Opinion
3-25-1958
DEPARTMENT OF MENTAL HYGIENE of the State of California, Plaintiff and Respondent, v. Laurence McGILVERY, Executor of the Estate of Annie Christabel Girard, Deceased, Defendant and Appellant. * L. A. 24830.
Carter, Young, Zetterberg & Henrie and Richard T. Young, Pomona, for appellant. Edmund G. Brown, Atty. Gen., and Ariel C. Hilton, Deputy Atty. Gen., for respondent.
DEPARTMENT OF MENTAL HYGIENE of the State of California, Plaintiff and Respondent,
v.
Laurence McGILVERY, Executor of the Estate of Annie Christabel Girard, Deceased, Defendant and Appellant. *
March 25, 1958.
Rehearing Granted April 24, 1958.
Opinion, 316 P.2d 46, vacated.
Carter, Young, Zetterberg & Henrie and Richard T. Young, Pomona, for appellant.
Edmund G. Brown, Atty. Gen., and Ariel C. Hilton, Deputy Atty. Gen., for respondent.
SHENK, Justice.
This is an appeal by the defendant Laurence McGilvery as executor of the estate of Annie Christabel Girard, deceased, from a judgment awarding to the plaintiff, the Department of Mental Hygiene of the State of California, the sum of $4,737 on a claim filed against the estate of the decedent.
In 1935 Joan McGilvery, daughter of the decedent was adjudged mentally ill and from that time has been confined in state hospitals and maintained and provided for by state agencies whose interests the Department of Mental Hygiene now represents.
When first confined Joan was married to Neil McGilvery, and their son Laurence, the defendant executor, was three years of age. In 1936 the husband disappeared and his whereabouts remain unknown. Joan's mother took Laurence into her home and provided for his support and education. In 1955 she died. Her will was admitted to probate and Laurence, then an adult, was named as executor. Other than a $1,000 trust fund for the benefit of Joan, the estate was left to Laurence.
It appears that at the time of Joan's commitment, Mrs. Girard was a single woman, 63 years of age. She owned a home in Oakland from which she had an annual income of approximately $200. She supplemented that income with her earnings as a nurse, found to be about $20 a month. The only evidence of her earnings between the time of Joan's commitment and Mrs. Girard's death relates to the last four years of her life. During those years she had an income of approximately $100 a month, $50 a month from an investment fund derived, apparently, from the sale of her home, and $50 a month from federal old age benefits. At her death her estate was appraised at $14,504.69. It increased to $18,984.69 during administration.
The claim presented by the Department of Mental Hygiene is for Joan's support and maintenance for the four year period immediately preceding Mrs. Girard's death. The executor rejected the claim and this action was commenced by the department to enforce its payment. There is no dispute as to the amount of the claim. The only question is the liability of the estate for its payment.
The department's claim is based upon legislation found in the Welfare and Institutions Code which provides for the care and maintenance of mentally ill persons. Section 6650 provides in its pertinent parts: 'The husband, wife, father, mother, or children of a mentally ill person * * * shall cause him to be properly and suitably cared for and maintained * * *. The husband, wife, father, mother, or children of a mentally ill person * * * and the administrators of their estates * * * shall be liable for his care, support, and maintenance in a state institution of which he is an immate. * * *' Section 6651 provides in part: 'The monthly rate for the care, support, and maintenance of all mentally ill * * * persons * * * at the state hospitals for the mentally ill where there is liability to pay for such care, support, and maintenance, shall be reviewed once each fiscal year and fixed at the state-wide average per capita cost of maintaining patients in all state rospitals for the preceding fiscal year, as determined by the Director of Mental Hygiene, and shall be payable in advance. * * * The Director of Mental Hygiene may reduce, cancel or remit the amount to be paid by the estate or the relatives, as the case may be, liable for the care, support, and maintenance of any mentally ill * * * person * * * who is a patient of a state hospital for the mentally ill, on satisfactory proof that the estate or relatives, as the case may be, are unable to pay the cost of such care, support, and maintenance. * * *' In section 6652, the Department of Mental Hygiene is given the authority to take such action as may be necessary to effect the collection of the charges mentioned in section 6650.
In section 6653 it is provided that 'The department shall, following the admission of a patient into a State hospital for the insane * * * make an investigation to determine whether the patient has any relative or relatives responsible under the provisions of Section 6650 for the payment of the costs of * * * maintenance, and shall ascertain the financial condition of such relative or relatives to determine whether in each case such relative or relatives are in fact financially able to pay such charges. * * *'
Following Joan's commitment an investigation was conducted regarding Mrs. Girard's financial circumstances. No charge or other exaction was attempted to be collected from her under section 6650 of the Welfare and Institutions Code, either at that time or during her lifetime.
