Reith v. Mountrail County

• Decision Date: 06 August 1960
• Docket Number: No. 7894,7894
• Citation: Reith v. Mountrail County, 104 N.W.2d 667 (N.D. 1960)
• Parties: Carl J. REITH, Executor of the Estate of Edward Carl Berg, Deceased, Appellant, v. COUNTY OF MOUNTRAIL and State of North Dakota, Respondents.
• Court: North Dakota Supreme Court

Page 667

104 N.W.2d 667

Carl J. REITH, Executor of the Estate of Edward Carl Berg Deceased, Appellant, v. COUNTY OF MOUNTRAIL and State of North Dakota, Respondents.

No. 7894.

Supreme Court of North Dakota.

Aug. 6, 1960.

Syllabus by the Court

1. It is the duty of the father of a poor person who is unable to maintain himself by work to maintain such person to the extent of the father's ability.

2. When a father makes application for the admission to the Grafton State School of his son who is unable to maintain himself by work he impliedly agrees to pay for such care and maintenance as may be furnished by the state school, and the fact that Section 25-0822 NDRC 1943 provides for the extent of the father's liability does not destroy the contractual nature of the father's obligation.

3. Where the state school accepts a son for care and maintenance pursuant to his father's application a contractual relationship is established between the father and the school and where a county has paid for the care and maintenance of the son over a period of years a claim filed by the county against the estate of the father after his decease is a claim arising upon contract within the meaning of Section 30-1804 NDRC 1943 and must be presented within the time limited in the notice to creditors and if not so presented is barred forever.

4. Section 30-1804 NDRC 1943 providing that all claims against the estate of a decedent arising upon contract with certain exceptions provided therein must be presented within the time limited in the notice to creditors or be barred forever applies to claims of the state or for its benefit in the same manner as claims of private parties.

Lyons & Beauclair, Valley City, for Estate of Edward Carl Berg, Decd., appellant.

Leslie R. Burgum, Atty. Gen., Dale H. Jensen, Asst. Atty. Gen., and Roger A. McKinnon, Bismarck, for respondents.

MORRIS, Judge.

On May 19, 1922 Edward Carl Berg, now deceased, made an application for the admission to the Grafton State School of his son Clifford Berg. The son was admitted to the school on August 11, 1922, where he remains. Mountrail County was billed for the care of Clifford Berg.

The father died in September 1957 and his estate is now in the course of probate in the County Court of Barnes County. Notice to creditors was published in May 1958 pursuant to the provisions of Section 30-1802 1957 Supplement to NDRC 1943. The last date for filing claims prescribed by this notice was August 1, 1958. The date for adjusting claims was set for August 15, 1958.

On August 18, 1958 the county auditor of Mountrail County filed a claim on behalf of that county against the estate of Edward Carl Berg for the care of Clifford Berg at the Grafton State School from August 11, 1922 to June 30, 1958 inclusive in the sum of $7,146.50. On August 23, 1958 the county auditor filed another claim for the additional amount of $2,760.59 as the State's share of the care of Clifford Berg for the quarter ending September 30, 1941 to the quarter ending June 30, 1958. The county court heard and denied both of these claims on the ground that they had been filed after the time prescribed by the notice to creditors had expired and were therefore barred under the provisions of Section 30-1804 NDRC 1943. The County of Mountrail appealed to the District Court of Barnes County and was joined therein by the State of North Dakota as an interested party. Section 30-1811 NDRC 1943. The district court, on appeal from the county court's order denying the allowance of these claims, reversed that order and caused judgment to be entered directing that the claims be allowed and paid. The executor of the estate appeals from that judgment.

We first address our attention to the nature of the liability represented by these claims. The state school is maintained for the relief and instruction of the feebleminded and for the care and custody of the epileptic and idiotic of the state. Section 25-0402 NDRC 1943. The expense of the care, board and treatment of each inmate is a charge upon the county from which the inmate is sent. Section 25-0409 1957 Supplement NDRC 1943.

Section 25-0822 NDRC 1943 provides that:

'The person legally responsible for the support of any patient at the state school shall pay to the county treasurer monthly, for the use of the county or state, the amount properly chargeable for the care of such patient at such institution. The county treasurer shall retain for the county such amounts as may have been paid by the county on account of such care and shall remit the balance to the state treasurer. If the person liable to pay such amount fails or neglects to make payment upon demand by the county auditor, the board of county commissioners shall direct the state's attorney to bring suit for the recovery of such payments as are delinquent.'

Section 25-0826 1957 Supplement to NDRC 1943, enacted as Section 21, Chapter 196, Session Laws N.D.1957, provides that:

'The county auditor is hereby authorized to collect the expenses for the treatment and maintenance of the county's patients at the state hospital, state school, or the state sanatorium, incurred by the county or the state, including the amount advanced by the state from the institutional support funds. Such expenses may be collected from such patients after they have been discharged from such institutions as cured, or from their estates if they are dead.

'The full and actual costs of the county and state for care and treatment of patients hospitalized at the state hospital shall be collected monthly by the county auditor from the patient or his estate or from relatives responsible by law for such patient's support in all instances where such patient or responsible relatives are financially able to pay. * * * If the person liable for the payment of costs as provided herein shall fail or refuse to pay such amount, the county auditor shall inform the county mental health board, and it shall direct the state's attorney to bring suit for the recovery of delinquent payments.'

Section 14-0910 NDRC 1943 makes it the duty of the father of a poor person who is unable to maintain himself by work to maintain such person to the extent of the father's ability.

Under the provisions of Section 25-0823 NDRC 1943 any person legally responsible for the support of a patient at the state school who is unable to pay for the care and support of the patient may apply to the county judge of the county from which the patient was admitted for a certificate to that effect. It does not appear that Edward Carl Berg during his lifetime ever secured such a certificate. On the other hand it does appear that the value of his estate is approximately $31,000.

When the father applied for the admittance of his son he presumably knew that the law made him responsible for the care and maintenance of the son under the provisions of Section 14-0910 NDRC 1943 if the son was unable to maintain himself. Bismarck Hospital v. Harris, 68 N.D. 374, 280 N.W. 423, 116 A.L.R. 1274. The father having the legal duty to care for and support his son, by his application secured the services of the state school to perform that duty for him. When the school furnished the care and maintenance which admission to the school entailed, the father's obligation to pay for those services was more than statutory. His application and the admission of his son pursuant thereto gave rise to a contract implied in fact which is the basis for the claims that are now filed against his estate. Whether claims such as those here presented may be said to arise upon a contract implied in law, in the absence of an application by the father, we find unnecessary to determine.

Section 30-1804 NDRC 1943 provides:

'All claims against the estate of a decedent arising upon contract, whether due, not due, or contingent, must be presented within the time limited in the notice to creditors and any claim not so presented is barred forever.'

Under stipulated facts it is clear that the claims were not presented within the time prescribed in the notice to creditors. They are barred if they are claims 'arising upon contract.' The care and maintenance of Clifford Berg were furnished by the state school at the request of his father who was legally bound to support him. The fact that Section 25-0822 provided for the father's liability and its extent does not destroy the contractual nature of the father's obligation. Its statutory and contractual attributes do not conflict and may exist side by side. Hays v. Bank of America National Trust and Savings Association, 71 Cal.App.2d 301, 162 P.2d 679. See also Carr v. Anderson, 154 Minn. 162, 191 N.W. 407, 26 A.L.R. 557; 17 C.J.S. Contracts Sec. 6. In Baird v. McMillan, 53 N.D. 257, 205 N.W. 682, 41 A.L.R. 177, this court treated the statutory superadded liability of the holder of stock in a...