
    DESCENT OF MONEY DEPOSITED IN RAILWAY SAVINGS DEPARTMENT.
    Common Pleas Court of Crawford County.
    Samuel Burke et al v. Nicholas Waltbillig, Administrator, etc., et al.
    Decided, August 17, 1922.
    
      Gift — Descent of Personal Property — Section 8577, General Code.
    
    Money earned by an employee of the Pennsylvania Railway Company and deposited with savings department of such railway company payable to the wife of such employee at his death, is a gift within the meaning of Section 8577, G. C., and at the death of the wife, without issue and intestate, such fund passes, one half to the brothers and sisters or their representatives of the husband and one half to the brothers and sisters or their represntatives of the wife, under said section.
    
      Bah si 'Glosser; Scroggs & Monnett, attorneys for plaintiffs.
    TF. L. Geer and C. E. Dewdld, attorneys for defendants.
   Wright, J.

This is an action to determine the proper distribution of funds in the hands of Nicholas Waltbillig as administrator of the estate of Bridget Burke, deceased.

David Burke and Bridget Burke were husband and wife. David Burke was an employee of the Pennsylvania Railroad and as such employee, deposited part of his earnings with that company in a department conducted by it for the benefit of its employees, known as the employee’s savings fund of the Pennsylvania lines. This department has certain regulations which the depositor agrees to, among which is the naming, or designating of some person to whom the fund is to be paid in the event of death of the depositor. David Burke named his wife Bridget Burke, as the beneficiary or person to whom this fund was to be paid at his death.

David Bfurke died leaving a will. Bridget Burke, his widow, died shortly after, without having received the saving fund of her husband, amounting to about $4,000. She died intestate and without children.

The brothers and sisters of David Burke now claim, under the laws of this state that they are entitled to receive one-half of this fund in the hands of Nicholas Waltbillig, as administrator of Bridget Burke’s estate.

The brothers and sisters of Bridget Burke claim they are entitled to the entire fund.

The plaintiffs also claim a half interest in some real estate in the name of Bridget Burke and other property, but as there was no evidence upon that branch of the case, I have eliminated it from my consideration.

The plaintiffs, who are the relatives of David Burke, claim under Section 8577, which provides that when a relict of a deceased husband or wife dies, intestate and without issue, pos.sessed of property which came to such intestate from a former deceased husband or wife by deed of gift, devise, or bequest, or under Section 8574, shall go to the children of such former deceased husband or wife; or if there are no children or legal representatives living then it shall pass one half to the brothers and sisters of such intestate or their legal representatives and one half to the brothers and sisters of such deceased husband or wife or their legal representatives.

The plaintiffs claiming that the fund in the savings department came to the wife Bridget from her husband, David, and under the above section that they are entitled to one half of said fund.

The defendants claim that Bridget Burke did not acquire title to this fund from her husband by deed of gift, devise or bequest, but that she obtained title to it by contract, under and by virtue of the contract her husband made with the Pennsylvania Company designating her as beneficiary of the fund.

There is no question but what Bridget Burke was entitled to this fund, when her husband died. It was her’s absolutely to do with as she saw fit. But she failed to dispose of the fund during her lifetime, or even to draw it from the saving department of the railway company, and died without children, or without having made a will disposing of it.

Now to whom must it go. Shall Bridget’s brothers and sisters receive thé entire fund, or shall one half go back to her husband’s brothers and sisters.

To determine this, it is only necessary to answer one simple quetion. How did Bridget Burke acquire this money,

A large number of cases have been cited by counsel, none of which are authority for the question in this case.

The proposition seems simple. David Burke earned this fund as an employee. At his death he directed it to be paid to his wife Bridget. His wife could not draw from it prior to his death, or assign it; she had no authority of any kind over the money in any manner. David Burke exercised full authority over the fund; could draw from it under the rules of the department, and change the beneficiary at any time prior to his death. It was his money during his lifetime, and only became his wife’s at his death in the event some other person was not substituted as benefieiary.-

How can it be said that Bridget Burke acquired it by contract. Being named as beneficiary does not create any contractual obligations between her and her husband. She is merely .the subject of his bounty at his death, and when that event occurs,- then the law will aid or enforce its collection in her favor, not by virtue of any contract, but by reason of her being named a beneficiary in a deed of gift.

: There is an obligation on the part of the Pennsylvania Company to pay the money to Bridget Burke at her husband’s death, but such obligation does not arise by virtue of a contract to which Bridget Burke was a party, but is enforceable by operation of law; the remedy that she may have had to obtain the fund during her lifetime did not create the fund or pass it to her from her husband; it came to her as a pure gift from her husband.

The arrangement David Burke had with the savings department of the railway company, or rather the rules which they had governing savings accounts was the most effectual method of making a gift to a person that could be arranged. It has been alluded to as being in the nature of a testamentary bequest, but it has none of the characteristics, except the death of the person making the gift.

It would seem that the defendants claiming that Bridget Burke acquired this fund by contract, would be like a legatee under a will claiming he acquired his legacy by contract, when there would be nothing in the way of a contract, except the will itself.

It is my opinion that Bridget Burke obtained title to this fund during her lifetime and after the death of her husband, as a gift from him, and as such it should be distributed one-half to the brothers and sisters of David Burke, or their representatives, and one half to the brothers and sisters of Bridget Burke, or their representatives, under Section 8577, G-. C.

•An entry can be drawn in accordance with this finding. Judgment against defendant -for costs.  