It is claimed by the defendant that section 6650 does not impose on the persons named therein an absolute and unconditional liability for the support and maintenance of a mentally ill relative, but that liability is imposed only if the investigation mentioned in section 6653 reveals that those persons 'are in fact financially able to pay such charges.' It is obvious that the language of section 6650 cannot be considered alone, but that it must be considered with other sections in pari materia. County of Los Angeles v. Frisbie, 19 Cal.2d 634, 639, 122 P.2d 526. Section 6650 was enacted in 1937. It was based on the former Political Code section 2176. That section contained the provisions, now set forth in all material respects in sections 6652 and 6653, as well as 6650, including the provision that the department shall make an investigation to determine the financial ability of named relatives to pay the charges for the support and maintenance of the mentally ill. Under the circumstances sections 6650 and 6653 'shall be construed as restatements and continuations * * * and not as new enactments' (Welf. & Inst.Code, § 2), and are to be considered together. Accordingly we must look to the construction given section 2176 of the Political Code prior to 1937.
Section 2176 when first enacted in 1903 (Stats.1903, p. 505) clearly made ability to pay a condition of liability. It provided that '* * * the husband, wife, father, mother, or children of an insane person, if of sufficient ability * * * shall be liable for the care, support and maintenance of any insane person in a state hospital * * *.' In 1909 that section was modified and the words 'if of sufficient ability' were deleted. Stats.1909, p. 71. In 1921 the section was again modified by the addition of a second paragraph requiring an investigation into the financial circumstances of the responsible parties to determine whether they were 'in fact financially able to pay such charges' provided for in the first paragraph. Stats.1921, p. 1335. In 1931 a further amendment did not alter the provisions of the same section in any respect material to the present inquiry. Stats.1931, p. 322. It was in 1937 that the section was divided. The first paragraph, providing for charges as against responsible relatives, became section 6650 of the Welfare and Institutions Code. The second paragraph, providing for an investigation into the financial circumstances of responsible relatives, became section 6653 of the same code.
It is significant that the Legislature had first expressly specified the relatives who were responsible as those 'of sufficient ability' to pay and thereafter deleted that requirement. The defendant contends that regardless of the deletion, the Lunacy Commission, then performing the functions of the Department of Mental Hygiene, continued to use ability to pay as a criterion in making charges after 1909. It appears in several of the Commission's biennial reports to the Legislature that ability to pay was considered as a factor in determining whether the Commission enforced its monthly charges. (See Reports of the State Commission in Lunacy, Attorneys' Reports: Vol. 4, Appendix to Journals of Senate and Assembly of California, 41st Session (1915), p. 24; Vol. 6, Appendix to Journals of Senate and Assembly of California, 42nd Session (1917), p. 32; Vol. 1, Appendix to Journals of Senate and Assembly of California, 44th Session (1921), p. 19.) But there is nothing to indicate in either the statutes or in the administrative practices that ability to pay was a factor in determining liability for the charges after 1909. Likewise in 1921, when the provision for the investigation of the financial circumstances of responsible relatives was added there was no indication that the purpose of the added provision was to determine liability of relatives already made unequivocally liable. The language of the first paragraph of section 2176 and the change of the law in 1909 too clearly provided for the imposition of an initial liability to permit any other construction. The investigation provided for in the 1921 legislation must be deemed to serve some purpose and that purpose is apparent from companion sections first enacted in 1903. Section 2180 of the Political Code then enacted provided for the amount of monthly support to be paid by relatives of the mentally ill, and further provided that 'the medical superintendent of a state hospital for the insane shall, on the order of the commission, reduce or remit the amount to be paid by the estate or the relatives, as the case may be, liable for the care, support, maintenance and clothing of any insane person committed thereto and confined therein, on satisfactory proof that said estate or said relatives, as the case may be, are unable to pay the said sum * * *.' Stats.1903, p. 506. The foregoing has been carried through and appears today in its material aspects in section 6651 of the Welfare and Institutions Code above set out. The legislation of 1921, in providing for an investigation of financial circumstances of responsible relatives, was intended to furnish state agencies with knowledge sufficient to enable them to reduce or remit the amounts for which the relatives were liable if the circumstances justified it.
