Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
This is a controversy between the beneficiary of a life insurance policy and a person to whom the insured had assigned the policy as collateral for a loan. The insured died, leaving the loan unpaid.The assignee claims an amount sufficient for repayment. The contending beneficiary is the widow of the insured who after the assignment became a substituted beneficiary, through exercise of the power to change the beneficiary reserved in the policy to the insured. She claims the entire amount of the proceeds on the theory that she acquired a "vested interest" which had not been affected by the assignment. The insurance company interpleaded the two claimants.
The district court concluded, 92 F.Supp. 994, as a matter of law, that the written assignment upon which the claim of the assignee was based did not affect the vested right of the beneficiary; that by the assignment the assignee acquired nothing more than the interest of the insured in the policy of insurance, and that inasmuch as the insured's right was contingent upon his survival of the beneficiary, the assignee took nothing.
The pertinent provisions of the insurance policy read as follows:
"Assignments. The Company assumes no responsibility for the validity of any assignment hereof and shall not be held to have notice of any assignment of this policy until the original assignment, or a copy thereof is received at its Home Office."
"Beneficiary Provisions. Unless otherwise provided herein, upon the death of any beneficiary hereunder during the lifetime of the insured, any interest of such beneficiary shall revert in equal shares to any surviving beneficiaries then designated hereunder, but if there be none to the insured or assigns. If the insured has reserved the right to change the beneficiary hereunder and such fact is recorded on this policy, the insured, if of legal age, may, whenever and as often as he likes, change any beneficiary designated herein by filing at the Home Office of the Company a written notice thereof, duly executed and accompanied by the policy for record of the change thereon by the Company."
"Rights of Insured. If the right to change the beneficiary has been reserved to the insured, an assignment, release or surrender of this policy or any interest therein by the insured, if of legal age, shall operate to the extent thereof to assign, release or surrender the interest of any and all beneficiaries hereunder."
The contract of insurance was entered into in New Jersey and the assignment took place there. We, therefore, look to the law of that state for the solution of this problem.*fn1
Sullivan et al. v. Maroney et al., 1909, 76 N.J.Eq. 104, 73 A. 842, 844, affirmed, 1910, 77 N.J.Eq. 565, 78 A. 150 is the fountainhead of a long line of cases which hold that under New Jersey law a beneficiary takes a vested interest*fn2 in a life insurance policy notwithstanding the reservation of the right in the insured to change the beneficiary, and that where a policy stipulates the way in which the beneficiary may be changed, that procedure must be followed in order that the interest of the original beneficiary may be divested. The Sullivan case spells out the doctrine that "There [are] * * * two sets of interests in [a] policy - the beneficiaries * * * and the representatives of the insured * * *. Each of these interests [may be] subject to assignment. Neither one [can] * * * assign anything excepting that which [will] come to that one, and the assignment of neither [can] possibly impinge upon the rights of the other".
However, it is equally important and as clearly recognized by the courts of New Jersey that primary definition and delimitation of the interest of the beneficiary must be found in and measured by the terms of the contract of insurance out of which solely his rights arise.*fn3 Therefore, in this case in order to determine whether the insured exercised rights and affected interests which were his or whether he ineffectually attempted to exercise rights and affect interests belonging to the beneficiary, we must look to the terms of the policy. Under the heading "Rights of Insured", we find the agreement that "an assignment * * * of [the] policy or any interest therein by the insured * * * shall operate to the extent thereof to assign * * * the interest of any and all beneficiaries" if the "right to change the beneficiary has been reserved by the insured."*fn4
This language clearly indicates an intention to reserve to the insured the power to alter both his interests and those of the beneficiary, whatever they might be, by assignment of the policy.*fn5 The instrument which creates the beneficiary's interest creates it subject to this power.
The New Jersey "vested interest" concept of the beneficiary's status is not incompatible with this contractual arrangement.*fn6 The New Jersey courts recognized that the reservation of the right to change beneficiaries is not sufficient to prevent the beneficiary's interest from being vested. Yet, the right to change beneficiaries itself is nothing more than a power of defeasance in the insured which he may exercise over the beneficiary's vested interest. The reservation in the policy of additional rights to the insured simply subjects the interest of the beneficiary in and from its inception to additional powers of defeasance. It does not change the "vested" character of the beneficiary's interest.*fn7
But whatever the nature and status of the beneficiary's interest may be conceptually, it is argued that the judge made law of New Jersey recognizes only one way of defeating a beneficiary's claim, namely, a formal change of beneficiary. We think the New Jersey cases are not so sweeping. In the cases, general language of which is relied upon for the stated proposition, the problem was whether an insured who attempted to change the beneficiary had complied with the requirements of the policy for so doing.*fn8 There was no question of the relation of the rights of an assignee to the rights of a beneficiary. We do not regard these cases as controlling here or even as indicative of what the courts of New Jersey would hold in this situation. To the contrary, we are ...