Before EVANS, CLARK, and FRANK, Circuit Judges.
The dispute which provoked this appeal is between two parties who are contesting for the proceeds of a $10,000 life insurance policy which matured Jan. 6, 1943, upon the death of the insured, Olin T. Nye. The trial court submitted the case to a jury. A verdict favorable to the defendants, who were the insured's adopted daughter and her children, and against the plaintiffs, who were the administratrix of the estate of a brother of the insured and the widown of said brother, was returned. A judgment in favor of defendants was duly entered. This appeal followed.
The insured was a lawyer and had been a surrogate and county judge for many years. The policy was issued, October 31, 1927. In 1940 the insured changed his beneficiary to his adopted daughter (interest to her for life and principal to her children). His wife had died. He had two adopted children - a son in whose favor another policy ran, and one of the defendants herein, Caroline D. Nye Sams.
The Facts - On January 1, 1943, Judge Nye summoned several close members of his family to his home and executed the following document, first dictating to a nephew, who in turn dictated it to another nephew who typed it (on yellow paper). The document was then read to Judge Nye, and he stated it was correct. The next day it was handed to Mr. Cate, an insurance agent, who sent it to the company. The testimony is conflicting as to whether Mr. Cate was asked whetherthe judge should sign the requested change of beneficiary.
The document, which we call a request read:
"$5,000 shall be payable immediately upon my death to my brother, Bertrand W. Nye, and his wife, May L. Nye, jointly. The remaining $5,000 shall be payable to my adopted daughter, Caroline D. Nye Sams, in the same manner as provided in the photostatic copy dated September 3rd, 1940, and attached to the above policy."
One of the questions presented is this, Did this request for change of beneficiary consummate a change under the provision of the policy which read:
"If the Insured has retained such right the Beneficiary may be changed at any time and from time to time while this Policy * * * is in force and not assigned, upon return of the policy to the Company * * * with the Insured's written request for the appropriate indorsement of the Policy by the Company."
The policy was in fact sent to the company with the request for change, and an agent gave the insured a receipt for it.
At the same time he executed this change of beneficiary Judge Nye changed his will.
A serious question in the case arises out of the exclusion of Exhibit 8, which is a form for request for change of Beneficiary, dated January 2, 1943, and signed by the name of "Olin T. Nye" and witnessed by "Bert C. Cate." This document was otherwise not filled in, but the first paragraph reads:
"The Mutual Benefit Life Insurance Company is hereby requested to change the Beneficiary under Policy No. 1,320,976, by making the Policy payable as set forth in attached memorandum, unless it shall mature as an endowment * * *."
This Exhibit 8 was stapled to the same request for change of beneficiary which had been typed (on yellow paper) at Judge Nye's direction, and was produced by the insurance company from its files.
In the examination of Judge Nye's nephew, the following colloquy occurred when the Exhibit was excluded on the ground that the signature of ...