The opinion of the court was delivered by: WILLSON
This case was tried non-jury before the late Judge Stewart in October of 1952. It was assigned to this court on July 11, 1955. I have conferred with counsel for all the parties. It has been orally agreed by all counsel that I may decide this case upon the record without argument.
The plaintiff, Ruth Amelia Wilkins, wife of Robert R. Wilkins, a former member of the United States Army Air Corps who was killed in action while on active duty, hereinafter referred to as the insured, brings this action to recover on a policy of insurance issued to the insured under the National Service Life Insurance Act of 1940, 38 U.S.C.A. 801 et seq. She sues the United States of America and Myrtle C. Wilkins, the mother of the insured. The defendant, Myrtle C. Wilkins, has filed an answer claiming such insurance, and the Government has answered setting forth in effect that both the mother and the wife of the insured claim the insurance and asks the court to determine which is entitled to receive it. Upon all the evidence, the court makes the following:
1. Plaintiff is a resident of Pittsburgh, Allegheny County, Pennsylvania.
2. The individual defendant is a resident of Pittsburgh, Allegheny County, Pennsylvania.
4. On June 18, 1942, the insured applied for a United States life insurance policy in the amount of $ 10,000, naming as principal beneficiary his mother, Myrtle C. Wilkins, the individual defendant, and as contingent beneficiary his father.
5. This policy was granted to insured as of May 21, 1942.
6. The plaintiff married to decedent on August 28, 1943, and on May 26, 1944, a daughter, Susan Marie Wilkins, was born of this marriage.
7. In May, 1944, at Biggs Field, El Paso, Texas, the insured filled out and filed a clearance sheet stating Ruth Amelia Wilkins, plaintiff, to be the beneficiary under his National Service Life Insurance Policy.
8. This clearance sheet executed at Biggs Field, El Paso, Texas, has disappeared, and a copy thereof was not available at the time of the hearing.
9. In May, 1944, at Topeka, Kansas, the insured similarly filled out and filed a second clearance sheet stating Ruth Amelia Wilkins to be the beneficiary under his National Service Life Insurance Policy.
10. This clearance sheet has also disappeared and a copy thereof was not available at the time of the hearing.
11. Subsequent to the execution of these clearance sheets, the insured orally informed members of his crew that the beneficiary of his National Service Life Insurance Policy was Ruth Amelia Wilkins, plaintiff. At some time prior to the execution of these clearance sheets and prior to the dates on which the insured orally informed members of his crew that the beneficiary of his policy was plaintiff, the ...