Opinion
No. 222220
Decided March 7, 1967.
Public welfare — Aid for the aged — Section 5105.13, Revised Code — Both spouses received aid — Debt of the estate of each — Total amount paid to both — Time of payment not relevant.
Where both husband and wife received aid for the aged, under Section 5105.13, Revised Code, the estate of the surviving wife is liable for amounts paid to the husband, although the wife received no payments until several years after her husband's death, since her application for aid was made, subject to the condition of that section that such liability results from the acceptance of aid.
Mr. William B. Saxbe, attorney general, and Mr. Charles R. Derson, for plaintiff.
Mr. Quentin H. Derryberry, for defendant.
AGREED STATEMENT OF FACTS
1. David Augsburger and Saloma Augsburger were legally married.
2. David Augsburger died September 16, 1943.
3. Saloma Augsburger died April 15, 1963.
4. David Augsburger received $1,865.17 aid from the state of Ohio through its Aid for the Aged Program, administered by the Department of Public Welfare. This aid was rendered from May, 1935 through September, 1943.
5. Saloma Augsburger received $72.50 aid from the state of Ohio through its Aid for the Aged Program administered by the Department of Public Welfare. This aid was rendered from June, 1948 through October, 1948.
6. Claim by the state of Ohio for aid rendered David Augsburger was duly presented in his estate.
7. David Augsburger's estate was commenced April 12, 1961, and was closed with no reimbursement available to the state of Ohio for its aid rendered the decedent.
8. Saloma Augsburger received $2,489.71 from the estate of David Augsburger as her year's allowance and exempt property.
9. Saloma Augsburger's estate was commenced March 19, 1964.
10. A claim for aid rendered to David and Saloma Augsburger was duly presented to the administratrix of the estate of Saloma Augsburger. The claim for aid rendered David and Saloma Augsburger was disallowed by the administratrix. Within the allowed time a suit was filed by the attorney general's office on behalf of the Department of Public Welfare in the Franklin County Common Pleas Court to have the aid rendered David and Saloma Augsburger adjudged a valid claim in the estate of Saloma Augsburger.
11. The administratrix for the estate of Saloma Augsburger has filed a general denial as answer to the allowance claim suit filed in the Franklin County Common Pleas Court.
MEMORANDUM
Now comes the Attorney General of Ohio on behalf of the Department of Public Welfare.
This case involves the issue of whether a claim for aid rendered to a recipient and her spouse under the Aid for the Aged Program should be allowed as a valid claim in recipient's estate.
Per the agreed Statement of Facts the recipient, Saloma Augsburger, received $72.50 of aid from June, 1948 through October, 1948. Saloma's spouse, David Augsburger, who was also a recipient of Aid for the Aged received aid of $1,865.17 from May, 1935 through September, 1943.
David Augsburger died in September, 1943 prior to any aid rendered Saloma. Thus, a claim for $1,865.17 was presented in David's estate by the state of Ohio.
The state of Ohio did not receive any reimbursement out of David's estate due to other prior claims, such as the widow's exemption to Saloma for $2,489.71, having priority.
Saloma died in April, 1963 and her estate was commenced in March, 1964. A claim by the Department of Public Welfare for aid rendered both Saloma and David was presented in Saloma's estate and was rejected. This suit for allowance of the claim was then duly filed.
Per the Statement of Facts, David and Saloma were legally married.
The state's claim is based on Sections 1359-7 of the General Code and 5105.13 of the Ohio Revised Code.
The above sections in force at the pertinent dates are as follows:
Section 1359-7, General Code — Year 1935 (Beginning of Aid)
"Upon the death of a person, the total amount of aid paid to him under this act and to his or her spouse, with interest thereon at four per centum per annum, shall be a debt of the estate of such deceased person; and it shall be the duty of the Division to present claims to the administrator or executor, if any, to bring suits and to take any other proper action to secure reimbursement from the estate and property of such deceased person.
"* * *."
Section 1359-7, General Code — Year 1943 (David's Death)
"Upon the death of a person, the total amount of aid paid to said person and to his or her spouse under this act shall be a preferred claim against the estate of such deceased person, having priority and preference over all unsecured claims except the bill of the funeral director not exceeding two-hundred dollars, the expense of last illness and those of administration and the allowance made to the widow and children for their support for twelve months.
"* * *."
