substantial compliance is sufficient becomes applicable.'
The facts of the present case, showing written notice to the Company, followed by a course of correspondence by the insured, his attorney, his son and the Insurance Company requesting a return of the policy for this purpose, seem to this court to be sufficient to bring this case within the above quoted rule. See, also, Philadelphia Life Ins. Co. v. Mooney, E.&A. 1935, 117 N.J.Eq. 448, 176A. 166, for a similar holding on similar facts. So, if Daniel R. Douglas, the insured, could exercise the right to change the beneficiary, defendant Boyle would have no right to the proceeds of the policy. It was the declared intention of the insured to change the beneficiary, which intention was frustrated as to a formal requirement by the refusal of the defendant Boyle to surrender the policy for proper endorsement.
This poses the question, and in fact it is the second contention, as to whether the insured had a right to designate a change of beneficiary. A provision to that effect was endorsed on the policy and made a part thereof, and this provision was never cancelled or superseded. Therefore it would seem that the insured had the right down to the day of his death.
Defendant Boyle asserts that the transfer of the policy by the insured to her was an irrevocable gift and so there could be no effective change of beneficiary. A leading case on the subject of insurance policies as gifts inter vivos is Guardian Life Ins. Co. of America v. Mareczko, E.&A. 1933, 114 N.J.Eq. 369, 168A. 642. The following quoted portions are deemed applicable to the instant matter: 'A policy of life insurance may, like other choses in action, be assigned as a gift inter vivos, and the assignment requires no consideration to support it. The mere delivery of the policy to the donee, without written assignment, but with a clearly manifested intention to make a gift, is sufficient to satisfy the rule requiring delivery of the thing given. (citing cases.) * * * The gift of a policy of life insurance must go into immediate and absolute effect, and be irrevocable.' See above case, 114 N.J.Eq. at page 372, 168A. at page 644. The facts here do not seem to warrant a finding of the intention to make an irrevocable gift. At the time of the alleged gift, the right to effect a change of beneficiary was a part of the policy. No attempt was made in the following months to cancel this right, but on the contrary within a few months steps were taken to exercise said right. Such action partakes of the characteristic of revocability, not irrevocability. Nor does the testimony of defendant Boyle convince the court that this was not the insured's intention.
Conclusions of Law.
1. The court has jurisdiction of this action. See 28 U.S.C.A. § 1335.
2. The attempt by the insured to change the beneficiary of the policy in suit from Lucille Boyle to the executors, administrators or assigns of the insured was a reasonable compliance with the prescribed forms.
3. Daniel R. Douglas, the insured, had reserved to himself the right to change the beneficiary.
4. The transfer of the policy in suit to Lucille Boyle at or about the time of her designation as beneficiary of the policy, was not an irrevocable act.
Judgment for the proceeds of the policy, now in the registry of the court, will be entered in favor of defendants Douglas and Day.
Let an order be submitted in conformity herewith.
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