272 F. 99 | 4th Cir. | 1921
We adopt the following clear statement of facts made by the District Judge:
• “On July 31,1915, the New England Mutual Life Insurance Company, hereinafter called the ‘company,’ issued a policy for $5,000 to Raymond H. Dur-boraw. As he was then unmarried, it was made payable to his sister, Katherine Reid; but he reserved the right to change the beneficiary when and as often as he saw fit, by filing at the company’s home office a written request for such change,.to take effect only when endorsed by the company on the policy. Nearly three years later, he wrote to the agent through whom he had effected the insurance that he had married five days before, and wanted his policy to at once be made payable to his wife, so as to take effect ‘to-day, June 16, 1918,’ adding, ‘I put this in this way, so that if I should go before the change is recorded this letter will be evidence of my desire in the matter.’ He gave his wife’s name, and asked if this was sufficient information, or if any other step was necessary.
“The agent had some time before left the employ of the company, ana on the 21st day of June he sent Durboraw’s letter to the general agent of the company at Des Moines, Iowa, and on the same day wrote the insured: ‘In regard to the change in beneficiary, I am sending your letter to headquarters, so that your wish will be made effective at once. The proper blank will be sent to you for your signature. This blank, together with your policy, will be sent to the home office, where the change of beneficiary will be endorsed on it. This will be done without expense to you.’
“On the 28th of June, the company’s general agent at Des Moines wrote to the insured that he had been advised that he desired to change the beneficiary, and inclosed blanks for the purpose, which he told the insured to sign, date, and have witnessed, and return with the policy, adding that the desired change would be then made. When this letter was received, both the insured and his wife were at Moorhead, Minn., teaching in a summer school. After the school closed, they had planned to go to Hinsdale, Mass., for a month or more, and after that to locate in New York City, where both expected to take courses at Columbia Dniversity.
“It so happened that the blanks and policy got into baggage that they put in storage, and in consequence were inaccessible until fall. On the 22d day of August, the insured, in sending from Hinsdale his annual premium, stated: T shall be unable to send you the blanks concerning change in beneficiary of*101 said policy for some weeks yet. I trust the delay will be of no particular consequence. I will be able to send it soon after September 1st.’
“On the 23d of September, the insured executed the two duplicate forms of notice of change of beneficiary, in the presence of one George W. Metcalf, who duly witnessed the same. Shortly before that time the insured and his wife had begun housekeeping in an apartment in New York City. They both entered Columbia. For some hours every day ho was engaged in teaching, and during others in studying. They had their new home to lit up. They had a succession of guests, and were very busy. It may have been that the policy was where it took a little trouble to get at it. At all events, for some reason or other, he overlooked forwarding to the company either the policy or notice of change of beneficiary. In the latter part of October he was taken ill with the iiu, and although ho was only 35 years of age, and had been in excellent heaUh, he died on November 3, 11)18. Twelve days later his widow sent the notice of change of beneficiary to the company. The sister persisted in her claim. The widow sued the company in Iowa; the sister in Maryland. The company, availing itself of the provisions of the act of Congress of February 22. 1917 (chapter 113, 39 Slat. 929 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 99.1a]), filed a bill of interpleader here and paid the amount of the policy into the registry of the court.”
We regret our inability to agree with the District Court that the action of the assured accomplished a change in the beneficiary of the policy. The policy provides :
“When the right of revocation has been reserved, the insured (with the assent of the assignee, if any), upon written request filed with the company at its homo office, may from timo to time designate a new beneficiary hereunder, or have the policy made payable to his estate, such change to take effect only when endorsed hereon by the company.”
Regrettable as it may be, we see no escape, either on principle or authority, from holding that no reasonable effort was made to exercise the power of changing the beneficiary in the method contracted for, and that the original appointment of the sister as beneficiary must stand.
Reversed.