{dissenting). This is an appeal from the circuit court of Calhoun county disallowing the *655claim of the State of Michigan against the estate of Paul Linstead, deceased. The facts have been stipulated as follows:
“Alberta Harrison, who is now a patient in the Kalamazoo State Hospital, is a daughter of Paul Linstead, the above decedent.
“At the time she was admitted to the State hospital, on May 2, 1947, she was over 21 years of age, had been married and divorced, and for several years prior thereto had employment of her own, lived separate and apart from her parents and received no support from them.
“At that time her father was possessed of his home at 30 West Rittenhouse avenue, in Battle Creek, Michigan, some United States defense bonds which he had purchased in 1944 and 1945 when he was still working, the total redemption value of which at the date of his death was $741.50, together with personal and household effects and belongings which were of a very modest nature.
“At that time (May 2, 1947) his wife was living with him and was possessed of no separate estate and was dependent upon him for support, except that from March of 1950 until her death the following September, she drew social security in the amount of $26.11 a month. In the spring following his wife’s death, this decedent sold his home on a land contract and rented a room on Pittee street, Battle Creek, Michigan, where he lived until May 9, 1952, and from then until his death, on September 23,1952, he lived with his son where he shared in the cost of groceries and other living expenses.
“His home was sold on June 8, 1951, for $8,500, with a $2,000 down payment and monthly payments of $65 which he received regularly starting August 1, 1951, and continuing monthly until his death in September of the following year. Most of the down-payment money, exclusive of real-estate commission and sales expense, was put into a savings account in the Michigan NationarBank at Battle Creek, where *656$1,270.59 of it still remained at the date of his death. The land contract balance when he died was $6,-029.86.
“The decedent worked at the Grand Trunk Railroad roundhouse at Battle Creek, Michigan, for a number of years prior to his retirement on May 15, 1948, where he earned $66.72 per week, gross pay. After that date he drew a railroad retirement pension of $92.23 per month until his death.
“His daughter remained at the State hospital continuously from May 2, 1947, and was still there at the time her father died. The amounts claimed for her care at the hospital, as stated in the claim now on file in this estate, are admitted to be correct and total $4,483.17.”
The issue in this case is whether the estate of Paul Linstead, deceased, is now liable for the above claim in view of the following portion of CLS 1952, § 330.21 (Stat Ann 1953 Cum Supp § 14.811):
“The patient, husband, wife, father, mother, grandfather, grandmother and children of any age, being of sufficient ability, shall jointly and severally be liable for the care and maintenance of any patient.”
In determining this question we have in mind that from May 2, 1947, when the daughter was admitted to the State hospital, the deceased was living with his wife and was employed by the Grand Trunk Railroad Company until his retirement in May, 1948, where he earned $66.72 per week; that after said date he drew a retirement pension of $92.23 per month; and that the home was sold on June 8, 1951, for $8,500, with a down payment of $2,000, and monthly payments in the amount of $65.
This cause was heard before the trial court, who entered an order disallowing the claim of the State of Michigan and county of Kent. In an opinion filed *657the court found as a fact that Paul Linstead, during his lifetime, was not possessed of “sufficient ability,” within the meaning of the statute, to reimburse the State of Michigan and county of Kent for any part of the costs for the care and maintenance of deceased’s daughter, and that the State must show that Paul Linstead was able to pay during his lifetime before a claim for the State or county can he allowed. In an opinion filed, the court stated:
“After fully considering all of the facts stipulated by the parties it is the determination and finding of this court that the appellees have failed to establish by a preponderance of the evidence that the decedent, Paul Linstead, during his lifetime, to-wit: from May 2, 1947, the date of the daughter’s admission to the hospital, to the date of the decedent’s death, on September 23, 1952, was at any time during that period of time of sufficient ability to be liable under the meaning of the statute (section 11, CLS 1952, § 330.21 [Stat Ann 1953 Cum Supp § 14.-811]) for the maintenance of the said daughter and patient in the State hospital at Kalamazoo, and that therefore the said decedent was not of such ‘sufficient ability.’ * * *
“This court feels that the word ‘being’ used in the statute (section 11 of the ‘hospital act’) is of great significance. Said statute provides that certain relatives being of sufficient ability are jointly and severally liable for a patient’s support. The word puts the whole meaning of the sentence in the present tense. That the relative or relatives would he •or are liable if as of the time the expenses are paid the said relative or relatives are of ‘sufficient ability,’ and such liability, as of the time it arises, becomes fixed and certain. It naturally follows that if there he no liability during life it cannot for the first time come into being after death for (in a sense) a past consideration.”
