Thе suit which gave rise to the appeal and cross-appeal was against the beneficiary named in a war risk insurance contract and the United States, praying reformation of the policy to conform to the express intention of the war veteran for change of beneficiaries. The court, though concluding that the plaintiffs had established their right to reformation, assumed that complete relief could be granted by adjudicating the defendant a trustee, and directing him to account for funds received or to be received on the insurаnce contract. It therefore dismissed the bill as to the United States and entered a decree directing the defendant to pay to each plaintiff one-sixth of the entire proceeds received or to be received by him as the designated beneficiary of the policy. The plaintiffs’ appeal challenges the adequacy of the relief and the cross-appeal the granting of any relief.
The evidence in the case not having been preserved, the facts found by the District Judge control. Condensed, they disclose that the insured war veteran was Fred Plerman Kaschefsky, brother both of plaintiffs and defendant; that while a soldier in the army оf the United States he was insured by a policy of war risk insurance in the amount of $10,000, with the defendant as the beneficiary named therein; that while stationed at Camp Jackson the soldier addressed several letters to his sister, Ameliа Reis, expressing his intention to make all of his sisters and brothers equally participating beneficiaries of the insurance contract, as it was his original purpose to do when he applied for the policy, at which timе he was, however, instructed to name but a single beneficiary. The court further found that after the death of the vеteran a document purporting to be his will, disposing of property other than the proceeds of the insurаnce policy, was offered for probate but met with the opposition of the veteran’s father, Godfrey Kaschefsky. To settle this controversy, plaintiff Adolph Kaschefsky and the father had an agreement preрared by an attorney in Royal Oak, Michigan, on January 6, 1919, later executed by all of the parties, by which they undertоok not to contest the probating of the will, in consideration of the defendant agreeing to divide the insurance money equally among all of the brothers and sisters of the deceased. Starting in 1919 and continuing until 1935, the defendant сarried out the agreement and distributed the proceeds of the policy. Thereafter distribution ceasеd upon the false representation by the defendant that the government had stopped payment. The аction was brought to reform the contract of insurance, to require defendant to make payments as agreed, and for an accounting.
Upon the facts found, the court concluded that the plaintiffs had sustained thе burden to establish a change of beneficiaries, and regarded the fact that the communications to thаt end did not reach the government until after the insured’s death, to be immaterial. With these conclusions we agreе. Claffy v. Forbes, D.C.Wash.,
The court also came to the conclusion that the agreemеnt of January 6, 1919, was supported by a valid consideration and entitled the plaintiffs to its specific performаnce, and that the deceased veteran, having done all that was within his power to do to effect a change in the beneficiary named in the insurance contract, the
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defendant, when he undertook to .recеive the payments due thereunder and to distribute them to the beneficiaries intended by the deceased to rеceive them, was acting .as a trustee for the other beneficiaries. With this we likewise agree. Ambrose et al. v. United States et al., D.C.N.Y.,
Notwithstanding the view entertained below, the plaintiffs were, however, entitled to the complete relief prayed for in their bill. In view of the attitude of the defendant in refusing to carry out the agreement, аnd giving a false reason therefor, the plaintiffs ought not to be left to the uncertain remedy of a mere money decree, nor even put to the expense of initiating contempt proceedings, if indeed noncоmpliance with the court’s decree, in view of its terms, might be regarded as contemptuous. Their right to receive their proportionate share of the avails of the policy from the government should be made cеrtain and beyond the hazard of its dissipation defeating judicial process.
' The cause is remanded for amеndment of the decree eliminating therefrom the order dismissing the bill of complaint as to the United ' States, reforming the policy in conformity with the prayer of the bill, and for such other relief as is consistent herewith, and as so amended, the decree below is affirmed.'