Department of Revenue v. Linstead

Bushnell, J. In Mr. Justice Sharpe’s opinion there appears a quotation from the finding of the trial judge. The matter which is deleted therefrom and which immediately follows the first paragraph of the quotation is of importance. In giving his reasons for the finding that the said decedent was “not of such sufficient ability,” the trial judge said: “This court’s answer to the first of questions hereinbefore stated is in the negative. In reaching this factual conclusion the court, among other things, holds that a man in his later years is entitled to and it is wise that he does make some provisions for his maintenance in his old age. To rule otherwise would be to invite further additions to our already overloaded welfare rolls. In this connection it is also interesting to note the considerable amount of prop [661] erty and assets that a naan may own and possess and still qualify under the proper statute for old-age assistance (CLS 1952, § 400.27, Stat Ann 1953 Cum Supp § 16.427). Certainly a man should be allowed to possess more of such property and assets before he is required to support someone else for whom under the common law he was not liable.” Further observations were made as follows: “The statute in question (CLS 1952, § 330.21, Stat Ann 1953 Cum Supp § 14.811) under which the appellees herein seek to impose liability on the estate of Paul Linstead, deceased, is unquestionably in derogation of the common law and must he strictly construed. In relation to this finding of law this •court cites with approval the decision, in part, of the supreme court in Commonwealth of Pennsylvania v. Tappen, 215 Minn 22 (9 NW2d 18), to-wit: ‘Such a statute being in derogation of the common law, must he strictly construed. At common law there was no liability to care for poor relatives, and it must be presumed that the legislative intent was not to extend this liability beyond what was stated.’ * * * “In the present case here under consideration the daughter had passed maturity, was emancipated, married and divorced before she became a patient at the State hospital. Under those facts it appears to this court, presuming that the father raised the daughter up to emancipation and/or maturity, that he was not morally responsible for her support after such maturity and/or emancipation.” The stipulated facts show that the deceased had, in addition to his personal pension, defense bonds totaling $741.50, personal and household effects and belongings of a modest nature, and his home which he sold after his wife’s death for $8,500. The claim filed by the State in the probate proceedings shows that during the period in question the cost of maintaining the daughter in the Kalamazoo State Hospital varied from $1.51 to $2.81 per day, or approxi [662] inately $45 to $84 per month. The median, therefore, "would have been $64.50 per month. Under the conclusion reached by Mr. Justice Sharpe, had the deceased in his lifetime been required to pay $64.50 or more per month, there would have remained from his pension of $92.23 per month the sum of $27.73 or less per month, thus providing-less than $1 per day for his own maintenance, which can be assumed to be less than- that required for the bare necessities of life. Therefore, he would have ■been required to resort to the use of his accumulated principal of defense bonds totaling $741.50. His home provided him a place to live and after its sale the income from his land contract, apart from the down payment, possibly would have provided enough for the rental of a suitable habitation. We, therefore, conclude that the deceased in his lifetime was never in a position where it could be held, as a matter of fact, that he was “of sufficient ability” to provide “for the care and maintenance” of his emancipated, married and divorced daughter. Furthermore, the problem presented to the trial court admittedly was, as- stated by Mr. Justice Sharpe, a “question of fact.” We do not reverse the findings of fact of the trial judge, sitting without a jury, unless the evidence clearly preponderates in the opposite direction. In re Oversmith’s Estate, 340 Mich 104. The judgment is affirmed and the claim of the State is disallowed. Although a construction of the statute is involved, the circumstances of the case, in the light of CL 1948, § 647.25 (Stat Ann 1943 Rev § 27.2543), justify the allowance of costs to appellees, and it is so ordered. ■ Butzel, C. J., and Reid, Dethmers, and Kelly, JJ., concurred with Bushnell, J.