The opinion of the court was delivered by: BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This is an interpleader action pursuant to 28 U.S.C. § 1335 commenced by the filing of an interpleader complaint on February 10, 1977.
This action arises out of a controversy between the interpleader defendants concerning their respective entitlement to the proceeds of a certain insurance policy # 251-67-33 issued by plaintiff Companion Life Insurance Company on or about November 14, 1972 on the life of one Michael Schaffer in the face amount of One Hundred Thousand Dollars ($100,000.00).
For purposes of adjudicating the matters presently before me, I find the following facts:
1. The application for insurance by Michael Schaffer was dated October 12, 1972, and designated as beneficiaries the defendants Elise I. Schaffer, his wife, and Ted Schaffer, his uncle.
2. At the time of the issuance of the life insurance policy, Ted Schaffer was an employee of the plaintiff,
and an employee of C.H. Juergens Agency, Inc., a general agent of the plaintiff. In November 1972 Ted Schaffer went to Chicago to attend the wedding reception of Elise Schaffer and Michael Schaffer. While in Chicago, Ted Schaffer sold the policy in suit to Michael Schaffer.
3. After its initial preparation, and before submission to plaintiff, the application with respect to Michael Schaffer's policy of insurance was altered. The alteration consisted of a deletion of the provision designating Elise Schaffer as the primary beneficiary and a substituted direction that Elise Schaffer and Ted Schaffer were to "share alike" as beneficiaries. Thus directly above the name Elise I. Schaffer in the application for life insurance the word "PRIMARY" has been crossed out, and directly below the names of the defendants appear the words "ABOVE TO SHARE ALIKE", as follows:
"12. Full names and relationship of beneficiaries. (Given, middle and surname.)
TED SCHAFFER UNCLE 37-09 75 ST., JACKSON HTS., N.Y. 11372, 37-09 75 ST., JACKSON HTS., N.Y. 11372, ABOVE TO SHARE ALIKE"
4. Michael Schaffer, the insured, died on October 25, 1976. Thereafter, proof of death statements and claims under the policy were received by plaintiff from the defendants or their representatives.
5. First defendant Ted Schaffer made claim for $50,000.00 in benefits allegedly due him under the policy. Upon presentation of this claim by Ted Schaffer, plaintiff remitted $50,312.32 to him (one half of the face value ...