*658In In re Straight’s Estate, 329 Mich 319, we held that proceedings to enforce liability of a father for the care and maintenance of his mentally-ineompetent daughter were proper, although no proceedings were taken during the lifetime of the father to establish the fact and extent of his liability. It also appears that upon the death of- Judd A. Straight, he left an estate of an approximate value of $74,000. We there said (pp 324, 325) :
“The demise of Judd A. Straight did not occur until November, 1946. Under the facts disclosed by this record it cannot be questioned if the proceedings to fix his liability for the care and maintenance of his insane daughter had been brought against him in his lifetime it could not have been successfully resisted. As noted by the quotation above from PA 1923, No 151, § 18a, as added by PA 1939, No 308, the legislature provided that for liability of this character the State’s action ‘may be brought at any time either during the lifetime of the relatives so liable for the cost of such maintenance, care and treatment or after the death of such relatives without any limitation.’ This statutory provision did not change the nature or extent of Judd A. Straight’s liability. The State’s right to enforce a claim of this character against the estate of a person liable therefor was fixed by statute years before the demise of Judd A. Straight. See PA 1923, No 151, § 18a, as added by PA 1939, No 308.”
In In re Ryerson’s Estate, 338 Mich 641, the State of Michigan filed a claim for reimbursement for funds furnished under the old-age assistance provision of the social welfare act, CL 1948, § 400.34a (Stat Ann 1950 Rev § 16.434[1]). We there said (p 643):
*659“The language of the classification provisions of the probate code and the social welfare act, as heretofore quoted (CL 1948, §400.1 et seq. [Stat Add 1950 Rev §16.401 et seq.)), contain no ambiguities nor inconsistencies. The language is clear and plain. It provides that the ‘debt’ may be established by the filing of a claim which must be allowed. There is no doubt that the legislature clearly intended, through such process, to finally create a debt within the classification of the probate code.”
It should be noted that CLS 1952, § 330.21 (Stat Ann 1953 Cum Supp § 14.811), was not in issue in the Straight or Ryerson Cases, supra. It is before our Court for the first time. The term involved is “being of sufficient ability.” It is urged by defendant that at no time during the lifetime of Paul Linstead was there ability to pay for the care and maintenance of his daughter, and that he had no liability for his daughter’s care, and therefore no liability could come into existence for the first time after his death and be chargeable against his estate. In our opinion sufficient ability is a condition precedent to attaching liability, but it does not follow that failure of sufficient ability to pay for a part of the time, during which time deceased could become liable, is a cover-all for the entire period. It readily follows that whether Paul Linstead, during his lifetime, had sufficient ability to pay becomes a question of fact.
The trial court found as a fact that from May 2, 1947, the date of the daughter’s admission to the hospital, to the date of Paul Linstead’s death on ¡September 23, 1952, that Paul Linstead did not have sufficient ability to pay for his daughter’s maintemance. We do not think the record supports this con■clusion. Paul Linstead sold his home on June 8, ¡1951, for the sum of $8,500, with a $2,000 down payment, and monthly payments of. $65. It also ap*660pears that during this period he was receiving a railroad retirement pension of $92.23 per month; that most of the down payment, less real-estate commission and sales expense was placed to his account in a bank; and that at the time of his death his bankbook account showed a balance of $1,270.59. During this period the cost of maintaining the daughter varied from $1.51 to $2.81 per day, or approximately from $45 to $84 per month. In addition, deceased was the owner of some United States defense bonds, the cash value of which was approximately $741.50 at the time of his death. In our opinion the State of Michigan has a claim against the estate of Paul Linstead for such period of time as he had sufficient ability to pay.
The cause should be reversed and remanded to the circuit court to determine this fact and enter judgment accordingly. No costs should be allowed, as the construction of a statute is involved.
Carr and Boyles, JJ., concurred with Sharpe, J.