Social Services of Westchester County commenced a proceeding in the Family Court on July 24, 1972 to remove the children of Philip and Daisy Kummer pursuant to Article 10 of the Family Court Act. On that day, the children were physically removed from their parents' home and placed with foster parents. Four days later, the mother of the infants died. On March 13, 1973, an order of neglect was entered in the Family Court with the consent of all parties and a direction was made for the placement of the Kummer children in a foster home. From July 24, 1972 until the death of decedent on July 24, 1976, the Department of Social Services furnished medical assistance to the children at a total cost of $9,044.59 as well as other care and assistance at a total cost of $18,807.04. It is conceded that at all times, decedent had sufficient income and resources to pay for the costs above set forth but that, in fact, during this time Philip Kummer paid only $6,059.12 towards the maintenance cost of his children. No money was applied to the cost of medical assistance.

In the meantime, the Department of Social Services made application on August 3, 1974, pursuant to 42 U.S.C. 402(d) for Old Age Survivors and Disability Insurance (OASDI) benefits to which the children were entitled under the Federal Social Security Act and further applied to be selected as "representative payee" for the said children. Subsequently, the Social Security Administration selected Social Services as "representative payee" of the Kummer children and on October 22, 1974 paid it $7,092.00 for O.A.S.D.I. benefits for both children for the period from May 1, 1973 through September 30, 1974. Thereafter additional payments were made for the benefit of the children in the total sum of $17,527.20 to July 24, 1976, the date of death of decedent herein. No part of that money was used or applied to Medical Assistance furnished the children.

On May 21, 1974, the Commissioner of Social Services commenced a support proceeding against the decedent in the Family Court of Westchester County pursuant to Article 4 of the Family Court Act. A number of conferences between the attorneys for the respective parties in this proceeding resulted in an agreement of settlement.

A stipulation dated December 29, 1975, was signed by the attorneys and approved by Philip Kummer, under which among other things, the pending support proceeding against Philip Kummer was withdrawn without prejudice and Philip Kummer delivered to the Commissioner of Social Services two matured bonds, each in the face amount of $10,000.00, issued by Arizona Public Service Company. The bonds and interest checks paid thereon delivered by Philip Kummer to Social Services were registered in the name of Daisy Kummer (the deceased mother), under the New York Uniform Gifts for Minors Act, as custodian for each of her two children. Inquiry was made by the County Attorney seeking to have the bonds redeemed, but no transfer and no payment was made. The bonds and checks are still in the possession of the Department of Social Services. Apparently during the settlement negotiations and at the time the stipulation of settlement was made, it was assumed by both parties that Philip Kummer would be responsible only for the difference between social security benefits received by the Department of Social Services as "representative payee" and the full cost of caring for his children and that the bonds of the children could be used by the Commissioner of Social Services for their support and maintenance. It was after the death of Philip Kummer that the Department of Social Services made its claim against the estate, initially in the sum of $5,046.32 and later amended to the sum of $21,792.51 which was the full amount expended for the benefit of the children less the amounts previously paid by the decedent.

The estate argues that there is no legal right to recover "medical assistance" furnished to the children by the Department of Social Services; that the social security payments received by Social Services were correctly used for maintenance costs of the children and cannot be recovered; and that the agreement between the parties on December 29, 1975 effectively bars any further recovery by Social Services which is now estopped by their negligence and laches from seeking any reimbursement from the estate.

One of the basic tenets of civilized society has been that a father is chargeable with the support of his child. Our modernized statutes have limited such responsibility so that a father, if possessed of sufficient means or able to earn such means, is chargeable with the support of his child or children only while they are under twenty-one years of age (Domestic Relations Law 32, Family Court Act 413). The fact that a child may have independent means of his own effects no diminution of the father's primary obligation to support his children (Quat v. Freed, 25 N.Y.2d 645, 306 N.Y.S.2d 462, 254 N.E.2d 765; Siegel v. Hodges, 15 A.D.2d 571, 222 N.Y.S.2d 989; Drazin v. Drazin, 31 A.D.2d 531, 295 N.Y.S.2d 183). Where such support is not provided by the father, the Commissioner of Social Services is mandated to provide public assistance and care, support and protection for such child or children (Social Services Law, Article Six, Title 2, Sec. 395, et seq.). The Commissioner of Social Services is also given the power to compel a person liable by law for support to contribute to the support of any person cared for at public expense and to recover any monies thus paid from the person liable (Social Services Law, Article 3, Title 6, Sec. 101 et seq. Family Court Act, Sec. 415). The application of these general principles to cases when claims are filed by a governmental department against estates, legatees and distributees for recovery of public assistance and support and care paid to needy recipients, was set forth in a learned opinion by my erstwhile colleague, Surrogate Sobel in Matter of Colon, 83 Misc.2d 344, 372 N.Y.S.2d 812. Surrogate Sobel pointed out that under Social Services Law 104, a Department has the right to recover public assistance given (a) against the recipient himself; (b) against the responsible relative (RR) of the recipient (as defined in Sec. 101); (c) against the estate of the recipient and (d) against the estate of the RR. Further, that as to the liability of the estate of a deceased RR, recovery may be had regardless of whether the RR was of sufficient ability during the period of assistance (Matter of Colon, supra, p....