
    WHAT MAKES A POLICY OF INSURANCE AN OHIO CONTRACT.
    [Circuit Court of Hamilton County.]
    Abraham Plaut, Administrator of the Estate of Michael Schradzki, Deceased, v. The Mutual Life Insurance Company of New York.
    
    Decided, January 7, 1899.
    
      Life Insurance — Policy Issued by a Foreign Corporation — Becomes an Ohio Contract, When — Application of Section 3629.
    1. Where application for a policy of insurance is made in Ohio, and the policy delivered in Ohio, and the premiums paid in Ohio, such policy is an Ohio contract and governed by the laws of Ohio, notwithstanding the policy is issued by a New York corporation.
    2. Where a policy of insurance was issued prior to 1879 — Held: That the provisions of Revised Statutes of Ohio, Section 3629, do not apply.
    Hale, J., Caldwell, J., and Marvin, J., of the Eighth Circuit, sitting in the First Circuit; opinion by Marvin, J. (orally).
    
      
       Affirmed by the Supreme Court, without report, December 3, 1901 (65 Ohio State, 586).
    
   This case comes here on a petition in error, the plaintiff here being the plaintiff below, the defendant here being the defendant below.

The case was tried below without a jury, that being waived, to the court, and it resulted in a judgment for the defendant. A motion for a new trial being overruled, a petition in error was filed here. There is a bill of exceptions in the case, which purports to state all the evidence. Among the items of evidence was an agreed statement of facts, and in that agreed statement of facts it was agreed that the will of Hannah Schradzki should be read in evidence, and 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 about it; but in the view we take of the case as to what it is, is not material, but I call attention to it as being a fact that there is nothing in the record to show more than I have stated as to what the will is.

The facts are these: Michael Schradzki and Hannah Schradzki were husband and wife; they both died without children. Hannah died in 1887, and Michael died in 1894. In 1868 or ’69, policies of insurance were issued upon the life of Michael. Two policies were issued, one on the 20th of April, 1868, for $3,000, and the other on the 24th of April, 1873, for $1,000. The beneficiary named in each policy was Hannah Schradzki, the wife of Michael Schradzki, whose life was insured.

The premiums upon those policies, and each policy was paid during the lifetime of Hannah Schradzki by Hannah Schradzki. Hannah Schradzki died intestate, bequeathing her property in certain bequests to persons named in her will, and the balance of her property, I believe, 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 Schradzki. The policies in each ease provide that payment shall be made of the amount insured to Hannah Schradzki, and if not living 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 died, neither of them having any children. So that when Michael Schradzki, whose life was insured, died, there was no one 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 Section 3629 of the Revised Statutes of Ohio 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 husband or other person, shall inure to her separate use and benefit, 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 ease 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 policy was issued in New York. The facts are that the application was 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., 621-2) 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 et al, in 50 Ohio St., 602, 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 Section 3629 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.

Smith & Kuhn, for plaintiff.

Cohen & Mack and Stephens & Lincoln, for defendant.

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 estate, the executor of her will. The statute does not apply.

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 he did. It was said that the defendant was estopped; but that is immaterial. We hold that they were the property of the wife at her death, and the policies became a part of her estate, and would come under the provisions of her will, whether the policies are named in the will or not.

Judgment affirmed.  