[66 NJSuper Page 91] Plaintiff, The Plainfield Trust State National Bank, guardian of Lydia Ruth Rinehart, a mental incompetent, filed a complaint for a declaratory judgment to determine her interest in certain United States Savings Bonds registered in the names of "Harry H. Rinehart or Mrs. Lydia Ruth Rinehart." The bonds are in a safe deposit box of the bank, maintained under a joint access contract which permits access to the box only by the two of them. The defendant, Harry H. Rinehart, is the husband of the incompetent. Defendant counterclaims for an adjudication that his wife's estate is primarily liable for the cost of her maintenance and care at the New Jersey State Hospital at Marlboro, New Jersey. He contends that he made the payments to the State for her institutional maintenance because her separate estate had not been determined and liquidated, and seeks reimbursement for all amounts so paid by him. He further asserts the present ability of his wife's estate to reimburse him in the amount of $6,756.04,
the amount of payment he has made to January 1, 1961 for her maintenance at the State Hospital. He recognizes his liability for her institutional care in the event his wife's estate is exhausted.
This court has already determined that the bonds aggregating $19,750 are equally owned by the incompetent's estate and the defendant husband. The sole remaining issue is, as between the incompetent's estate and her husband, who must bear the primary obligation for the maintenance of the incompetent at the state institution.
It is the duty of the husband to support his wife in a manner commensurate with his means and station in life. This common law primary obligation of support continues during the existence of the marital relationship and is not dependent upon the husband's prosperity or financial vicissitudes, although strained financial circumstances or inability to work may, in a proper case, excuse a present failure to support. The Married Women's Act (R.S. 37:2-1 et seq.) has not changed the common law duty of a husband to provide his wife with adequate support, nor is he relieved ordinarily from this duty because his wife has adequate means of her own or a separate estate. Bonanno v. Bonanno , 4 N.J. 268 (1950); 26 Am. Jur., Husband & Wife , § 339, p. 938. The fact that the wife's separate estate consists in whole or in part of gifts from the husband to her during her competency will not relieve the husband of his basic primary duty of support. In Department of Mental Health, etc., Kentucky v. Mullins , 56 N.J. Super. 449, 462 (App. Div. 1959), affirmed 31 N.J. 598 (1960), the court, in expounding the Kentucky law applicable to that case, stated that it is the husband's "common-law obligation to support his wife, notwithstanding her insanity, in respect to which a third person supplying her with necessaries could recover therefor against him." See also 26 Am. Jur., Husband & Wife , § 356, p. 957.
The defendant does not challenge the common law duty of the husband to support the wife. He urges, however,
that N.J.S.A. 30:4-66 and R.S. 30:4-74 impose the primary liability, in this instance, upon the wife's estate. N.J.S.A. 30:4-66 provides:
"Every patient supported in a State charitable institution shall be personally liable for his maintenance and for all necessary expenses incurred by the institution in his behalf and the husband, father and grandfather, mother and grandmother, and the children and grandchildren, severally and respectively, being of sufficient ability, and the wife, if she is in sufficiently comfortable circumstances, of every patient so confined, whose estate is not sufficient for his support, shall support, and maintain the patient in the institution in such manner and to such an amount as the court shall direct. All husbands living separate and apart from their wives so confined, and all parents of illegitimate children so confined shall also be personally liable for such expense."
"A patient's estate or the person chargeable for his support, or the state or county as provided by law, shall be liable for institutional support from the time of the patient's commitment whether he was committed as indigent or nonindigent and irrespective of change of status after commitment."
In re Truslowe , 42 N.J. Super. 23 (Juv. & Dom. Rel. Ct. 1956), is authority for the proposition that, as between the father of an incompetent daughter without funds of her own and the county, the primary obligation for the support of the daughter in a state mental institution under the cited statutes is with the father. It does not deal with the precise issue here involved. Board of Chosen Freeholders of Camden County v. Ritson , 68 N.J.L. 666 (E. & A. 1903), is likewise distinguishable. It was there held that it is within the power of the Legislature to make the estate of an insane person liable for her maintenance at a state mental institution. The statute there involved provided in effect that every insane person in any county insane asylum shall be personally liable for his maintenance therein. The court stated, at page 668:
"* * * the statute simply gives to the board of chosen freeholders, when they furnish the maintenance at public expense, the right to recoup, for the ...