Opinion by
Thе plaintiffs brought suit against the Travelers’ Insurance Company to recover $3,500 representing the proceeds of two group life insurance pоlicies upon the life of Frank Herman. As the insurance was also claimed by the defendant, an interpleader was granted upon petition of the Insurance Company and the money paid into court. The action then proceeded between plaintiffs and defendant as claimants tо the fund. The insured, an employee of the Westinghouse Electric and Manufacturing Company, died on December 24, 1934. He held two life insurance certifiсates, which were after-wards superseded by policies, one for the face amount of $2,000, and the other for $1,500.
The insured several times exercised his right to change the beneficiaries named in the policies. The policy for $2,000 was originally payable to Emilia Yisnik. On May 3, 1932, he duly designated and namеd as beneficiaries the plaintiffs, Amelia Visnik and Miladin Visnik, his daughter and son-in-law, respectively, with whom he was then living. The original beneficiary named in the poliсy for $1,500 was Amelia Price, “Uncle,” whose identity is otherwise undisclosed. On May 3, 1932, the insured also designated the plaintiffs as beneficiaries of this second policy. It was conceded at trial that, on the date last mentioned, the designation of the plaintiffs as beneficiaries in both policies was regulаr and valid in all respects.
The claim of the defendant to the proceeds of the policies arises from the fact that on February 9, 1933, the insurеd had the policies made payable to the defend *401 ant, Anna Manee, as sole beneficiary. Finally, on December 20,1934, four days before his death, a re-designation of the beneficiaries in both policies was made .by the insured in favor of the plaintiffs, which affords the basis of their claim to thе insurance.
In the pleadings the issues were sharply drawn as to the validity of the respective changes of beneficiary from the plaintiffs over to defendant, and the eventual change back to the plaintiffs. The latter charged that on February 9, 1933, when the defendant was designated as beneficiary, the insured was intoxicated and the change then made was fraudulent and void. On the other hand, the defendant alleges that the last designation of рlaintiffs was invalid because the insured was in a dying condition and incapable of knowing the nature of his act at the time.
An additional question was raised by thе pleadings. In her original counterclaim, the defendant averred that the insurance money was properly payable to her in considerаtion of the various nursing, boarding, clothing and other services rendered to the insured. In an amendment to the counterclaim, filed several months later, the defendant set up a verbal agreement alleged to have been made with the insured on February 9, 1933, whereby he agreed to designate her as bеneficiary, and further that he would not thereafter make any change of beneficiary in the policies, in consideration of her services tо him as nurse. The defendant avers that she fully performed her duties under the alleged agreement, adequately caring for the insured during a period of аlmost two years. In their reply to this amendment, plaintiffs answered that the defendant received from the insured his monthly pension checks from his employеr, which had fully paid her for any services.
At the trial each claimant attacked the validity of the designation of the other as beneficiary, and thе case was submitted to the jury after a careful charge upon the issues of fact involved in the changes of benefi *402 ciary. The jury returned a verdiсt in favor of the plaintiffs. Defendant filed motions for judgment non obstante veredicto and for a new trial. The motion for judgment was not pressed. The cоurt in banc refused the motion for new trial, and judgment was entered on the verdict in favor of the plaintiffs, whereupon the defendant has taken this appeal.
The defendant assigns as error the refusal of the trial judge to affirm three points * for charge submitted on her behalf. Each of these points is predicated upon the proposition that the alleged verbal agreement of February 9, 1933, between defendant and the insured effected an equitable assignment to defendant of the policies, giving her a vested right to their proceeds, and estopped the insured thereafter from сhanging the beneficiary.
The law appertaining to the equitable assignment of the benefits of an insurance policy is well settled in this state. There is nо doubt that a beneficiary named pursuant to a definite agreement that he shall be so named, by virtue of a valuable consideration moving from him, аcquires a right in the policy or the proceeds thereof that will be protected against subsequently named beneficiaries who have no superior equity:
P. R. R. Co v. Wolfe,
*403 However, tlie evidence in this case does not call for the application of the principles governing an equitable assignment of the benefits of ah insurance policy. An examination of the record does not disclose sufficient testimony upon that point to entitle the defendant to have that question presented to the jury. Indeed, a verdict in her favor, based upon the theory of an equitable assignment of thе policies could not be sustained. The defendant’s own testimony precludes the existence of such an assignment to her of the policies. She concedes that the insured furnished money for his care from the pension checks he turned over to her. She also admits that he was free to nаme another beneficiary whenever he pleased, as clearly appears from her testimony as follows: “Q. You didn’t intend, then, to colleсt $3,500 when you took the policies?” “A. No, if he stay with me, all right, if he don’t, he could give to anybody he wants.” The points submitted by the defendant were inapproрriate in view of the character of this testimony.
It is clear from the record, particularly from the testimony of defendant and her witnesses, that the dеsignation of defendant as beneficiary on February 9, 1933, was not the result of a definite and binding agreement between the insured and defendant, based upon a valuable consideration. In our opinion the controlling issues in this case are the validity and bona fides of the respective and confliсting changes of beneficiary upon which the contending claimants rely. These issues depend upon the physical and mental condition of the insured upon the days when the changes were made, and whether at those times there was fraud or undue influence used in obtaining from him the beneficiary designаtions. These questions were properly submitted, to the jury which has found for the plaintiffs, and a review of the testimony does not convince us that its verdict should be disturbed.
Judgment affirmed.
Notes
Defendant’s second, third and sixth requested points for charge, which were refused by the court are in effect a statement from a different аngle of the same principle. The first of these points reads as follows:
“(2) If the jury find that Anna Manee furnished the decedent with the necessaries of life, and attended him in consideration of a promise by him to appoint her as beneficiary of the policies, she would acquire by reason of that agreement and because of the consideration furnished by her a vested right to the benefits.”