of the change on the policy would have been a mere formal or administerial act on the part of the company, and was not a condition precedent to the taking effect of the change of beneficiary. Furthermore, by paying the money into Court, the company waived its right to insist upon literal compliance with the terms of the policy respecting change of beneficiary, and since the provisions for endorsement of the change on the policy is for the protection of the company, absence of the endorsement does not avail in favor of the rival claimant.
The comment which has been made as to the legal effectiveness of the change of beneficiary would also have application to an assignment if one had been duly executed by the insured, Leonard A. Reich, in favor of Della Josephine Reich, his wife. This would be true though the policy had not been delivered with the assignment.
A provision in a life insurance contract that no assignment should be of any force of effect unless the original assignment, or a copy thereof, is received at the home office of the company is intended for the protection of the company in making payments of insurance, but does not affect the force or validity, as against the insured, of any contract between the insured and a third person as to the ultimate receipt and enjoyment of the proceeds of the policy. In re Baird, D.C., 245 F. 504.
As to the assignment, I do not believe that one was ever executed by Leonard A. Reich in favor of his wife. In the affidavit signed in relation to the divorce proceeding, Della Josephine Reich specifically set forth that no assignment was made of said policy and, in fact, it was set forth that the money was advanced to her husband upon his statement that it would not be necessary to assign or otherwise transfer said policy, and that she would not require such an assignment to be made. She furthermore testified to this fact at the time of hearing in connection with the question of alimony. After a writ of replevin was filed for the policy, no answer was filed by her or her attorney although service had been duly made at the time of the original issuance of the writ, and subsequently when an alias writ was issued. If an assignment had been made of the policy, a perfect defense would have existed to the replevin action, as far as the policy in question is concerned, and that was the time when she should have spoken. In June of 1939, after the domestic differences became severe, Della Josephine Reich wrote and stated to the insurance company:
'In regard to a family dispute, I have Policy No. 280761 on the life of Leonard A. Reich. I have been advised to notify you by by attorney-at-law not to issue any new policies or make any loans, or release values of any sort on this contract as a suit would be brought upon Phoenix Mutual for whatever release or change was made by the company.'
In this letter no mention was made of an assignment and if the conditions existed as now related by Della Josephine Reich, I cannot bring my mind to a satisfactory explanation as to why some definite reference to the assignment or some action was not taken during the life time of Leonard A. Reich.
The assignment of a life insurance policy is the transfer by the individual to whom the policy was issued of his right or interest in said property to another person, and rests upon contract, and, generally speaking, the delivery of the thing assigned is necessary to its validity. Mutual Ben. Life Ins. Co. v. Sweet, 6 Cir., 222 F. 200, Ann. Cas. 1917B, 298.
In this case, the insured, Leonard A. Reich, did not deliver the policy to Della Josephine Reich, his wife. It was kept at a place in his home where each had access to the personal property of the other. Possession of the policy was gained through the wife taking it without the consent of her husband. When the fact was ascertained, he extended every possible effort, even by the filing of a replevin action, to regain possession. The assignment about which Della Josephine Reich complains would, therefore, never become legally effective, for even assuming the assignment to have been made, the policy was never delivered to the company for said purpose nor was the policy ever absolutely or unequivocally delivered to her. If the theory of Della Josephine Reich would be accepted as true, the actions of Leonard A. Reich would amount. at the most, to the obtaining of the money of his wife on the basis of false pretenses or representations. This would have extended to the wife the right to maintain an action against her husband, when the fact was ascertained, for the recovery of the financial loss which she sustained as a result thereof.
The Court should frown upon the acceptance of explanations, which are tinged with questionable circumstances, when made after the other party involved has died, and no possible opportunity exists to contradict, deny or explain the other side of the story, if one exists.
In addition thereto, no explanation has been made by Della Josephine Reich as to why Leonard A. Reich changed the beneficiary on his insurance contract on April 8, 1931, which was recorded on April 13, 1931, wherein his wife was designated as the beneficiary, and the daughter of his wife by a first marriage, Kathleen Reich, was designated as the contingent beneficiary. Della Josephine Reich stated that when the question of advancing the money for the repair and improvement of the property first arose, she and her husband consulted Attorney Stone in the spring of 1931. She also states that after it was agreed that certain advancements should be made, her husband took the policy and kept it for a short period of time. It is my judgment that the paper which Leonard A. Reich executed in the office of Attorney Stone was the change of beneficiary rather than an assignment of the policy, and that he carried out his intention by having the change endorsed on the policy.
If Leonard A. Reich made a parol gift of the policy of life insurance by a physical delivery of the policy, a written assignment would not be necessary. Hani v. Germania Life Ins. Co., 197 Pa. 276, 47 A. 200, 80 Am.St.Rep. 819.
However, I do not believe it has been established that the life insurance policy was delivered by Leonard A. Reich to his wife and, therefore, the principle of law to which reference has just been made would not have application.
It is my opinion that Della Josephine Reich has failed to establish her claim to said fund.
I further believe Willim P. Reich has established his claim to said fund as designated beneficiary.
Willima P. Reich has further established by the preponderance or weight of the evidence that no assignment of said policy was executed by Leonard A. Reich to Della Josephine Reich.
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