
    Clark v. Clark.
    
      Administrators and executors — Ownership of funds deposited in deceased’s name — Not established by proof of having lived with deceased as wife.
    
    In suit for accounting of bank deposit against administrator of deceased, by plaintiff claiming to have lived with deceased as his wife, evidence did not tend to prove ownership by plaintiff in funds deposited in name of deceased and taken by administrator.
    (Decided June 7, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Harry Hess, for plaintiff in error.
    
      Messrs. Kilgarriff £ Kilgarriff, for defendant in error.
   Hamilton, J.

Lizzie K. Clark brought suit in the court of common pleas against Alfred Clark, as administrator of the estate of Henry Clark, deceased. The petition alleges, among other things, that the deceased, Henry Clark, entered into a pretended contract of marriage with plaintiff, notwithstanding the deceased at the time was a married man; that, as a result of the pretended marriage, plaintiff and the deceased occupied the relation and status of husband and wife. The petition further alleges that during the time that that relationship existed there were set aside and saved from their respective earnings varying sums of money, and that the same were deposited in a bank account in the name of the decedent. Plaintiff states that she does not know the amount of money deposited, and asks for an accounting of the administrator, and an injunction to prevent the paying out of funds in the hands of the administrator in settlement of the estate.

There is some question raised here as to whether or not the action is one at law or in equity. The case was tried to the court on the theory that it was an equity case. However that may be, the record shows that both of the parties waived a jury, and that the case was submitted to the court, which rendered a judgment for plaintiff. Error is prosecuted to this court to reverse that judgment.

Some technical questions are raised by the plaintiff in error in the petition in error, but, since, in any view of the case, we are of opinion that the evidence fails to prove the right to recover, these questions are immaterial.

We have read the bill of exceptions, and the most that can be said for the evidence of the plaintiff below is that during the several years which she cohabited with decedent, as husband and wife, she did some little work, small daily engagements, for which she was paid at the rate of $2.50 per day. There is some evidence that on Saturday night she gave her husband, noAV deceased, some sums of money. There is no proof of any specific amount given to the husband by the plaintiff. There is no evidence of any instruction or arrangement about making any deposit in the name of the deceased husband. There is nothing in the evidence to show what the husband was to do with any money given him by plaintiff, if the same was done. In other words, there is a complete failure of evidence tending to prove ownership in the funds deposited in the name of the deceased, and found to his credit by the administrator, and taken charge of for administration purposes.

The judgment of the court of common pleas will be reversed, and judgment will be entered here in favor of plaintiff in error.

Judgment reversed.

Bu oh w alter, P. J., and Gushing, J., concur.  