Barry v. Brittain , 223 Ark. 613 ( 1954 )

Griffin Smith, Chief Justice.

Sarah Devlin Brittain, an octogenarian whose mental capacity to execute a will is not questioned, died in June, 1953, leaving an estate estimated to be worth a little more than $42,000. Her husband, E. P. Brittain, to whom she had been married for almost a quarter of a century, was provided for to the extent of from $11,000 to $16,000. Brittain filed with the executor — Clinton it. Barry — a claim, for $5,-145.94 for reimbursement of payments personally made covering doctor bills, medicines, nurses, hospitalization and items of a similar nature beginning with April 16, 1952. The claim was disallowed by the executor, but approved by the probate court with an order directing payment.

Determination of the appeal requires a construction of the words “just debts which I may owe” and their relation to Brittain’s contention that it was the purpose of the testatrix to charge her estate with all expenditures relating to the prolonged illness. The pertinent paragraph is “ I direct that all just debts which I may owe, including the expenses of my last illness and of my burial, be paid”.

Appellant’s position is that it was the husband’s primary duty to pay the charges incurred on account of Mrs. Brittain’s illness, that he recognized this obligation from time to time, and that in the absence of appropriate language in the will from which an intention to charge the estate with these items should be drawn, there was no indebtedness within Mrs. Brittain’s contemplation and no right of repayment.

It is conceded that a court’s function is to construe and enforce a will — not to make for the testator another which might appear to be more equitable “or more in accordance with what the court might believe to have been the testator’s unexpressed intentions”. Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546. We are cited to Morris v. Bosch, 194 Ark. 153, 106 S. W. 2d 159 as authority for appellee’s belief that Mrs. Brittain intended that her husband should be reimbursed for what he had spent; but in the Morris-Dorsch case the language of the will was: “After all expenses, burial, inheritance tax, etc., are paid, I want [the property to go as directed] ”. We held that inheritance taxes and certain other items were charges against the estate made so by express language.

We are also asked to apply a rule stated in Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. 2d 36. An item of $1,522.65 was allowed in favor of the administratrix, covering last illness and burial expenses. But there the intestate decedent was responsible for his own bills. The administratrix was his widow and the obligations were of a fixed character. Excerpts from the opinion are: “Except for funeral expenses, no debts can be created against an estate after death. The debts must be existing at the time of death or arise out of obligations incurred by decedent. Only such claims can be presented for allowance, classification, and payment out of the assets found in the hands of the representative after settlement”. In Burns v. Wegman, 200 Ark. 225, 138 S. W. 389, we held that a widow had a right to pay the medical and funeral expenses of her husband and claim reimbursement as a creditor of the first class.

In Beverly v. Nance, 145 Ark. 589, 224 S. W. 956 it was said that “incident to the duty of a husband to maintain his wife is the corresponding duty of paying for her reasonable burial expenses”.

Two cases decided in 1949 — Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354, and James v. James, 215 Ark. 509, 221 S. W. 2d 766, reaffirm what Judge Kirby said for an undivided court in Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867: “. . . Where the husband purchased and paid for land, taking the deed therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want . . .”

In the case before us Mrs. Brittain directed that “all just debts which I may owe” be paid, including the expenses of my last illness and of my burial”. Burial expenses are not included in the account.

Appellee testified that he had been employed gainfully for many years, that during the 24 years of his marriage to Mrs. Brittain he earned $80,000 or more, and that his savings from such receipts had been about $5,000.

We think the case here is much stronger in favor of the executor than the court’s language in Harbour v. Harbour, where the husband’s money paid for the land and the deed was made to his wife. There was no legal obligation that this be done, and it is entirely possible that the purchaser expected a reconveyance. This, of course, is speculative; but the fact remains that his purchase was held to have been an outright gift.

Brittain was legally obligated to make the payments he did, and when his wife died the estate was not under any duty to repay him. Mrs. Brittain had the financial ability to do so and the mental capacity to express the intent, but the language relied upon by appellee did not accomplish that purpose, hence the judgment must be reversed.

Justices Holt, Millwee, and Robinson dissent.