Waltbillig v. Burke

17 Ohio App. 444 | Ohio Ct. App. | 1923

Hughes, J.

In' 1907, David M. Burke, a passenger brakeman upon tbe Pennsylvania System West of Pittsburg, upon his application, became a depositing member of tbe Employees’ Saving Fund of the Pennsylvania Lines West of Pittsburg. He later died testate, leaving his wife the sole beneficiary under his will; and his wife died later, but before Ms account in tMs savings fund had been paid out by the company.

In his application he stated, as reqMred by the rules and regulations, that he agreed “that in the event of my death, all deposits standing to my credit in said ¡Saving Fund, and all interest due thereon, shall be paid to my wife Bridget Burke.”

According to the rules and regulations, all deposits, with interest thereon, wMch he might make from time to time, belonged to him absolutely. He had the right to withdraw them at any time, although in his application he did designate his wife as the person to- whom the company was authorized to pay.

Bnt Section 21 of the rules governing these deposits provided that upon satisfactory proof of the death of a depositor, the money belonging to Mm, in case of dispute, should be paid over only to the person legally entitled to receive the same.

There is nowhere in the rules and regulations, nor in the application, anything that would indicate that any other person than the depositor had any interest or rights in or to this fund either during the lifetime of the depositor or after Ms death, although these passages we have quoted from the application and the rules would indicate that the depositor had agreed that the company would be discharged from the obligation if the money were paid, in case there was no dispute, to the wife of the depositor so designated in his application.

The theory of the plaintiff in error, if we understand it correctly, is that under these circumstances Mr. Burke made the contract with the Pennsylvania Company for the benefit of Ms wife, and the fund that was to be paid over to her, after Mr. Burke’s death, was a payment of money direct from the Pennsylvania Company and could not be considered as coming from her husband. But in view of the nature of the deposit, even taking this viewpoint as nearly as possible, it is quite clear that this fund was property of Burke, and when it passed on to his wife it was. still property coming from his estate.

We cannot view it in any other light. It is perfectly clear that it was an effort made by Burke to make what was in the nature of a testamentary disposition of a part of his estate, and not having lost the control of it, nor executed a writing in the formality of a will, upon the authority of Worthington, Admr., v. Redkey, Exr., 86 Ohio St., 128, it would necessarily have to be administered as a part of his estate, and pass through the proper channel to his wife under and by virtue of the terms of his will.

Entertaining these views, there was no error in the judgment below' and the same is affirmed.

Judgment affirmed.

Warden and Crow, JJ., concur.