
    Badger et al. v. Orr.
    
      Actions — Statute of limitations — Section 10753, General Code— Removal of administrator and reinstatement — Time during removal deducted from two years’ limitatio>n, when — Married woman may maintain action — For services to invalid — Although her husband received compensation, when — Insanity does not relieve husband — From liability for necessaries or care furnished wife, when.
    
    1. Where the appointment of an administrator is revoked by the probate court, but on appeal the administrator is restored to his office and duties, the period during which he was sus' pended from his office is to be deducted in fixing the two years’ limitation for the bringing of an action against him as such administrator.
    2. A married woman living with her husband may maintain an action in her own name for services in giving special care and attention to an invalid for whose board and lodging in their home her husband has already received compensation.
    3. The liability of a husband for necessaries or care furnished to his wife is not affected by the fact that he is insane or mentally incompetent to transact business, and an action for recovery for services or necessaries so furnished may be maintained against the administrator of such husband notwithstanding the indebtedness was incurred during the lifetime of the husband and was not approved by his guardian.
    (Decided February 8, 1913.)
    Error: Court of Appeals for Wayne county.
   The plaintiffs cause of action in the court below was founded upon a promise for the payment for services rendered by the plaintiff for the said Keziah Badger, at the request of Michael Badger, her husband, from April, 1906, .until January, 1909. The claim was presented, duly verified, to the administrators, March 14, 1911, and was rejected March 25, 1911. Suit was commenced in the court of common pleas June 21, 1911.

On September 1, 1911, the defendants filed an amended answer setting up four defenses. For a first defense the defendants admit that they are the administrators with the will annexed of Michael Badger, deceased, but they do not allege when they were appointed such administrators nor is the date of their appointment alleged in the petition. In this defense it is alleged that the claim of the plaintiff was rejected on the 25th day of March, 1911. It does not appear on the face of the answer in this defense that the claim is barred either by the six months’ statute or by the two years’ statute, the limitation for bringing suits against the administrators of an estate being two years after their appointment and giving notice.

In the second defense the defendants allege that more than two years next before the commencement of this suit, to-wit, on the 5th day of March, 1909, defendants were, by the probate court of said county, duly appointed and qualified as administrators with the will annexed of said Michael Badger, deceased, at which time they gave bond as administrators, and afterwards, within three months after the giving of said bond, they caused notice of their appointment to be published in a newspaper of general circulation in said county for three consecutive weeks. It is further alleged in said second defense that Michael Badger died January 10, 1909, and that the plaintiff’s cause of action, if it ever did accrue, accrued prior to the said 5th day of March, 1909.

For a third defense defendants aver that during the period of thirty-two months, from April, 1906, to January, 1909, said Michael Badger was incapable of transacting any business on account of his weak mental condition, and during said time was an imbecile and did not have mental capacity to transact any business and make any contracts; that during the time from May, 1906, to the time of his decease he was under guardianship and had a guardian of his person and estate, which guardian was duly appointed by the probate court of said county and such guardian transacted all business for said Michael Badger, all of which was known to the plaintiff, and said guardian took care and charge of and provided for all the wants and necessaries of said Keziah Badger.

For a fourth defense defendants deny that the plaintiff performed services and work to the extent and amount and of the kind and value mentioned in the petition, and aver that whatever services were rendered and work performed for said Keziah Badger by plaintiff, during the time mentioned in said petition, were rendered and performed by said plaintiff at the special instance and request of the guardian of Michael Badger, who was the guardian of the person and estate of said Michael Badger during said period, which services and work were performed by said plaintiff under and by virtue of a contract with said guardian, for all of which services and work rendered by said plaintiff for said Keziah Badger full payment has been made by said guardian to the plaintiff, and nothing whatever is now due said plaintiff from said defendants for any service or work performed for said Keziah Badger.

Defendants further say that during the period from April, 1906, to January, 1909, said plaintiff was married and was living with her husband, Willis H. Orr, and said plaintiff and her said husband constituted the family - at whose home the services were rendered and work performed for said Keziah Badger by plaintiff, and that whenever payment was made to said plaintiff by said guardian for such work and services as above mentioned receipts were given by said plaintiff as evidence of full payment for services mentioned in said receipts, but in giving such receipts plaintiff signed her said husband’s name, which receipts of payment are for all services and work performed by said plaintiff to the full satisfaction of said plaintiff.

