Hamilton County.

་

evidence, it was not copied, and we have nothing in the record to show what that will was, except the testimony of Fechheimer, who was executor of the will, and he testifies as to certain provisions contained in it; but in the view we take of the case it is not material. Attention is called to it however as being an item of evidence not appearing in the record.

The facts are these: Michael Schradzki and Hannah Schradzki were husband and wife; each died without issue. Hannah died in 1887, and Michael died in 1894. Two policies of insurance were issued upon the life of Michael; one on April 20, 1868, for $3,000, and the other on April 24, 1873, for $1,000. The beneficiary named in each policy was Hannah Schradzki, the wife of Michael.

The premiums upon each policy were paid during the lifetime of Hannah Schradzki by her. She died leaving a will wherein she made certain bequests to persons named in her will, and the balance of her property to a certain charity. After the death of Hannah, the executor of her will paid the premiums on each of these policies up to the time of the death of Michael. The policies in each case provide that payment shall be made of the amount insured to Hannah Schradzki, or, if she should not be living at the time of Michael's death, to her children, or their guardian, or their issue, in sixty days after due notice and proof of death.

As has been already said, these parties both died without issue. So that when Michael Schradzki, whose life was insured, died, there was no person in existence who, by the terms of the policies, would be entitled to payment.

The plaintiff here is administrator of the estate of Michael Schradzki; he says that he is entitled to have this money paid to him, because of there being no person in existence to whom the insurance should be paid by its terms, and that Sec. 3629 Rev. Stat. applies. That statute was passed in 1879, and it provides that:

"Any married woman may, by herself, and in her own name, or in the name of any third person, with his assent as her trustee, cause to be insured the life of her husband, for her sole use, for any definite period, or for the term of his natural life, and if she survives such period or term, the amount of insurance becoming due and payable by the terms of the insurance shall be payable to her, to and for her own use, free from the claims of the representatives of the husband, or any of his creditors; a policy of insurance on the life of any person, duly assigned, transferred, or made payable to any married woman, or to any person in trust for her or for her benefit, whether such transfer is made by her

Plaut v. Insurance Co.

husband or other person, shall inure to her separate use and beneft, and that of her children, independently of her husband or his creditors, or of the person effecting or transferring the same, or his creditors; and the amount of the insurance provided for in the preceding section, or this: section, may be made payable, in case of the death of the wife before the period at which it becomes due, to his, her or their children, for their use, as shall be provided in the policy of insurance, or to their guardian, if under age; but if there are no children upon the death of the wife, such policy shall revert, to, and become the property of the party whose life is insured, unless it has been transferred as hereinafter provided."

Now, it is said this section controls in this case, and that the amount provided for in the policy shall therefore be paid to the representative of the husband-the administrator of his estate.

Before going further it should be said, that it is urged upon the part of the insurance company, that the disposition of this fund should be governed by the laws of the state of New York. It is a New York corporation; the policies were issued in New York. The facts are that the applications were made here, and the policies were delivered here, the premiums were all paid here, and we think (under the authority of the case of Cross v. Armstrong, 44 Ohio St. 613, 621, 622 [10 N. E. Rep. 160]) that this is an Ohio contract, to be governed by the laws of Ohio. But we think, as announced in the opinion of Judge Burket in the case of Ryan v. Rothweiler, 50 Ohio St. 595, 602 [35 N. E. Rep. 679], that the statute to which attention has been called does not apply. It may be said that it was obiter upon the part of the court to say what was there said, but we are content with the reasoning given and follow that opinion. The language of the judge is, that Sec. 3629 Rev. Stat. having been passed after the policy was issued, could not affect the rights of the parties.

That being true, this is the situation. I ought to say that it was said in argument as to the will of Hannah Schradzki that the executor was authorized by the will to spend for the surviving husband not only the income of the estate, but such part of the property as was necessary for his support, and the executor states further, that he not only paid the income in support of the husband, but he spent more than the income.

The situation then, is, that Hannah Schradzki paid all the premiums on the policies; she died testate, and by her will she disposed of her property. The executor of the will paid out of her estate from that time on all the premiums, and nothing was ever paid upon these policies by anybody except Hannah Schradzki and the representative of her estatethe executor of her will. The statute does not apply.

