The opinion of the court was delivered by: MCVICAR
This is an interpleader proceeding under the Act of May 8, 1926, c. 273, §§ 1-3 (28 U.S. Code § 41, par. 26 [ 28 USCA § 41, par. 26]). The court finds the following facts and makes the following conclusions of law:
1. On August 18, 1925, the New York Life Insurance Company, upon the application of Israel Goodstein, issued a policy of life insurance to him, No. 10,132,663, upon the life of said Israel Goodstein, in the sum of $5,000, naming as beneficiary his wife, Dora Goodstein.
2. The quarterly premium under the policy was $59.05, making the total annual premium $236.20.
3. September 4, 1928, the insured changed the beneficiary from Dora Goodstein to "Insured's Executors, Administrators or Assigns."
4. September 7, 1928, Israel Goodstein, the insured, was indebted to Ben Nydes in the sum of $300 for which he had given a check to Nydes, which had been returned n.s.f. A criminal proceeding, being a misdemeanor charge, was entered against Goodstein by Nydes. Subsequently Goodstein paid Nydes $115. On the same date, September 7, 1928, Goodstein was indebted to Nydes in the sum of $1,500 for money advanced by Nydes to Goodstein. On the same date Goodstein and Nydes entered into a written contract under seal, prepared by Goodstein's attorney (Nydes being without counsel), wherein it was agreed that by virtue of the $1,500 indebtedness aforesaid, to be canceled of that date, and an additional $1,500 paid to Goodstein on the same date, that Goodstein would assign the aforesaid policy to Nydes and that he would change the beneficiary to real -- "Insured's Executors, Administrators or Assigns." Also that upon payment of the balance due on the n.s.f. check of $185, that Nydes would return the check to Goodstein and the criminal proceedings aforesaid would be nol prossed, and that Goodstein and Nydes each would release each other from all claim of damages by virtue of said criminal proceedings.
5. The provisions of the contract aforesaid were executed by both parties. The assignment of the policy to Nydes was signed by Goodstein, acknowledged by him before a notary public and was delivered September 11, 1928. Goodstein at the time of the assignment was 51 years of age.
6. There is no evidence of fraud, duress, or of anything but the free and voluntary acts of the parties in the making and execution and carrying out of the contract aforesaid.
7. Israel Goodstein died June 14, 1931.
8. August 8, 1931, the New York Life Insurance Company, being the insurer in the policy aforesaid, filed the bill of interpleader in this case, naming as defendant and claimants of the insurance money, the assignee of the policy, Ben Nydes, and Dora Goodstein, the wife of the insured, she being the original beneficiary named in the policy.
9. October 13, 1931, the insurance money, $4,538.13, was paid into court. The balance of the policy, exclusive of costs, had been loaned to the insured.
10. December 17, 1931, a feigned issue was directed by this court wherein Nydes was named as plaintiff, and Dora Goodstein as defendant. The parties were directed to file the proper pleading.
11. Nydes filed a pleading designated as his statement of claim, wherein he alleged that he was entitled to the insurance aforesaid by reason of the assignment and delivery of the policy to him. Defendant, Dora Goodstein, filed a pleading designated as her affidavit of defense, wherein she admitted the execution of the assignment of the policy ...