State v. Whitver

• Citation: 3 N.W.2d 457,71 N.D. 664
• Decision Date: 29 April 1942
• Docket Number: 6765.
• Parties: STATE v. WHITVER.
• Court: United States State Supreme Court of North Dakota

3 N.W.2d 457

71 N.D. 664

STATE v. WHITVER.

No. 6765.

Supreme Court of North Dakota

April 29, 1942

Syllabus by the Court.

1. A debt incurred by a husband to the State on account of a cash grant of old age assistance, is not a debt incurred for necessary household supplies of food, clothing, fuel and shelter for which his wife is liable under the provisions of Section 4414, Supplement to the Compiled Laws of N.D.1913.

2. The obligation imposed upon a wife by Section 4409, Compiled Laws of N.D.1913, to support her husband out of her separate property when he has no separate property and is unable from infirmity to support himself is a conditional obligation which does not fall upon the wife unless she has means to furnish support.

3. Where wife was under no obligation to support her husband during the time he was receiving old age assistance, the fact that she acquired some property after his death would not operate to create an obligation for support which would relate back to the time the assistance was furnished.

F J. Graham, of Ellendale (John E. Williams, of Bismarck, on the brief), for appellant.

C J. Serkland, of Fargo, for respondent.

BURKE, Judge.

In this action, the State of North Dakota sued the defendant Whitver as administrator of the estate of Emily Eliza Counsell deceased, to recover the sum of $251 and interest for old age assistance granted to James B. Counsell, husband of the deceased, during his lifetime.

James Counsell and Emily Counsell, his wife, were in 1936 residents of Dickey County, aged eighty-five and sixty-nine years respectively and unable to support themselves. On May 15, 1936, they both made application to the Dickey County Welfare Board for old age assistance. At that time their sole property consisted of a residence of which Emily Counsell was the record owner and a life insurance policy upon the life of James Counsell in the sum of $1,500. The residence was mortgaged for its approximate value. This mortgage has since been foreclosed and there is no equity of redemption. The policy of insurance was not paid up and the premium thereon was $5.33 per month.

Both applications were granted and commencing with June, 1936, James Counsell and Emily Counsell each received old age assistance in the amount of $18 per month. In December, 1936, the amount paid to James Counsell was increased to $25 per month, at which rate, payment was continued until his death, the last payment having been made in May, 1937. Upon the death of James Counsell, Emily Counsell received the sum of $1,258 as the beneficiary of his life insurance policy. Thereafter she continued to receive old age assistance at the same monthly rate until her death in September, 1938. In all the sum of $251 was paid as old age assistance to James Counsell and $486 to Emily Counsell. At the time of Emily Counsell's death there remained of the proceeds of the insurance upon her husband's life, the sum of $830. After the appointment of the defendant, Whitver, as administrator of Emily Counsell's estate, the Public Welfare Board caused separate claims to be filed against her estate, in the name of the State of North Dakota for the amount of the old age assistance given to her and for the amount given to her husband. The defendant administrator allowed the claim for the assistance given to Emily Counsell and disallowed the claim for assistance given to her husband. Upon receiving notice of the claim's disallowance plaintiff brought this suit thereon in the District Court of Dickey County. Trial of the case resulted in a judgment for the defendant for the dismissal of the action. Plaintiff has appealed from the judgment.

There is but one question in the case. Do the statutes of this State impose a liability upon an indigent wife for old age assistance furnished by County and State Welfare Boards to her husband? Plaintiff claims that such a liability exists and predicates its claim upon section 4409, subsection 2 of section 4414 Supp.C.L.1913, and section 21 of chapter 211, Laws of N.D.1937. These statutes are as follows:

Section 4409: "The husband must support himself and his wife out of his property or by his labor. The wife must support the husband when he has not deserted her out of her separate property, when he has no separate property and he is unable from infirmity to support himself."

Subsection 2 of section 4414: "The earnings of the wife are not liable for the debts of the husband and the earnings and accumulations of the wife and of her minor children living with her, or in her custody, while she is living separate from her husband, are the separate property of the wife provided, however, that husband and wife shall be jointly and severally liable for any debts contracted by either while living together, for necessary household supplies, of food,...