It therefore appears that while an unconditional liability is imposed, the amounts due thereunder may be reduced, remitted, or cancelled by administrative action. It may be assumed in the present case that Mrs. Girard, during her lifetime, was unable to pay the amounts for which she was obligated. However, mere inability to pay cannot of itself constitute a reduction, remission or cancellation of the obligation. As stated, proper consideration of the statutory provisions clearly indicates that the Legislature intended liability to attach regardless of ability to pay. It is true that the Director of Mental Hygiene (or his predecessor, the Director of Institutions) might have cancelled or remitted the amounts due, following an investigation and determination of inability to pay on the part of the deceased, in accordance with section 6651 of the Welfare and Institutions Code. But there is no evidence that such action was taken following the initial investigation. On the other hand it does appear that during the four years for which recovery is sought the Department of Mental Hygiene, through its director, made determinations as to the monthly rate for the care, treatment, support and maintenance of mentally ill patients and that the claim of the department filed in the present case was in accord with those rates. Mere failure to enforce the obligation cannot be deemed to constitute such administrative action as would result in modifying, remitting or cancelling the obligation, constructively or otherwise. The only effect of such failure, insofar as the obligation to pay is concerned, is to make unenforceable those portions of the obligation which, in accordance with the applicable statute of limitations (Code Civ.Proc. § 345), were outstanding for more than four years.
The plaintiff relies on a decision of the Appellate Department of the Superior Court. Department of Mental Hygiene v. Shane, 142 Cal.App.2d Supp. 881, 299 P.2d 747. In that case a father did not have the ability to pay for the support of his son, an inmate in a state hospital. Nevertheless his estate was held liable in an action against the executor, although no attempt had been made to collect the amounts due from the father during his lifetime. The present case cannot be distinguished from that case. Decisional law in other states is based on legislative enactments not the same as those here involved and for thar reason are not controlling.
It is contended by the defendant that our statutory provisions provide 'only for prospective collection, in advance, by order duly made and modifiable.' This argument necessarily assumes that the obligation to pay was extinguished or rendered uncollectible upon the death of the decedent. Neither assumption may properly be made. If the statute be construed to provide for collection only in advance the obligation would be destroyed upon the death of the decedent. This would lead to the curious assumption that the obligation expressly imposed by section 6650 on the administrators of the estates of responsible relatives must be satisfied by collection prior to their death. The argument further assumes that an order must be made before the obligation is collectible. But the obligation to pay was unconditionally created by statute upon Joan's commitment, and no administrative order was required to perfect it. It continued in the absence of effective administrative action to modify, remit or cancel it. Thus it cannot be said that after Mrs. Girard's death the state purported for the first time to create an obligation to pay for Joan's maintenance. Nor can it properly be contended that the amounts due from an estate for past obligations within the period of limitations are uncollectible from the later acquired assets of the estate. In Re Estate of Phipps, 112 Cal.App.2d 732, 247 P.2d 409, 412, 33 A.L.R.2d 1251, the Department of Mental Hygiene brought an action under section 6655 of the Welfare and Institutions Code against the estate of an incompetent for care and maintenance furnished prior to his acquisition of the estate. It was contended that there was a legislative intent to limit liability to those obligations which arose after the acquisition of assets by the estate. The court held that 'Section 6658, which provides that the department may bring an action to enforce payment for a patient's care against any person, guardian or relative, does not limit such action to a situation in which the judgment is collectible.' While the provisions of the law applicable to the present case are not quite the same as those there involved they are found in the same article of the Welfare and Institutions Code and require a consistent construction.
Likewise there is no merit in the contention that the department has waived its right by its failure to make a prior demand for payment, or that it is now estopped from demanding payment. In Re Estate of Fassetta, 14 Cal.App.2d 239, 57 P.2d 1336, 1337, it was claimed that 'the director (of the Department of Institutions) is estopped to present said demand on account of leading the guardian to understand that no demand of the kind would be made, but that the same was waived.' There, as here, the defendant relied upon the state's silence over the years; but there was no proof that the state gained any advantage by its conduct, or that the defendant changed his position or suffered any disadvantage in reliance upon the claimed waiver, and the court affirmed a judgment for the Department of Institutions. Nor, is the action barred by laches. '(T)here can be no laches in delaying the bringing of an action if it is brought within the period of limitation * * *, unless there are some facts or circumstances attending the delay which have operated to the injury of the defendant.' Meigs v. Pinkham, 159 Cal. 104, 112 P. 883, 886; see also Burns v. Ross, 190 Cal. 269, 278, 212 P. 17; Handyspot Co. of Northern California v. Buegeleisen, 128 Cal.App.2d 191, 195-196, 274 P.2d 938; 18 Cal.Jur.2d 208. In the present case there is no substantial evidence of injury to the defendant occasioned by the delay in bringing the action.
From time immemorial it has been the natural primary obligation of the parent to bear the financial burden of caring for an afflicted child. In this humanitarian age the state has assumed that obligation in the absence of the parent's ability to do so. This fact has not, however, entirely abolished the parental obligation. It has done so only to the extent provided by statute. There is no apparent reason why the state should not provide that the parent's financial responsibility created during her lifetime should continue as an obligation of her estate. The fact that, because of circumstances, the obligation created during her lifetime was not then collected did not extinguish it as a valid claim against her estate in an amount within the statute of limitations.
The judgment is affirmed.
GIBSON, C. J., and CARTER, TRAYNOR, SPENCE and McCOMB, JJ., concur.
