The opinion of the court was delivered by: BYERS
The object of this action is to resolve the conflicting claims of Francesca Gandolfo Senato, the mother of Nick Senato, a deceased soldier, and Nettie Senato, his widow, to the proceeds of $ 10,000.00 of National Service Life Insurance. Nick was killed in action in the Pacific theater on April 29, 1945, and the question for decision is the perplexing one of whether he had effected a change of beneficiary from his mother to his wife. There are no contested issues of fact, but argument pro and con is addressed to the inferences to be drawn from the testimony which is free from contradiction.
Two policies are involved for $ 5,000.00 each, represented by certificates N-1914979 and N-13469563, dated May 1, 1942, and September 1, 1943, respectively; in each the plaintiff Francesca was the beneficiary named.
She was advised of her son's death about July 17, 1945, by the Veterans Administration, and duly filled out forms electing to receive monthly payments for life; in due course the payments were made for some four months, and were then stopped by reason of the claim asserted on behalf of Nettie Senato that she was the true beneficiary.
The Government instituted this cause in order to resolve the controversy thus presented. Possession of the certificates was that of the mother, one being sent to her by mail, and the other delivered to her by Nick.
The precise duration of his military service is not disclosed, but the date of the first certificate indicates that he served for better than three years. The testimony is meager concerning his make-up and characteristics, which is to be regretted, because the effort to ascertain his true intent in the matter in litigation would be measurably aided by a larger understanding of the kind of a man he was and how he would be expected to perform a task that he had undertaken to accomplish.
He was married in Manhattan on February 10, 1944, in the Municipal Building, while on leave from camp; he arrived on the 8th and called at the home of Nettie, and successfully urged that the marriage take place as soon as possible. The blood tests were taken on the 9th and the wedding followed on the 10th as stated, and the following day Nick returned to Camp Pickett, Virginia, and his bride accompanied him to the railroad station here to see him off.
On March 2nd he wrote a letter to her of which the following is a copy:
'Thursday March 2nd, 1944:
'Wrote you a letter last night but it wasn't so very long and I did promise to write again today. Things here are about the same don't know what the next move is going to be or when. Forgot to mention in yesterdays letter about transfering (sic) the insurance policy over to you. Well I got that straightened out here. There has been no change in the weather but at the present time its pretty cold with the wind blowing a mile a minute. You know dear I didnt realize how tired you were till you wrote and told me that you took a cab from Prospect Avenue. I think the next time I get a pass Im taking you home instead of you seeing me off. Well honey Im keeping my fingers crossed on going any place for a few months anyway. If its any place I wish it was home -- our home. Say do you think it's time to go out and look around for household equipment. I dont know I just got a hunch that this year will be the last year for me in the Army and for all of us concerned. Maybe Im a little bit hasty, eh dear. Seriously though dearwhat would you get if I did come home now for good. Do you still prefer twin beds? Or would it be better to get an anti snoring device. Ill leave it up to you. Honey I miss you something awful and cannot wait to be with you for better or for worse. Just like that guy said to us down in City Hall. Incidentally honey today is our third anniversay. Its been three weeks today that weve been married. Dreamt about you all night and when I got up this morning I felt pretty tired. After I finish this letter Im going to write home. Let me know when you receive the money order and also if you get word about the dependency allotment. Ill write again tomorrow and so until I hear from you take good care of yourself and dont take any abuse from Dora. Best regards to Toots. Lots of love to you my darling wife.
The words emphasized constituting the third and fourth sentences are relied upon by the widow to indicate the purpose and intent of her husband in signing W.D., A.G.O. Form No. 41 (part of U.S. Ex. A) on February 18, 1944. That document is entitled: 'Designation or Change in Address of Beneficiary'.
There is no dispute touching the customary office of this paper which forms a part of Nick's Service Record, which is to designate the person named by the soldier as the one to receive his six months' pay award payable on his death from wounds or disease. 10 U.S.C.A. § 903.
That sum automatically goes to the widow if there be one; otherwise to a child or children; or if none, to a dependent relative.
The necessity for filling out that form in this case arose from Nick's marriage on February 10, 1944, because prior to that time it is to be assumed that his unmarried status was a matter of record, and thus the dependency of his mother would entitle her to receive the six months' pay if the occasion should arise.
Standing by itself, therefore, the document of February 18, 1944, would have no necessary bearing upon the question of a possible change in beneficiary named in the policies. However, it might be efficacious to accomplish that purpose if it appears that such was the clear intention of the insured: Shapiro v. ...