Long v. Northrup

• Decision Date: 05 April 1938
• Docket Number: 44078.
• Citation: 279 N.W. 104,225 Iowa 132
• Parties: LONG v. NORTHRUP et al.
• Court: Iowa Supreme Court

279 N.W. 104

225 Iowa 132

LONG v. NORTHRUP et al.

No. 44078.

Supreme Court of Iowa.

April 5, 1938

Appeal from District Court, Marshall County; B. O. Tankersley Judge.

This is an action to establish certain claims made by plaintiff against the estate of Neven Long, Sr., deceased, and to subject the property of that estate to their payment, with priority over other claims. The defense was that the estate was not liable at all, or, at most, that plaintiff's claim for doctors' and hospital bills was not, in a proper sense, expense of the last illness of the decedent with the priority incident to claims of such character. The trial court allowed plaintiff's claim as to funeral expenses, under section 11969 of the Code, and established the other claims as of the third class. It was further decreed that certain moneys derived from workmen's compensation, and the property referred to as a homestead were not subject thereto. Plaintiff, being dissatisfied appeals.

Affirmed in part; reversed and remanded in part.

E. N. Farber and R. A. Rockhill, both of Marshalltown, for appellant.

Boardman & Cartwright, of Marshalltown, for appellees, except F. E. Northrup.

SAGER Justice.

Appellant and Neven Long, Sr., were brothers. During the lifetime of the latter, the former advanced moneys, which advances were the subject of consideration in the trial below.

Neven Long, Sr., was injured in May, 1935, while engaged in employment which brought him within the provisions of the Workmen's Compensation Law. His claim was commuted, and the proceeds form a part of the subject of contention here. Before the settlement of the workmen's compensation claim, Long, Sr., had treatments at an osteopathic hospital in Missouri. These treatments began on October 1, 1935, and continued until February, 1936. To pay for them claimant-appellant advanced $230.98, taking a note for that amount, dated October 31, 1935, payable a year later. Appellant insists that the moneys so advanced constitute a part of the expense of the " last sickness" of Long, and should have been allowed as a preferred claim. The trial court refused to take this view, and complaint is here made of such ruling. After Long, Sr., returned to Marshalltown, he received treatments from one Dr. Gordon during the months of November and December, 1935, and in January and February, 1936. For these treatments appellant advanced, apparently on his own motion, $80, taking the doctor's receipts therefor. That the trial court declined to allow this as an expense of " last sickness" is made the basis of further complaint on this appeal. Another item is for $50 for money expended by appellant for repairs on the residence of the decedent. A demand for preference for moneys advanced to pay funeral expenses completes the various items which went to make up appellant's claim. The trial court gave preference to the item of funeral expenses, and allowed the other items as third-class claims. From this ruling, and the further one refusing to apply workmen's compensation money and the homestead to the payment of these claims, claimant appeals.

The ruling with reference to the allowance of funeral expenses and the refusal to give a preferred relation to moneys advanced for repairs are so self-evidently sound as to call for no further attention herein. Neither do we think there was error in the court's ruling with reference to the $80 advanced on claimant's own motion to pay Dr. Gordon for services terminating three months before the death of Neven Long, Sr.

We have, then, the question whether moneys advanced for treatments in Missouri come within the terms of section 11969 of the Code, which directs that as soon as possessed of sufficient means the executor or administrator shall " pay off the charges of the last sickness" of the deceased. While the question is not free from difficulty, we are satisfied that the trial court was right in holding that they did not.

We do not find that the question has ever been decided in this court, but it has been the subject of much discussion in other jurisdictions. In most of the states the question has arisen over the validity of nuncupative wills, which, by the statutes of the different states, are valid only when made during the " last sickness" of the testator. Because of the importance of the question we have given it considerable attention and have extended this opinion beyond what it perhaps should otherwise be. The fact that the testator changed medical attendants, while not controlling, is accepted by some of the courts as having some bearing on the question whether the treatment was during the last sickness.

24 Corpus Juris, Title, Executors and Administrators, § 1167, at p. 426, seems to comprehend the general rule deducible from the authorities there cited and such later ones as we have been able to discover. We quote: " What constitutes last illness. The last illness within the meaning of a statute, giving preference to the expenses thereof, is the illness which terminated in the patient's death and the right to a preference is limited to services performed and expenses incurred during that illness, but unless the period is designated by statute, no particular period preceding death can be fixed as constituting the last illness, as the duration of such illness must vary considerably according to the nature of the disease and the condition of the patient. Such a statute must, however, be liberally construed, and the expression cannot be limited in meaning to the period during which decedent was in extremis, but on the other hand it relates to the proximate, and not the remote cause of death, and a claim for medical attendance cannot be made to cover a long period during which the patient lingered, partially convalescent, the attendance being broken off during the convalescent period and then renewed on decedent's relapse, especially where there had been a change of physicians."

The Supreme Court of Kansas, in Baird v. Baird, 70 Kan. 564, 79 P. 163, 68 L.R.A. 627, at page 632, 3 Ann.Cas. 312, engages in a very interesting and instructive discussion of the subject, which we do not now stop to quote.

Along the same lines and pointing out the conflict of opinion which exists on the subject, the Supreme Court of Washington, in Re Estate of Miller, 47 Wash. 253, 91 P. 967, 13 L.R.A.,N.S., 1092, at page 1095, 125 Am.St.Rep. 904, 14 Ann.Cas. 1163, further elucidates the difficulty the courts have had in dealing with the subject.

While not strictly in point, we believe that the case of Proto v. Chenoweth, 40 Ariz. 312, 11 P.2d 950, at page 952, examines and analyzes the principles that should be applied. This being the latest of the cases that our own research has brought to our attention, we quote at some length:

" The facts in the present case are very different from anything that we have been able to find. To allow a physician purposely or negligently to postpone collecting for his services until after his patient is dead, even though the patient during much or all of the time was able to be up and around and transact business, is giving the phrase a rather more liberal meaning than was ever intended, we apprehend. We may suppose that one of the actuating reasons for the enactment of this law was to assure the sick patient proper medical care and attention during the period of his sickness, when he is more or less incapable of looking after business affairs, and at the same time assure his physician that he will be compensated for his services. During such period, whether a few days or many months, the physician has the assurance of the law that his services will be paid, if there is anything left of the estate after the funeral expenses are paid.

It is inconceivable that the Legislature intended that the physician should permit his claim for services, calculated on a monthly basis rather than visits made, to run over a period of two or three or more years, and then, after his patient is dead, have a preference for the entire amount. Practically and actually we know that persons, even though sick, attend to their business affairs, and at stated intervals, just as well persons do, demand and render accounts and make settlements. Sick persons often continue to do business, even though under the care of a doctor. Especially is that true of tuberculars or victims of cancer. They frequently experiment with different physicians. Because finally they die from tuberculosis or cancer is every one of such physicians entitled, regardless of the time of his service, to be preferred out of the patient's estate? It seems to us that the reasonable meaning of the phrase precludes, or should preclude, a physician from making claim to a preference, even though his treatment was for the same disease of which the patient finally died, if and when his services are not continuous, but occasional, with long intervals of discontinuance unexplained, and especially when the patient at the time of his death has severed the relation and employed another to look after him."

See, also, McLean v. Breen, Tex.Com. App., 219 S.W. 1089, 9 A.L.R. 459, and note.

In line with the deductions we make from the principles announced, we hold that the trial court was not in error in rejecting appellant's claim for moneys advanced for medical treatment as being expense of the last sickness of Neven...