Section 1359-7, General Code — Year 1947 (Amendment effective September 26, 1947)
"Upon the death of a person the total amount of aid paid to said person or to his spouse or either or both of them under this act shall be a preferred claim against the estate of such deceased person having priority and preference over all unsecured claims, except a sum for the payment of the burial expenses of the recipient, which sum shall be computed by deducting from two hundred and fifty dollars whatever amount the division has expended for the same purpose from the proceeds of other property or insurance which the recipient trusteed to the division, costs of administration, taxes, statutory exemption of surviving spouse, costs of last illness and the allowance made to the widow and minor child or children, or if there be no widow, to the minor child or children for their support for twelve months.
"* * *."
Section 5105.13, Revised Code — Year 1963 (Saloma's Death)
"Upon the death of a person the total amount of aid paid to said person, his spouse, or either or both of them under Sections 5105.01 to 5105.29, inclusive, Revised Code, shall be a preferred claim against the estate of the deceased. Such claim shall have priority over all unsecured claims, except a sum for the payment of the funeral and burial expenses of the person, which sum shall be computed by deducting from three hundred dollars whatever amount the division of aid for the aged has extended for the same purpose from the proceeds of other property or insurance which the recipient trusteed to the division, costs of administration, taxes, statutory exemption of surviving spouse, costs of last illness, and the allowance made to the widow and minor children, or if there is no widow, to the minor children for their support for twelve months. In computing the amounts paid under Sections 5105.01 to 5105.29, inclusive, Revised Code, to a person for the purposes of Section 5105.13, Revised Code, no deduction shall be made of amounts paid by means of federal aid."
Per the above statutes a recipient receiving aid is liable both for their aid and any aid rendered their spouse prior to recipient's death.
Admittedly some cases such as Division of Aid for the Aged v. Hogan, 143 Ohio St. 186, have held a nonrecipient, prior to 1947, was not liable for aid rendered their spouse.
The amendment in 1947 to Section 1359-7, General Code, even made a nonrecipient liable for aid rendered their deceased spouse after 1947. In Division of Aid for the Aged v. Breskvar, 155 Ohio St. 15, the court decided such when it stated:
"Prior to such amendment the estate of the widow would not have been liable for aid paid to her husband."
The Breskvar case involved a nonrecipient widow who was predeceased by her husband, a recipient.
In the case at hand though both husband and wife were recipients and, thus, liability has always existed to the latest deceased spouse for aid rendered both recipients, Division of Aid for the Aged v. Wargo, 48 Ohio Law Abs. 47, Hauser v. Ebinger, 161 Ohio St. 192.
The Wargo case in syllabus paragraph number 2 states:
"Where both husband and wife received payments from the Division of Aid for the Aged upon the death of the survivor, his or her estate is found to respond to the state for aid furnished to both by virtue of Section 1359-7, General Code."
Note the Wargo case was decided on February 24, 1947, which is prior to the 1947 amendment. Thus, even prior to the amendment if a person was a recipient they were liable for both their own and their spouse's aid.
THEREFORE, plaintiff prays the claims for both the aid rendered David Augsburger and Saloma Augsburger be allowed as a valid claim in the Estate of Saloma Augsburger.
MEMORANDUM (CONTRA)
Now comes Quentin M. Derryberry, attorney for the administratrix of the estate of Saloma Augsburger, deceased. It is readily admitted that the amount of money which was paid to Saloma Augsburger in 1948 in the sum of $72.50 is a valid claim against the estate of Saloma Augsburger and should be paid.
The claim on behalf of the plaintiff for the money paid to David C. Augsburger from 1935 to 1942 in the total amount of $1,865.17 should not be allowed against the estate of Saloma Augsburger, for the reason that the statute Section 5105.13, Revised Code, does not operate retroactively. In the case of Division of Aid for the Aged v. Berskvar, Executrix, 155 Ohio St. 115, the facts were very similar to this case. In the Berskvar case, the money was paid over a period from January 1939 to March 1945, the recipient dying in April 1945 survived by his widow. In this case the aid was paid to David C. Augsburger from May 1935 to September 1943. Mr. David Augsburger died September 16, 1943. The court and the Berskvar case said that recovery was dependent upon the application of the facts and upon the application of Section 5105.13, Revised Code, as amended September 26, 1947. The court further said "prior to such amendment, the estate of the widow would not have been liable for the aid paid to her husband." The court further said on page 16, "thus the question presented is whether the section as amended operates retroactively.
