Charch v. Charch

• Decision Date: 26 January 1898
• Parties: CHARCH v. CHARCH et al.
• Court: Ohio Supreme Court

49 N.E. 408

57 Ohio St. 561

CHARCH v. CHARCH et al.

Supreme Court of Ohio.

January 26, 1898

Error to circuit court, Montgomery county.

Action by John P. Charch, executor, against Emma B. Charch and others. A judgment for defendant Emma B. Charch was reversed by the circuit court, and she brings error. Reversed.

The controversy had its origin in the court of common pleas, by the filing of a petition by John P. Charch, as executor of John S. Charch, deceased, against Emma B. Charch, Kate Brendel, Nettie Bonner, Minnie Charch, and John P. Charch, in which it was averred, in substance, that John S. Charch died testate in the summer of 1891, and his will and codicil thereto were thereafter probated, and plaintiff appointed executor; that he left Emma B. Charch, widow, and the other defendants, his children, all of full age; that during his life John S. Charch united with an order called the Legion of Honor, which order created a fund for the protection and benefit of families or members thereof,-the family, or such or any of them as the member directs, to receive upon his decease not to exceed $3,000; that when said Charch became a member he directed that, in the certificate issued to him his wife, Emma B., should receive the amount payable at his decease; and that after his decease, in the fall of 1891 Emma B. received that amount from the order, no other direction having been given the said order. Then follow like averments respecting membership, etc., in Lodge No. 48, of an association known as the Ancient Order of United Workmen; the issue of a certificate, also payable to Emma B., which was never changed; and the receipt by her, about January 1, 1892 of $2,000 from the association thereon. The petition further stated that the defendants other than Emma B. and John P claim that the testator, at the time of making the codicil referred to, made an agreement with Emma B. whereby she was to receive a further sum by will, and she in turn was to pay over the amounts she would derive from the aforesaid insurance; that in the codicil the testator bequeathed to her an additional sum of $1,000; that the will and codicil are still in force; that she has accepted under the same, but refuses to pay over the insurance money; that, if Emma B. is liable for the return of the money, the amount due is $5,000 with interest, etc., for which judgment is prayed. Emma B. Charch answered, asserting her rightful claim to the insurance money, and denying the making of the contract alleged; also, setting up the provisions of the will in her favor, in these words: ‘That the said will provides for the payment to her, during her life, of the sum of $100 per month, so long as her two daughters Anna M. Charch and Minnie Charch remain unmarried, and after their marriage the sum of $70 per month, and also secures to her the use of the residence, No. 348 South Main street, Dayton, Ohio, during her natural life, free of taxes, assessments, and expenses of repairs; and the furniture contained in said house, and a horse, harness, and carriage, were devised to her absolutely.’ She also averred that the estate was of the value of at least $80,000, and that the provisions under the will, which she accepted, were much less than she would have been entitled to under the law. She further averred that during her married life she inherited from her father $1,000; that her husband took charge of it, and purchased a piece of land which he conveyed to a son-in-law, and that, at the time of the making of the codicil, she requested him to provide for the payment to her of that sum, which he did by the bequest of $1,000; and that sum was bequeathed for that purpose and no other. Kate D. Brendel and Nettie Bonner answered, denying, for lack of information, the averments of the petition as to the certificates providing that Emma B. Should receive the amounts named therein; also, denied that the widow received the money from the companies, and averred that it was collected by the executor, and improperly paid over by him to her. And, by cross petition, they set up that the dues and assessments in both orders were paid by John S. Charch personally; that the widow had no vested right therein; that the sum to be paid by each order upon the death of John S. Charch were subject to his disposition, either by assignment or by will; that by his last will said testator directed that his said executor should collect the insurance upon his life (intending to include and dispose of the insurance in the petition mentioned), and that he should distribute the proceeds of the same in accordance with the terms of the will and codicil; that this intent was made known to Emma B. at the time of the execution of the codicil, and that she then expressed her approval of and satisfaction with the same, and subsequently, after the probate of the will and codicil, elected to take under the same, and has since received the benefits thereby given; that they (these defendants) are legatees and devisees under the will, and that as such there is due to each of them a balance of $2,000, and interest; that the same should properly be paid out of the proceeds of the insurance on the life of decedent, including that improperly paid to said Emma B. And they therefore join in the prayer of the petition for judgment. To this pleading Emma B. replied, denying the new matter. The common pleas, upon trial, found the issues for Emma B. Charch, and rendered judgment for her. This judgment was reversed by the circuit court. Its finding is: ‘(1) It was manifest from the will and codicil of said John S. Charch, testator, that he intended to, and did, dispose of all the insurance on his life, amounting to the sum of sixteen thousand five hundred dollars ($16,500), without regard to the beneficiary stated in the policy. (2) That the said widow, Emma B. Charch, elected to take under the will of her husband, and continues to assert her right under the said will, and that if she demands the insurance money aforesaid, which is bequeathed to other party than herself, she acts in contravention of said will. (3) That having elected to take under the said will, and continuing to assert her right to all the benefits thereby conferred, she is estopped to make any claim to the insurance money covered by the bequest in the will and codicil, and that she must therefore return the said sum of five thousand dollars so received by her, with interest.’ Then follows a final judgment against Mrs. Charch for $5,000, interest and costs. She asks a reversal of this judgment.

Since the method by which the beneficiary of a certificate in a beneficial association may be changed must conform to that prescribed in the by-laws of the association, a change of beneficiary can be made only by surrender of the policy, if the by-laws so require.

Syllabus by the Court

1. Where a member of a beneficial association organized under section 3630, Rev. St., has caused the beneficial certificate issued by the association upon his life to be made payable to his wife, such member cannot change the beneficiary except in the mode pointed out by the by-laws of the association. And where such by-laws provide that a change of beneficiary can be made only by surrender, and issue of a new certificate such change cannot be made (the wife being in life) by will. Arthur v. Association, 29 Ohio St. 557, approved and followed. And the rule is not different where a like certificate is issued by an association organized in another state, doing business in this state under section 3630e, Rev. St., where the statute which authorizes the organization permits the association to make by-laws regulating the payment of benefits, and by-laws made accordingly require a surrender of the old and the issue of a new certificate in order to effect a change in the person of the beneficiary.

2. A provision, in the last will of a husband, which directs the payment to his wife of a sum of money, which is in fact but the return to her of money which he had borrowed from her and used for his own purposes, and was so understood by both parties at the time the will was executed, will not furnish a consideration to support a promise on her part to surrender to the estate property belonging to her in her own right, even though it should be found that the will purports to dispose of such property.

3. The intent of the testator, the guide in the construction of a will, is to be gathered from a consideration of the entire instrument; and, where any part of a will is ambiguous, oral proof may be heard of the circumstances of the testator at the time of the making of the will, of his estate, and of the objects of his bounty. But where a clause of a will, taken in connection with the whole, is not of doubtful import, and the words of the will are applicable to any subject, they are to be applied accordingly, and the intent of the testator must be derived from the language he has used. In such case, parol evidence cannot be admitted to contradict, add to, or explain the contents of the will.

4. If it be charged that the provision involves a false description, and that there is nothing for the provision, giving to the language its ordinary meaning, to operate upon, the burden of establishing that fact is upon the party alleging it.

5. The general rule is that when a will assumes to dispose of property not owned by the testator, but belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will. But the language expressive of the intent to dispose of the property of another must be unequivocal. If the provision, taken in connection with the entire instrument will...