change. The policy was unavailable and the agent in charge could not take the position that it had been lost since he assumed that it was in the possession of the insured's former wife who would not release it to him.
It was only by reason of the restrictive regulations of the Prudential Insurance Company that decedent's intentions of naming his then wife as beneficiary did not become a reality. This conclusion is supported not only by the oral testimony of a managerial agent of the Company but is given further credence by specific forms which the decedent had filled out manifesting his intention to change his beneficiary but which could not be carried through solely because of the Company's insistence that the insurance policy accompany such request. This regulation is so deeply imbedded in the Company policy that the managerial representative of the Company, upon the Court's inquiry, categorically asserted that no person can change a beneficiary wherein an insurance policy is not in the possession or custody of the assured, even though it can not be said the policy is lost.
In order for a beneficiary other than the one named in the policy to show that she is entitled to the proceeds of the policy as against the named beneficiary, proof is required both of an intent to change and there must be some positive unequivocal act. Joseph v. New York Life Insurance Co., 308 Pa. 460, 162 A. 441; First National Bank of McKeesport v. Gable, D.C., 98 F.Supp. 632; Aetna Life Insurance Company v. Messier, D.C., 173 F.Supp. 90.
It is apparent that the insured did all that he could reasonably do to comply with the policy as evidenced by his consultations with the managerial representative of the insurance company and in the execution of forms which, under the restrictive policy of the Company, proved a nullity because of the unavailability of the policy.
Decedent's acts were positive, unequivocal and directed to every possible effort to change the beneficiary within the limitations of circumstances over which he had no control.
It is my considered judgment that the insured's attempted change of beneficiary was, as a matter of law, valid and effective and should be so recognized and that the Prudential Insurance Company of America, a corporation, pursuant to insurance policy No. D1106672 should pay the proceeds thereof to June Kistler Serfass.
An appropriate order is entered.
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