State Dept. of Social Welfare v. Dye, 45576

• Decision Date: 07 March 1970
• Docket Number: No. 45576,45576
• Citation: 466 P.2d 354,204 Kan. 760
• Parties: STATE DEPARTMENT OF SOCIAL WELFARE of Kansas, Appellee, v. Everett A. DYE, Administrator with Will Annexed of the Estate of Bertha Dye Lacen, Deceased, Appellant.
• Court: Kansas Supreme Court

Page 354

466 P.2d 354

204 Kan. 760

STATE DEPARTMENT OF SOCIAL WELFARE of Kansas, Appellee, v. Everett A. DYE, Administrator with Will Annexed of the Estate of Bertha Dye Lacen, Deceased, Appellant.

No. 45576.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. Under the provisions of K.S.A. 39-719a it is held to be erroneous to allow a claim of the state department of social welfare against a deceased wife's estate for welfare assistance furnished to her predeceased husband prior to their marriage.

2. The portion of K.S.A. 39-719a providing that 'on the death of the survivor of a married couple, either or both of whom received such assistance, the total amount paid assistance to either or both, shall be allowed as a claim against the estate of such person or persons' is construed and on the facts related in the opinion held to authorize recovery of only such assistance as was furnished to either or both of a married couple during the marriage relationship, and on the death of the survivor a claim for such assistance furnished to either or both of a married couple during the marriage relationship shall be allowed as a claim against the estate of the survivor.

3. Where a statute is ambiguous and indefinite as to the liability of the estate of one spouse for welfare assistance furnished to the other, the statute, being one to create a liability, should be strictly construed in favor of the party sought to be subjected to its terms.

Glenn J. Shanahan and John W. Jordan, Wichita, were on the brief, for appellant.

W. B. Kirkpatrick, Topeka, argued the cause, and Charles V. Hamm, Topeka, was with him on the brief, for appellee.

SCHROEDER, Justice:

The question presented by this appeal is whether welfare assistance furnished to the predeceased husband of a wife prior to their marriage can be recovered by the state department of social welfare from the deceased wife's estate under the authority of K.S.A. 39-719a.

The facts in this case are not in dispute.

Bertha Dye and Thomas Lacen were married on March 10, 1962. Prior to their marriage Thomas Lacen had been the recipient of welfare assistance in the amount of $1,585.28. Following the marriage Thomas Lacen was removed from welfare assistance and support was provided by his wife, Bertha Dye Lacen, until shortly before his death in 1967, when the husband, Thomas Lacen, was provided further welfare assistance in the amount of $178.22, which was the total assistance furnished to the husband during the marriage of the couple. Just prior to Bertha's death on June 28, 1967, she was also furnished some assistance in the amount of $364.72. The state department of social welfare filed in the estate of the wife, who survived the husband, its petition for the allowance of its demand. The petition sought the recovery of $364.72 for assistance furnished to the deceased wife and for $1,763.51 for assistance furnished to the deceased husband. The latter included $178.23 for assistance furnished to the husband during the marriage of the couple and $1,585.28 for assistance furnished to the husband prior to the marriage of the couple.

The probate court allowed the claim of the state department of social welfare in the amount of $364.72 for assistance furnished to the deceased wife, and for $178.23 for assistance furnished to the predeceased husband during the marriage of the couple, but it did not allow the claim in the sum of $1,585.28 for assistance furnished to the husband prior to the marriage of the couple. On appeal the district court allowed the claim of the state department of social welfare in full, including the claim for assistance provided to the predeceased husband prior to the marriage.

Appeal has been duly perfected to this court from such order. The only issue presented is the allowance of the claim against the deceased wife's estate for the amount of assistance furnished to the husband prior to the marriage of the couple.

The reasoning of the trial court was stated in a memorandum as follows:

'About the only decision which is at all enlightening is In re Estate of Schwarz, 197 Kan. 267, 416 P.2d 760, and that strikes down defendant's contention that the Married Women's Property Act, specifically K.S.A. 23-201, is a bar to plaintiff's claim. Now it is true that such defense was not asserted in the Schware case, but the Court did place the stamp of its approval on the recovery statute, K.S.A. 39-719a, and the rationale of that decision compels the conclusion that whatever part of K.S.A. 23-201 may be inconsistent with the provisions of K.S.A. 39-719a was repealed by necessary implication when the latter statute was enacted.

'Neither do the facts of the Schwarz case make that holding direct authority on the proposition which we must decide here, for there is nothing to indicate that any part of the claim was for assistance furnished to the decedent's spouse prior to the marriage. Nevertheless, the reasoning of the majority opinion is such that no distinction can be drawn on that basis, and this court finds that the language of the statute itself does not make any distinction or exception to the liability of the estate of a surviving spouse for assistance furnished to the partners to the marriage and either of them.'

In the absence of a statute conferring upon the state the right to recover for welfare assistance the sum advanced to a recipient, there could be no recovery at all. (81 C.J.S. Social Security and Public Welfare §§ 8, 29, 30 and 33.)

Kansas does have such statute which is K.S.A. 39-719a. The issue here presented involves the construction of this statute, which has heretofore been considered in the case of In re Estate of Schwarz, 197 Kan. 267, 416 P.2d 760.

The trial court properly recognized the Schwarz decision did not decide the particular question here presented because nowhere does it appear in the Schwarz opinion that any of the welfare assistance paid to the predeceased husband was made prior to the marriage. The Schwarz decision is based upon the proposition that all of the welfare assistance paid to the husband was paid during the marriage of the couple.

K.S.A. 39-719a reads:

'(1) On the death of any recipient of assistance, the total amount of assistance paid or (2) on the death of the survivor of a married couple, either or both of whom received such assistance, the total amount paid assistance to either or both, (3) shall be allowed as a claim against the estate of such person or persons as a fourth class claim. (4) No such claim shall be enforced against the real estate of the recipient or the real estate of a person who has been a recipient while it is occupied by the recipient's surviving spouse or by any dependent child of such recipient or any dependent child of such surviving spouse.'

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