SCHAUER, Justice (dissenting).
I cannot agree that the liability set forth in section 6650 of the Welfare and Institutions Code is unconditional regardless of ability to pay. The Welfare and Institutions Code, with its comprehensive provisions for the liability of responsible relatives to the appropriate public agency for the support of the needy, is the measure of such liability; its sections, read together, constitute a complete system which occupies the field of such liability. (See County of San Bernardino v. Simmons (1956), 46 Cal.2d 394, 399, 296 P.2d 329; County of Contra Costa v. Lasky (1954), 43 Cal.2d 506, 509, 275 P.2d 452.) When the pertinent portions of the code are read together it appears that the liability of the responsible relatives stated in section 6650 is subject to the condition, stated in section 6653, that investigation disclose that 'such relative or relatives are in fact financially able to pay such charges.'
There was, in effect, a determination by the department during Mrs. Girard's lifetime that she need not pay any amount for the care and maintenance of Joan, as evidenced by the failure to make any charge for such care and maintenance after investigation of Mrs. Girard's financial circumstances. This determination was, in effect, a remission of the conditional liability which would have attached only in the event of a determination that Mrs. Girard was 'financially able to pay such charges.'
Section 6651 of the code provides that 'The Director of Mental Hygiene may reduce, cancel or remit the amount to be paid by the estate or the relatives, as the case may be, liable for the care * * * of any mentally ill or insane person * * * who is a patient of a state hospital for the mentally ill, on satisfactory proof that the estate or relatives, as the case may be, are unable to pay the cost of such care.' The power to 'reduce, cancel or remit' appears correlative to the power to impose, and where liability is not imposed during the lifetime of the responsible relative it does not appear consonant with legislative intent to seek to impose such liability after the responsible relative's death.
I would not analogize In re Estate of Phipps (1952), 112 Cal.App.2d 732, 247 P.2d 409, 33 A.L.R.2d 1251 (majority opinion, 323 P.2d at page 69). The question there was the liability of the estate of an incompetent for care furnished the incompetent at a state hospital prior to the acquisition of any estate by the incompetent. It may fairly be said that the liability of the estate of the incompetent under section 6655 of the Welfare and Institutions Code, once the incompetent has died, is 'unconditional' as opposed to the liability of the estate of a responsible relative under sections 6650, 6651, and 6653. In the Phipps case it is said (at page 735 of 112 Cal.App.2d, at page 411 of 247 P.2d) that 'The liability of both (the estate of the incompetent and the responsible relatives) is there, although there may be no collectibility due to absence of estate or funds.' This statement appears too broad insofar as it indicates that the estate of a responsible relative would be liable even though during the lifetime of the relative there was no determination of ability to pay.
From what has been said it is apparent that I disagree with Department of Mental Hygiene v. Shane (1956), 142 Cal.App.2d Supp. 881, 299 P.2d 747 (majority opinion, 323 P.2d at page 69). There, there was no evidence that the department ever made demand upon the decedent, during his lifetime, for the support of his insane son. After his death the department filed a claim in his estate. The court said (at page 883(1) of 142 Cal.App.2d Supp., at page 749 of 299 P.2d), 'We don't see any connection between the fact that the decedent did not have the ability to pay for his son, the inmate, while he was living and the fact that his estate would be liable.' However, it appears that there is a connection between the fact that the department was not shown to have made claim to payments and established the ability of the decedent to make such payments during the period for which support was sought rather than waiting to make claim therefor after the asserted liability had accrued and the responsible relative had died.
As stated in the majority opinion (323 P.2d at page 67), section 2176 of the Political Code when enacted (Stats.1903, p. 505) 'clearly made ability to pay a condition of liability.' It provided, in material part, that 'The husband, wife, father, mother, or children of an insane person, if of sufficient ability, * * * shall be liable for the care, support and maintenance of any insane person in a state hospital for the insane * * *' (Italics added.) When the Legislature deleted the phrase 'if of sufficient ability' in 1909 (Stats.1909, p. 71) it added to the Political Code a form of commitment which expressly provided for a statement of financial ability (Pol.Code, § 2170, Stats.1909, p. 70). And in 1921, as the majority opinion points out, the Legislature added to section 2176 of the Political Code the provision that 'The commission shall * * * make an investigation to determine whether the patient has any relative or relatives as mentioned in this section, and who are herein made responsible for payment for the care * * * of such patient, * * * and shall ascertain the financial condition of such relative or relatives, to determine whether in each case such relative or relatives are in fact financially able to pay such charges.' (Stats.1921, p. 1335.) It thus appears that the Legislature has always had in mind financial ability as a condition of the liability of responsible relatives.
For the reasons above stated, I would reverse the judgment. --------------- * Opinion vacated 329 P.2d 689.