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August 14, 1939


The opinion of the court was delivered by: FORMAN

The complaint alleges the following facts: On June 1, 1926 plaintiff issued a policy of insurance on the life of Joseph DeRoulhac Moreno in the sum of $3,000 payable to Therese Marie Moreno, the wife of the insured. Pursuant to a request of the insured on October 23, 1935, plaintiff changed the beneficiary in order to make the proceeds of the policy payable to his estate. The beneficiary was again changed pursuant to another request of the insured, and at the time of his death the policy was payable to Marjorie E. Bathurst. It alleges its willingness to pay over the proceeds of the policy, but that conflicting claims thereto have been asserted. Marjorie E. Bathurst has demanded the money by virtue of her being the beneficiary designated in the policy. Therese Marie Moreno has also demanded of the plaintiff the insurance money on the ground that the change in beneficiary was of no legal effect due to the mental incompetency of the insured, and due to the coercion and undue influence exerted upon the insured by Marjorie E. Bathurst. Plaintiff also alleges that Frederic Gilbert Bauer has asserted a claim against the proceeds of the policy as a general creditor. It is requested that these adverse claimants interplead and settle their claims among themselves.

Plaintiff has paid over the money into the Registry of this court, and an order that the defendants, Marjorie E. Bathurst, and Therese Marie Moreno, interplead has been entered.

 The interplea of Therese Marie Moreno alleges the illegality of the change in beneficiary due to the incompetency of the insured and his submission to the coercion and undue influence of Marjorie E. Bathurst. In addition she alleges that the transfer was against public policy as tending to disrupt the normal marital relations between her and her husband, to estrange and alienate the affections of her husband, and to prevent a resumption of their normal married life.

 Marjorie E. Bathurst demands the proceeds of the insurance policy and joins issue with the allegations contained in the plea of Therese Marie Moreno.

 The following stipulation has been entered into by the parties:

 "7. The case on behalf of Therese Marie Moreno will be presented to this court in the form of depositions and documents. It is agreed that the court may consider the case upon these proofs and the pleadings as if a formal motion for a dismissal were made by Marjorie E. Bathurst, contending that upon the facts so presented and the law the said Therese Marie Moreno has shown no right to relief. Said motion is based upon the procedure outlined in Federal Rule 41(b) [ 28 U.S.C.A. following section 723c]. If the court shall be of the opinion that said motion should be granted, it is agreed that a decree may be entered in favor of the said Marjorie E. Bathurst without prejudice to the claim of Frederic Gilbert Bauer, Trustee, as a creditor. If this court shall be of the opinion that this motion should be denied, then the said Marjorie E. Bathurst will be given an opportunity to present such proofs as she may desire either in open court or by way of deposition and the said Therese Marie Moreno may thereafter present such further proofs in rebuttal thereof by deposition or otherwise as she may desire.The determination of this cause shall then abide the court's consideration of these proofs."

 An analysis of the documentary proofs presented herein disclose the following circumstances: The insured Joseph DeRoulhac Moreno was an eye, ear, nose and throat specialist with the rank of Major in the Medical Corps of the United States Army at the time of his death. On October 9, 1911, he was married to Therese Marie Moreno, and between 1928 and 1932 they resided together on the military reservation at West Point, New York. Around 1930 Major Moreno met Mrs. Marjorie E. Bathurst of Radburn, New Jersey, whose young son was a patient at the hospital in West Point. This meeting marks the inception of a friendship which precipitated divorces of Major Moreno and Mrs. Bathurst from their respective spouses, culminating in the marital engagement of Major Moreno and Mrs. Bathurst, their ultimate union being doomed by virtue of Major Moreno's decease. This meeting also marked the beginning of frequent visits to Mrs. Bathurst's household in Radburn.

 In 1932 Major Moreno was transferred to Boston, Massachusetts, and at that time Mrs. Bathurst's and Major Moreno's affections for each other had deepened into love and affection. At this time, however, there was an interval in which they did not see each other.This pause was broken when Major Moreno left Boston in the fall of 1934 for a three months stay at the Medical Field Service School, Carlisle, Pennsylvania. On his way to Carlisle he communicated with Mrs. Bathurst to ascertain if their affections for each other had diminished. This meeting evidently is the climax of the courtship in which Major Moreno ascertained that life with Mrs. Moreno had become intolerable and unbearable due to his love for another woman.

 He returned to his wife in Boston around the first of the year 1935, and at that time he disclosed his love for Mrs. Bathurst, and requested his freedom in order that he might be married to her. In February he left his wife. Between the following April and June he was confined in the hospital at Fort Banks, Winthrop, Massachusetts due to a heart condition. At the end of his hospitalization he spent a six weeks sick leave with Mrs. Bathurst in order to convalesce.

 On the same day he made his will making Mrs. Bathurst his sole beneficiary and executrix of his estate. A few days later he directed the Acacia Life Insurance Company to change the beneficiary of the policy in suit from Mrs. Moreno to his estate. Subsequently, he directed that the beneficiary be changed from his estate to Mrs. Bathurst.

 On December 28, 1939, Major Moreno commenced a suit for divorce, and on the following day he sailed for Manial, Philippine Islands, where he was connected with the Sternberg General Hospital. On August 5, 1936, the following summer, he was given a final divorce decree, leaving him free to marry Mrs. Bathurst who remained in the United States. This marriage was precluded by his death on October 16, 1936.

 There is testimony indicating that Major Moreno was self-conscious about his conduct, which he admitted to be reprehensible. This compunction manifested itself following his return from Carlisle, Pennsylvania, and there is evidence of the development of a complete change in personality. He was indecisive in that he could not determine whether he should marry Mrs. Bathurst or reconcile himself with his wife. In this dilemma he resorted to drink, and even expressed a desire to commit suicide. He became irritable, nervous, surly, quick-tempered, ...

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