Hamilton County.

The policies at the time of her death were hers; they became part of her estate; nothing was done afterward that transferred that interest from her estate to her husband. That being true, judgment for the defendant was right.

Nothing has been said in the opinion about the matter of estoppel; but we do not think there was any estoppel from making a claim by anything that was done. It was said that the defendant was estopped; but that is immaterial. We hold that the policies were the property of the wife at her death, and became a part of her estate, and come under the provisions of her will, whether the policies are named in the will or not.

Judgment affirmed.

Hale and Caldwell, JJ., concur.

EXECUTORS AND ADMINISTRATORS-WILLS-TRUSTS. [Lorain (7th) Circuit Court, April 29, 1904.]

Hale, Marvin and Winch, JJ.

BURT MOORE ET AL. V. JOSEPHINE IDLOR ET AL.

1. WIDOW NOT BOUND TO EXHAUST HER SEPARATE PROPERTY OR BE IN ACTUAL NEED BEFORE SUBJECTING Corpus OF LIFE ESTATE TO HER SUPPORT, WHEN.

A widow who waives her right of dower by electing to take under the will is not bound to exhaust all her separate property, or be in danger of, actual want or need, in order to avail herself of the corpus of certain property given to her for life "with power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support;" the corpus may be subjected if the income of her separate property and the life estate is insufficient for her support.

2. CHILDREN TAKE PRO RATE UNDER WILL, WHEN.

The will of a deceased husband by which the widow was given an estate for life in certain property in lieu of dower, which she accepted, provided that "if at the death of my said wife, any of said property, or enough thereof remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit," followed by several bequests amounting to $3,500 to three children and one grandchild, respectively, making $5,500 in the aggregate; a subsequent clause in the same item provided that "if at the decease of my said wife, there should not remain undisposed of by her the sum of $3,500, then the same or what remains thereof is to be divided pro rate between" the children and grandchildren referred to. Less than $3,500 of the property was left at the death of the widow: Held, there being less than $3,500 left at the widow's death, which amount was insufficient to allow the widow to dispose, by will, of $2,000, and to pay the $3,500 of bequests to the children and grandchild as provided in the first part of the will, the children and grandchild, in such event, can only take under the pro rate clause of the will.

Moore v. Idlor.

3. APPLICATION FOR YEAR'S ALLOWANCE MUST BE MADE TO PROBATE Court. Application for the widow's year's allowance must be made to the probate court, which has original and exclusive jurisdiction; such application cannot be made to the circuit court.

4. LIFE TENANT NOT DEBTOR OF REMAINDERMAN BUT A TRUSTEE.

The relation of debtor and creditor does not exist between the life tenant and remainderman as such; the former holds rather as trustee. Such trust continues in the executor of the life tenant who takes possession of the property after his death.

STATUTE OF LIMITATIONS NOT APPLICABLE TO CONTINUING TRUST.

The statute of limitations does not run against a continuing trust.

C. W. Johnston, and J. H. Leonard, for plaintiffs:

Charlotte Moore had only a life estate in this property with remainder over to the plaintiffs and Josephine Idlor, coupled with two powers, viz.: (a) The power to dispose of any or all of the property in case she needed it for her support; and (b) to dispose of $5,500 by will, provided there was so much left her at her death. Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Greene v. Greene, 57 Ohio St. 628 [50 N. E. Rep. 1129]; Lepley v. Smith, 7 Circ. Dec. 264 (13 R. 189); Thurston v. Bissel, 7 Circ. Dec. 235 (13 R. 293); Turley v. Turley, 11 Ohio St. 173; James v. Pruden, 14 Ohio St. 251; Davis v. Corwine, 25 Ohio St. 668; Baxter v. Bowyer, 19 Ohio St. 490.

The power to use for her support was on condition that she needed the property for her support. This condition is a condition precedent. 4 Kent's Commentaries, 124; Page, Wills 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman v. Mersman, 136 Mo. 244 [37 S. W. Rep. 909]; Parmelee v. Railway, 6 N. Y. (2 Seld.) 74; 22 Am. & Eng. Enc. Law (2 ed.) 1123, 1124; Minot v. Prescott, 14 Mass. 496.