"This court is of the opinion that the statute does not operate retroactively to make liable an estate of a deceased spouse of a recipient where the aid was paid prior to the effective date of such amended statute."
This is the same case we have here in the Augsburger case. All of the aid in the Augsburger case was paid prior to September 1943, which was long before the amendment of the statute in 1947 or the statute as presently amended. We must look at the statute as it was at the time of David Augsburger's death in order to determine the validity of the claim. The statute which was in effect in 1943 was not the same as the one which was amended in 1947 and again in 1966. The Supreme Court of Ohio in the Hogan case, 143 Ohio St. 186, pointed out that the law which was in effect in 1944 was ambiguous and indefinite and being a statute creating a liability, should be strictly construed in favor of the one sought to be subjected to its terms. The case of Hausser v. Ebinger, 161 Ohio St. 192, cited by the attorney for plaintiff can be distinguished from this case in that in the Hausser case the court is faced with the question of the right to be reimbursed from her husband's estate for money or property contributed by her to the family use, or for expenditures voluntarily made by her in the absence of an agreement for reimbursement.
Therefore, the defendant prays that the claim of the plaintiff on behalf of David C. Augsburger be disallowed and the claim of the state on behalf of Saloma Augsburger be allowed as a valid claim in the estate of Saloma Augsburger, deceased.
REPLY-MEMORANDUM
Now comes the Attorney General of Ohio on behalf of the Department of Public Welfare in reply to defendant's memorandum.
The defendant cites the Breskvar case, 155 Ohio St. 15, as deciding that the 1947 amendment is not retroactive to 1947. He is correct in his view, however, we must realize the Breskvar case involved the liability of a nonrecipient for her spouse's aid received from the Aid for the Aged Program. The Augsburger case involves the liability of a recipient for both her and her spouse's aid. As stated in our prior memorandum the Wargo case and the statutes have conclusively determined that liability has existed since the beginning of the program in 1935 for aid rendered a recipient's spouse.
Thus, we must acknowledge the Augsburger and Breskvar cases as differing on their facts regarding the status of the liable party, whether a recipient or nonrecipient.
Defendant cites the Hogan case, 143 Ohio St. 186, as construing the law as ambiguous. We must not forget the Hogan case involved the liability of a nonrecipient prior to 1947 and the court's mention of strict construction of the statute was in regard to the nonrecipient's liability.
Also, the Ebinger case, 161 Ohio St. 192, mentioned by defendant, determined the liability of the parties and also which estate is primarily liable as stated in syllabus 1:
Under Section 1359-7, General Code (Section 5105.13, Revised Code), a married person in applying to the state for aid for the aged thereby obligates his or her estate, upon death, to repay the state, not only the amount of such aid received by him or her but also the amount of aid, if any, received by his or her spouse, and the statutory obligation to repay the aid furnished to the spouse is in the nature of a suretyship obligation without consideration moving directly to such married person, but, where the estate of the spouse is sufficient to repay the aid so furnished to such spouse, the married person or his or her estate is entitled to exoneration as to such aid.
Therefore, plaintiff prays its claim for aid rendered both Saloma and David Augsburger be allowed as a valid claim in the Estate of Saloma Augsburger.
DECISION
GESSAMAN, J. This case has been submitted to the court upon the pleadings, an agreed statement of facts and the briefs of counsel.
The plaintiff seeks to recover from the defendant, who is the administratrix of the estate of Saloma Augsburger, deceased, not only the amount of aid paid by plaintiff to Saloma Augsburger, but also the aid paid to the latter's husband, David C. Augsburger. The amount paid to Saloma Augsburger is $72.50 and this amount is not in dispute. The amount paid to David C. Augsburger is $1865.17. The defendant does not deny that this amount was paid to David C. Augsburger but she does contend that the estate of Saloma Augsburger is not liable for its repayment.
David Augsburger applied for aid and received aid in the above amount from May, 1935, through September, 1943. He died on September 16, 1943. The administration of his estate was commenced on April 12, 1961. His widow, Saloma Augsburger, received $2489.71 as her year's allowance and exempt property but there were no assets left from which the plaintiff could be reimbursed.
Saloma Augsburger received aid from the plaintiff from June, 1948, through October, 1948. She died on April 15, 1963. The administration of her estate was commenced on March 19, 1964. The plaintiff presented to the defendant executrix a claim for the amounts paid to both David and Saloma Augsburger. The claim was rejected and this suit was filed.
