
    No. 361.
    CLEVELAND NATIONAL BANK v. BARRY BROS. CO. et al
    Ohio Court of Appeals, Cuyahoga County
    No. 4129.
    April 16, 1923
    This opinion 'has not been published except in Abstract
    Appeal; Decree for Appellants
    Attorneys — J.. W. Mooney and L. J. Grossman, for Cleveland National Bank; Payer, Winch, Minshall & Karch, for Barry Bros: Co:
   VICKERY, P. J.

Vickery and Sullivan (Levine not Sitting), JJ.)

Epitomized Opinion

This is an action by the Cleveland National Bank to subject a life insurance policy for the benefit of creditors. The various insurance companies were made parties defendant, including the children of Barry. The evidence disclosed that one Barry carried on an extensive fire insurance business in the city of Cleveland under the firm name of The Barry Bros. Co. At times Barry was derelict in sending in che premiums collected by him. On June 8, 1914, the insurance companies sent representatives to Cleveland in order, as they contend, to insure a final accounting and to cover any discrepancies which might arise by reason of Barry not paying them the premiums, they induced Barry to take out a policy of life insurance on his life for their benefit to secure them for any indebedness. A month there, after Barry took out a $20,000 policy with the Michigan Life Insurance Co. payable to the Barry Bros. Co. at his death. The insurance companies claim that the premiums upon this policy were paid by them. Nothing was reduced to writing and the policy provided that the beneficiary might be changed at any timé. Four years afterwards Barry became ill, and shortly before his death he changed the beneficiary from the Barry Bros, to his children. The insurance companies contend in the Common Pleas Court that the policy belongs to them by virtue of the above agreement and that by the terms of that agreement a trust was engrafted on this policy in favor of the insurance companies. The case was tried before late Judge Neff and a judgment was rendered in favor of the bank and the insurance companies. Appeal was prosecuted to the Court of Appeals of Cuyahoga county. There the court held:

1. Managers and officers of a corporation, such as officers of an insurance company, are not parties within the meaning of the statute which prevents one party from testifying as to the terms of a contract after the other party is dead; therefore the testimony of the insurance companies’ representatives was admissible in evidence.

2. In order to engraft a trust upon a contract, the law requires that the evidence to establish such trust should be clear, certain and conclusive, not only of the existence of the trust, and that too at the time of the contract, but also as to its terms and its conditions,

3. The pleadings conclusively show that the insurance companies did not clearly understand the terms of the contract, inasmuch as they first claimed that the agreement was made for the benefit of all the creditors, later for the benefit of seven insurance companies, and finally for the benefit of only four insurance companies.

4. Inasmuch as insurance policy did not contain a stipulation against change of beneficiary or contain therein the terms of the trust, these omissions tend strongly to disprove the existence of any such trust agreement.

Judgment for Barry’s estate.  