This power could not be exercised except in case of actual need. 22 Am. & Eng. Enc. Law (2 ed.) 1156; Hall v. Culver, 34 Conn. 403; Peckham v. Lego, 57 Conn. 553 [19 Atl. Rep. 392; 7 L. R. A. 419; 14 Am. St. Rep. 130]; Griffin v. Griffin, 141 Ill. 373 [31 N. E. Rep. 131]; Lehnard v. Specht, 180 Ill. 208 [54 N. E. Rep. 315, 316]; Minot v. Prescott 14 Mass. 496; Rathbun v. Colton. 32 Mass. (15 Pick.) 471; Hammond v. Conkright, 47 N. J. 447 [20 Atl. Rep. 847].

Conditions attached by the donor to the execution of the power must be strictly complied with, however unessential they may seem. 18 Am. & Eng. Enc. Law (1 ed.) 937; 4 Kent's Commentaries, 330, 334, 335; 2 Washburn, Real Prop. 317; Smith v. Provin, 86 Mass. (4 Allen) 516; Richardson v. Crooker, 73 Mass. (7 Gray) 190; Roarty v. Mitchell, 73 Mass. (7 Gray) 243, 244; Wickersham v. Savage, 58 Pa. St. 365;

Lorain County.

Hall v. Towne, 45 Ill. 493; Rice v. Tavernier, 8 Minn. 248; Page, Wills 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman v. Mersman, 136 Mo. 244 [37 S. W. Rep. 909].

The cashing of the notes was not a conversion. Burleigh v. Clough, 52 N. H. 267, 283 [13 Am. Rep. 23, 39, 41].

The rule of law governing this class of cases is well and clearly stated in Bishop v. Remple, 11 Ohio St. 277, 281; 18 Am. & Eng. Enc. Law (1 ed.) 930, 931, 933, 934; 4 Kent's Commentaries (12 ed.) 334 to 336; Schouler, Wills Secs. 525, 526; 2 Jarman, Wills 272, 279; Blagge v. Miles, 1 Story 426 [3 Fed. Cas. 559].

The statute, 1 Vict. 26, Sec. 27, passed in 1837, changed this rule for England. Many states have altered their statute to follow the English statute. 18 Am. & Eng. Enc. Law (1 ed.) 930; Schouler, Wills Sec. 526; 2 Jarman, Wills 279. Hence they are not applicable in this

case.

The statute must be pleaded or is waived. 1 Bates, Pleading 110; Vore v. Woodford, 29 Ohio St. 245; Sturges v. Burton, 8 Ohio St. 215. Defendant will not be allowed to amend his answer setting up the statute of limitations. Angell, Limitations Sec. 285; Sheets v. Baldwin, 12 Ohio 120, 127, 129; Jackson v. Varick, 2 Wend. 294; Eldred v. Oconto Co. 30 Wis. 206; Wolcott v. McFarlan, 6 Hill 227.

Day is trustee and the statute does not run. Johnson v. Johnson, 51 Ohio St. 446, 460, 461 [38 N. E. Rep. 61]; Quinby v. Walker, 14 Ohio St. 193; Dabney v. Manning, 3 Ohio 321, 325.

An executor holds on the same terms as his testator. Perry, Trusts (1 ed.) Secs. 264, 269, 344, 828; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Quinby v. Walker, 14 Ohio St. 193.

The statute of limitations does not run against an express trust. Perry, Trusts (1 ed.) Secs. 828, 863; Sec. 4974 Rev. Stat.; Fuller v. McEwen, 17 Ohio St. 288; Quinby v. Walker, 14 Ohio St. 193; but if the statute runs it is the six-year statute. Section 4981 Rev. Stat.

Day is liable personally and not as executor. Quinby v. Walker, 14 Ohio St. 193, 198, 199; Perry, Trusts (1 ed.) Sec. 263; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Fuller v. McEwen, 17 Ohio St. 288; West v. Dean, 8 Circ. Dec. 797 (15 R. 261).

E. G. Johnson, H. C. Johnson and Lee Day, for defendants.

MARVIN, J. (Orally.)

The case of Burt Moore, Emma Gorham and William Idlor against Josephine Idlor and others, comes into this court by appeal from the court of common pleas.