Citations
- 112 Ohio App. 31
Full opinion text
Doyle, P. J.
TMs case concerns the disposition of money received on policies of life insurance and accidental death insurance under the terms of an agreement entered into between two partners, each of whom had taken out life insurance and accidental death insurance on his life and designated the other as beneficiary.
The suit was instituted in the Court of Common Pleas of Butler County by The Oglesby-Barnitz Bank and Trust Company, Middletown, Ohio, as executor of the estate of Harlan D. Helsel, deceased, and was directed against the surviving partner, Virgil T. Clark.
The second amended petition alleged, in substance, that :
1. Harlan D. Helsel (the deceased) and Virgil T. Clark became partners in the business of public accounting, pursuant to a written partnership agreement bearing execution date of January 1, 1948.
2. The partnership continued until Helsel died on July 20, 1955, as the result of an automobile collision.
3. The partnership agreement provides that the life of each partner should be separately insured in the sum of $10,000, naming the associate partner as beneficiary; and, in the event of the death of one, the survivor should use the proceeds to purchase the deceased party’s interest. The premiums and costs of the insurance were to be charged as a partnership expense.
4. In compliance with the agreement, each partner insured his life for $10,000, and named the other beneficiary. They also each procured an accidental death policy in' the amount of $10,000, and designated the other as the beneficiary, with the designation “partner of the insured.” Later, each of the partners increased each policy from the amount of $10,000 to the amount of $20,000.
5. Following the accidental death of Helsel, the surviving partner presented to the insurance company proofs of loss and received the sum of $40,000, as the named beneficiary in the policies.
6. On January 26, 1956, the bank tendered conveyance of its “right, title and interest in and to the assets, including good will,” of the partnership, in its fiduciary capacity as executor of the Helsel estate, and requested the surviving partner to pay over all of the insurance proceeds which he had received — to wit, $40,000.
7. The defendant survivor “refused and does still refuse” to accept a continuing tender and to pay the insurance proceeds to the bank for the benefit of the deceased’s estate.
8. “Wherefore, plaintiff prays that the court will find and declare the defendant to be a trustee of sard insurance proceeds and will order and direct the defendant to do and perform the acts required of him by said partnership agreement, and upon Ms faiMre so to do will render judgment against the defendant and in favor of the plaintiff in the amount of forty thousand dollars ($40,000), with interest thereon from January 26, 1956, at six per cent (6%) per annum, and for all other proper relief.”
The surviving partner, Clark, in answer to this petition, pleaded: