State v. Seely

67 N.W.2d 836, 268 Wis. 498, 1955 Wisc. LEXIS 436

• Court: Wisconsin Supreme Court
• Decided: January 11, 1955
• Status: Published

Opinions

Gehl, J.

The findings of the county judge that—

“Jesse Seely, adult son of Clara C. Seely, decedent, the sole beneficiary under her will, is an incapacitated, incompetent person, unable to earn his own livelihood, and in all probability such incapacity will be permanent,”

is not attacked. He is entitled to the estate if he qualifies as a legal dependent of Clara C. Seely as the term is used in sec. 45.37 (3) (a), Stats., which provides as follows:

“If any member of the Home shall die without legal dependents, his real property shall descend and his personal property shall be distributed to the state of Wisconsin as sole heir for the sole use and benefit of the Home, and no will, previously or hereafter drawn, making a contrary disposal shall be valid. A wife or mother residing at the Plome shall be included among and considered as a legal dependent for the purpose of this subsection.”

It is agreed that under the common law Jesse Seely would not qualify as a legal dependent of his mother and that if he had that status he could have acquired it only by virtue of some statutory provision. We find no provision in ch. 45, Stats., which is entitled “Veterans’ Affairs, Benefits and Memorials” which can be construed to qualify him as a legal dependent. Sec. 45.35 (5b), Stats., provides:

“ ‘Dependent’ of a veteran as used in this section means and includes:

“(á) A wife or husband; or a divorced wife only when receiving benefits under a. court order.

“.(b) Any natural child under eighteen years of age, or if in full attendance at a recognized school of instruction, or of any age if incapable of self-support by reason of mental or physical, defect. . . .”

Counsel for petitioner urges that this provision should be read to indicate a purpose on the part of the legislature to include Jesse Seely as a legal dependent within the meaning of sec. 45.37 (3) (a), Stats. We do not agree. First, the provisions of sub. (5b) of sec. 45.35 are by their own terms made applicable only to that section, and second, Clara Seely was not a veteran.

Petitioner, contends that sec. 52.01 (1), Stats., should be interpreted as defining Jesse Seely as a legal dependent of his mother within the meaning of sec. 45.37 (3) (a). That section provides:

“The parent, spouse, and child of any dependent person (as defined, in s. 49.01). who is unable to maintain himself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is; but no child of school age shall’ be compelled to labor contrary to the child-labor laws.”

Sec. 49.01 (4), Stats., provides:

“ ‘Dependent person’ or ‘dependent’ means a person without the present available money or income or property or credit, or other means by which the same can be presently obtained, sufficient to provide the necessary commodities and services specified in subsection (1).”

The portion of sec. 52.01, Stats., which is quoted above, declares a principle, but it is not self-executing. The legal liability of the relative to maintain the dependent person is not established until there has been compliance with the subsequent provisions of sec. 52.01, and certainly, one may not be considered a legal dependent of another until a legal obligation to support the former has been imposed, in this case by statute. Sec. 52.01 provides for a system of establishing liability, creating a relationship, and enforcing the liability. Its provisions are prospective in character. Saxville v. Bartlett, 126 Wis. 655, 105 N. W. 1052. The obligation arises only after notice and hearing and when the court has made an order authorized by the statute; it is not complete until the court has found the necessity for aid, the ability of the relative or relatives sought to be charged, the amount required for the support of the indigent person, and has determined which of the relatives shall contribute, has prescribed the proportion each relative shall contribute, and the dates upon which payments should be made, all in accordance with sec. 52.01 (4). Sec. 52.01 contains no provision authorizing a judgment or order for the payment of maintenance furnished an indigent person prion to the hearing therein provided. The only provision which authorizes recovery is sub. (6) which it will be observed permits recovery of only that which the relative has neglected to provide as ordered. Sub. (6) provides:

“If any relative who has been ordered to maintain a dependent person neglects to do as ordered, the authorities or board may recover in an- action on behalf of the municipality or institution for relief or support accorded the dependent person against such relative the sum prescribed for each week the order was disobeyed up to the time of judgment, with costs.”

Consequently, the indigent does not become a dependent within the meaning of sec. 52.01, Stats., until a relative has been .required by the court’s order to pay. In Guardianship of Heck, 225. Wis. 636, 275 N. W. 520, it was sought, under the provisions of sec. 49.11, Stats. 1935, to charge the estate of an incompetent son for the support of his mother. The statute was. in substance the same as sec. 52.01. The county court had ordered payment. This court, after discussing and quoting from Saxville v. Bartlett, supra, said (p. 639) :

“It is clear from a consideration of this case that the liability of a child for the support of a parent can only be enforced by the statutory proceeding, and that the liability of the child is measured by the extent of its failure to comply with the determination of the county court. No effort has been made in;this case to proceed in the manner prescribed by statute. The county court evidently assumed that there was a direct liability, independent of the statute for the support of an indigent parent by a child.”

If the liability of a relative for the support of an indigent is to be measured only by the extent of his failure to comply with the determination of the county court, it cannot, possibly be said that the indigent is a legal dependent of the relative until there has been such determination.

By the Court. — Order and judgment reversed.