#### Fortune, Appellant, *v.*Purdy, Appellee.

(Decided November 2, 1939.)

*Messrs. Garver S Badger,*for appellant.

*Messrs. Estill & Kuhn,*for appellee.

Lemert, J.

This action was filed by appellant in the Common Pleas Court of Holmes county, Ohio, in February 1937, to partition a house and lot in the village of Killbuck, Holmes county, Ohio. The petition sets forth that the appellant, Alba Fortune, owned one-half and the appellee, Reba Purdy, who was a sister of appellant, owned the other half of the property, having inherited the same from W. E. Simmons, their father. The answer of Reba Purdy was filed denying claims of the appellant; setting forth that Elmo M. Estill was the qualified and acting administrator of the estate of Ellen Simmons, who died April 11, 1936; and alleging *375that Ellen Simmons owned the real estate, and by reason of the title being in Ellen Simmons, the estate was subject to her funeral expenses, nursing and doctor bills in the sum of $615.32.

A reply was filed denying these claims. The case was tried before the Common Pleas Court on July 19, 1938, and at the very outset we note that the appellee admitted that the title to the property in question was inherited from W. E. Simmons, who died in 1915, and was held one-half by appellant and one-half by appellee, they being his daughters and only heirs.

The question submitted to the court below, and the question for consideration in this court is: Should the following bills of Ellen Simmons, deceased, be paid out of the property owned by *W.*E. Simmons during Ms lifetime and now held by his two children. Alba Fortune and Reba Purdy? The bills are as follows:

> Nellie B. Hill, 10 days nursing.......... $60.00

> Ethel Benberger, 10% nights nursing.... 63.00

> Dr. Chas. G. Brown, medical attention---- 72.00

> Finefrook, Mansfield, burial............ 420.32

> Total............................... $615.32

W. E. Simmons and Ellen Simmons were husband and wife and had two children, Alba Simmons and Reba Simmons. Alba Simmons later married R. L. Fortune and Reba Simmons later married W. *W.*Purdy. W. E. Simmons died in Coshocton county in 1915, owning at that time the house and lot described in the petition, together with other property. The estate of W. E. Simmons was admimstered in Coshocton county, Ohio. Ellen Simmons, the widow, lived in the property described in the petition, in which she had a dower, interest, and had personal household goods, personal property and money loaned out in the *376sum of $2,500, as represented by a note signed by William Buey and wife.

After the two daughters were married, Mrs. Simmons spent some time with each of them and rented the house at Killbuck a large portion of the time. IJp until 1931, she spent much time with both daughters. After 1931, she spent more time with her daughter, Beba Purdy, than she did with her daughter, Alba Fortune. She left Killbuck in November 1935 and stayed with Beba Purdy from then until April 11, 1936, when she died.

The note for $2,500 had been paid off prior to that time, with the exception of $930. A short time before Mrs. Simmons died she turned this note over to her daughter, Beba Purdy. From an examination of the records in this case we are informed that Beba Purdy knew that this note was transferred to her. She ordered the doctors and the nurses. She wanted her mother to have a respectable funeral. She and her husband guaranteed all of these bills. She knew that her mother had no property with which to pay these bills, except this balance due and remaining of the $2,500, to wit: $930, which she received.

It is suggested that this case is similar to the case of *Truman*v. *Truman,*decided May 16, 1936, by the Common Pleas Court of Ashland county, Ohio, and also heard by this court. However, we must say that' the facts in that case are not similar to those in the case at bar. In that case the deceased did not transfer in contemplation of death, a short time before passing away, more than sufficient assets to pay the expenses of the last sickness and funeral. Beba Purdy has held her undivided one-half interest in this real estate since 1915, having inherited the same from her father’s estate. Under the facts and circumstances in this case, we think it would be unjust to subject appellant’s interest to the payment of debts incurred through her mother’s last sickness and funeral, especially after *377appellant lias held the same for more than 21 years as an inheritance from her father, W. E. Simmons, whose estate had been administered and fully settled.

The circumstances under which this note is claimed by the Purdys and the refusal to pay the funeral expenses out of the same should be scrutinized very closely, especially when the mother was well advanced in years and was about to pass to her reward. The bills created herein were without the knowledge, consent or approval of Alba Fortune, and were created either by Mrs. Simmons personally or by Reba Purdy, her daughter, and were fully guaranteed by that daughter. We are of the opinion that these bills should be paid by Reba Purdy out of the $930 that she received from her mother.

Considerable argument is presented in this case concerning a constructive trust. Should a trust be constructed in this property which belonged to Ellen Simmons ’ husband 21 years before her death and to her daughters since that time? We think not.

It is contended by counsel for appellee that Ellen Simmons worked and helped to earn this property. When her husband died, there was an administrator appointed. She received her share of his estate. The $2,500 that she loaned out, $930 of which was left when she died, was also earned jointly by husband and wife before he died 21 years ago. Should she be permitted to give this away and make others pay her bills ? The rights of husband and wife in their separate property are statutory in Ohio. The right of husband and wife to contract is statutory; the payment of debts of deceased is also statutory. Where a husband has been dead for 21 years he could not contract for any services for his wife. The property had passed to his two children, in whom the title and the fee has been for more than 21 years. It therefore follows that the finding and judgment of the Common Pleas Court is re*378versed and judgment is rendered in favor of the appellant, disallowing the funeral bills and expenses of last sickness.

*Judgment reversed.*

Sherick, P. J., and Montgomery, J., concur.