To this amended answer the plaintiff files reply to the second defense, in which she admits that the defendants were appointed and qualified as administrators of the estate of Michael Badger, and gave bond as such administrators and caused notice of such appointment to be published as alleged in said amended answer. • She admits that Michael Badger died on the 10th day of January, 1909; but the plaintiff says that the appointment of such administrators was revoked by the probate court of Wayne county on August 19, 1909, and Corwin D. Swan was by said court duly appointed and qualified as special administrator of said estate and acted as such from said date until the 19th day of February, 1910, when he was removed and the defendants were reappointed as administrators with the will annexed of said estate.

For reply to the third defense plaintiff says said Michael Badger, before said adjudication of imbecility and the appointment of said guardian, brought the said Keziah Badger, to the home of Willis H. Orr, husband of the plaintiff; that the said Keziah Badger was a paralytic and was in a helpless condition.- She remained in the home of said Willis H. Orr until after the death of the said Michael Badger. Plaintiff further says that the services so rendered by the plaintiff were necessary for the care, well-being and comfort of the' said Keziah Badger and were not a part of, but were additional to, her household duties as the wife of Willis H. Orr. The guardian had full knowledge of the character of the services and that they were being rendered by the plaintiff and said guardian never paid the plaintiff for said services.

For reply to the fourth defense .plaintiff says that the services she rendered for the said Keziah Badger were not included in any contract with said guardian for which full payment has been made the plaintiff. She denies that any payment was made to her for any of said services, and she denies that any receipts were given by her to said' guardian for said services or that any receipts given by her under her husband’s name were intended to be, or in fact were, payments in full for said services or in satisfaction thereof, or “that she ever gave said guardian the receipts therefor.

The case was tried to a jury upon issues made up by the petition, the amended answer and the reply to. the amended answer, as shown above, resulting in a verdict in favor of the plaintiff for $1,178.38. The motion for a new trial was filed and upon consideration thereof the court directed a remittitur of all in excess of $700, otherwise a new trial would be granted. Ten days were given for the plaintiff to determine as to the remittitur, which was consented to, and the judgment entered accordingly.

Error is prosecuted to this court by Perry F. Badger and Ira Badger, administrators with the will annexed of Michael Badger, deceased, as plaintiffs in error, against Maud V. Orr, defendant in error.

Voorhees, J.; Shields and Marriott, JJ., concurring.

Seventeen grounds of error are set forth in the petition in error as reasons for the reversal of the judgment. All the grounds of error set forth in the petition in error are not urged upon our consideration in presenting the case, but several of the grounds are insisted upon as reasons for a reversal of the judgment. One of the principal grounds relied upon by the plaintiffs in error is that the action of the plaintiff below, the defendant in error, was barred by the statute of limitations as to time of bringing suit against administrators, namely, within two years from the time of the appointment of said administrators and the giving of bonds by said administrators.

Section 10746, General Code, among other things, provides: “No executor or administrator, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within eighteen months from the time of his giving bond except as hereinafter provided. A creditor whose cause of action accrues after the expiration of eighteen months from the time the executor or administrator gave bond according to law, and before such estate is fully administered, may begin and prosecute such action within six months after the accruing of such cause and before the estate is fully administered. No cause of action against an executor or administrator shall be barred, by lapse of time, until the expiration of six months from the time it accrues.”

It is contended in this case that the plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, on March 5, 1909^ and gave their bond and notice of their appointment within three months of the time of their appointment. On the 14th day of March, 1911, the claim of the defendant in error was presented, duly verified, for an allowance, and on the 25th day of March, 1911, the claim was rejected by said administrators and their rejection thereof endorsed thereon. As we have seen, on the 21st day of June, 1911, suit was brought by the defendant in error against said administrators. It is contended by the defendant in error that this statute of limitations does not control in this case.

The plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, but the appointment of such administrators was revoked by the probate court of said county on August 19, 1909, and one Corwin D. Swan was, by said court, duly appointed and qualified as special administrator of said estate and acted as such from said date until the 19th day of February, 1910, when he was removed and the plaintiffs in error were reappointed as administrators with the will annexed of said estate. It is contended by the plaintiffs in error that the proceedings in the probate court for the removal and revoking of the appointment of said administrators upon the appeal of the cause to the court of common pleas only suspended the office of administrator so held by them, and upon the reappointment of said administrators by the court of common pleas they were restored to their office and duties as such administrators, and that during the interim between the time of the removal and the reappointment the statute of limitations, requiring the presenting of claims against the estate to the administrator, was not suspended but remained in full force.”1

We can not agree with this contention or construction of the statute, but rather think that Section 10753, General Code, does control. It provides that “When an executor or administrator dies, resigns, is removed or his letters are revoked, or his powers have ceased, without having fully administered the goods and estate of the deceased, and a new administrator of the same estate is appointed, the time allowed to the creditors for bringing their actions shall be enlarged as follows: To so much of the eighteen months provided for the limitation of the action as expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new administrator as will make two years in all.”

According to this statute the time intervening between the revoking of the letters of administration and the removal of said administrators from office by the probate court and their subsequent reappointment by the court of common pleas would be deducted from the time allowed by the statute of limitations for bringing suit. The plaintiffs in error were appointed March 5, 1909, and duly qualified as such administrators, but the probate court, on August 19, 1909, revoked said appointment and removed said administrators from their said office and appointed a special administrator. Upon appeal of the case to the court of common pleas that court, on the 19th day of February, 1910, removed said special administrator and reappointed said plaintiffs in error. Now, adding the time they had served before their removal (which is five months and fourteen days) to the time they served after their reappointment and before the bringing of this action, and adding thereto the time of suspension between their removal and the time of the reappointment, the period of time elapsing would be two years and nine days; but, deducting the nineteen days of suspension, the action was brought within the two years allowed by Section 10753, General Code. Therefore, the contention of the plaintiffs in error is not sustained as to the time of bringing the action.

It is also contended by plaintiffs in error that the plaintiff below, being a married woman, living with her husband, at whose home the services were rendered and the work performed for said Keziah Badger, can not maintain said action, and they cite the case of Spayne v. King, 7 O. D., 158, in support of this contention. But on the contrary, from the facts in this case it is very clear that the services rendered by the defendant in error in this case were not such services as are contemplated by the duties of a wife in the discharge of her domestic duties as wife and housekeeper, referred to in the case of Spayne v. King, supra, or in the authorities cited from New York, relating to the domestic relations of husband and wife. Therefore, we hold that the defendant in error was entitled to maintain this action in her own name, and that the facts disclosed in the record fully sustain her in her cause of action.

It is contended by the plaintiffs in error that at the time the alleged contract was made by Michael Badger with the defendant in error and her husband, he, Michael Badger, was insane and mentally incompetent to transact any business. A husband is liable for necessaries furnished a wife although he may be insane or incompetent to transact ordinary business (Sections 7997 to 8003, General Code; 2 Beach on Contracts, Section 1408; Clark on Contracts, 2 ed., 181). Therefore, the contention of the plaintiffs in error that Michael Badger was not liable for the support of his wife and for necessaries furnished her can not be sustained.

It is further contended by the plaintiffs in error that for the services rendered by the defendant in error she has been fully paid, and in support of this contention a number of receipts have been produced and are attached to the bill of exceptions as evidence of this contention. Upon an examination of the receipts themselves they do not sustain this contention, and, taken in connection with oral evidence that was properly introduced in the case in the way of explanation of the receipts, it is shown beyond all question that the contention of the plaintiffs in error that the defendant in error was paid for her services, for which this action was brought, is not sustained.

Messrs. Critchfield & Hay, for plaintiffs in error.

Mr. Jos. O. Fritz and Mr. Frank Taggart, for defendant in error.

It is further contended by the plaintiffs in error that the verdict of the jury in this case is not sustained by the evidence, but is manifestly contrary thereto. In this contention we do not agree with counsel, but on the contrary, after a careful examination of the record, we are unanimous in the opinion that the evidence supports the verdict of the jury and that there is no error in the finding of the jury as to the facts in favor of the defendant in error in support of her claim. We have examined the records with a view of determining whether or not any of the alleged grounds of error set forth in plaintiffs’ petition in error are well taken and we are unanimous in the opinion that they are not.

Therefore, we find no error in the record and the judgment, with the remittitur allowed, is affirmed with costs but without penalty.

Judgment affirmed.  