Since 1935, when aid for the aged began, there has been a statutory provision in Ohio law substantially as follows:
"Upon the death of a person, the total amount paid to him under this act and to his or her spouse, * * *, shall be a debt of the estate of such deceased person; * * *." Section 1359-7, General Code.
In 1943 this section was amended to provide, inter alia, that the "debt" be a "preferred claim" with certain exceptions. With some changes in wording, this has been and still is the pertinent provision of the law which is now known as Section 5105.13, Revised Code.
In 1944, the Supreme Court in Division of Aid for Aged, etc. v. Hogan, 143 Ohio St. 186, held that the above statute is ambiguous and indefinite and therefore must be strictly construed in favor of the one sought to be subjected to its terms. Under such construction, the court held that "where the husband has received aid but his wife has not, no claim for aid furnished the husband may successfully be made against the wife's estate, in the absence of an agreement on her part to be bound." In the instant case, however, the wife, Saloma, has received aid.
The statute involved was again before the Supreme Court in 1954 in Hausser, Exr., v. Ebinger, Sr., Exr., 161 Ohio St. 192. This was an action for a declaratory judgment brought by the executor of the wife's estate against the executor of the husband's estate. The facts are that both husband and wife had received aid from the state. The husband received aid from December, 1945, through November 30, 1948, while the wife received aid from December 11, 1945, through December 31, 1950. At page 195 of the opinion, the court said:
"Simultaneously, they each individually made application for aid and under the statute thereby pledged their separate estates for the amount received by each of them. Clearly, the statutory obligation of the estate of the husband under the statute to reimburse the state for aid paid to his wife was in the nature of a secondary or suretyship liability, the primary liability for the aid to the wife resting upon her estate."
But the facts in the instant case are not as simple as those in the Hausser case. As we have observed, Mr. Augsburger received aid from May, 1935, through September, 1943. He died on September 16, 1943, but administration of his estate was not commenced until April 12, 1961. There was nothing in his estate with which to reimburse the state.
Saloma Augsburger did not receive aid until June, 1948, and it continued through October, 1948. Query: does the fact that Mrs. Augsburger applied for and received aid in 1948, bring her under the statute and make her estate liable for aid paid to her husband several years earlier? No case has been cited to the court which has the same fact pattern and we have found none.
The statute presently in effect and the 1947 amendment to Section 1359-7, General Code, do not contain any provision either that the aid shall be paid simultaneously or that the applications of husband and wife must be made simultaneously to cause the application of their provisions. It happened that in the Hausser case the husband and wife made application simultaneously but the court pointed out that "they each individually made application for aid."
In Division of Aid for the Aged v. Wargo, Exr., 48 Ohio Law Abs. 47 (Court of Appeals, Cuyahoga County), husband and wife appear to have received aid simultaneously. At page 53 the court had this to say:
"In the instant case, however, both the husband and wife received aid from the Division of Aid for the Aged. It thus differs from the case decided in 143 Ohio St. 186. Undoubtedly the state of Ohio has the right to establish the terms and conditions on which it furnishes aid. By Section 1359-7, General Code, it clearly appears that when aid is paid to any person, then such aid together with aid `to his or her spouse under this act' shall be a preferred claim against the estate of such person. When Mary Wargo received aid she received it under the conditions of Section 1359-7, General Code, and we think the trial court was right in holding that her estate is bound to respond to the state for aid furnished her husband, provided the statutes as to administration of estates are complied with."
The latter part of this statement is quite significant. That is to say " When Mary Wargo received aid she received it under the conditions of Section 1359-7, General Code," and her estate became liable for the amount paid to her husband. No point was made that either the application had to be filed simultaneously or that the aid had to be paid simultaneously. Nor was any such point made by the Supreme Court in the Hausser case, supra. That court did observe that husband and wife " each individually made application for aid." The point of time of making the applications does not appear to be significant.
It is true that under the rule of the Hogan case, supra, the estate of Mrs. Augsburger would not have been liable for the aid paid to her husband if she had died prior to receiving aid from the state. But the fact is that she did apply for and received such aid and it is our opinion that by such act she brought her estate under the law then in effect and/or the present law.
It is our opinion that the estate of Saloma Augsburger is liable not only for the amount paid to Mrs. Augsburger, but also for the amount of aid paid to Mr. Augsburger and we so find.
Judgment may be entered for the plaintiff against the defendant as prayed for in the petition.
Judgment for plaintiff.