Appeal from the District Court of the United States for the Eastern District of Wisconsin.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
Alvin L. Hintz, the insured, a resident of Wisconsin, took out a life insurance policy with the Central Life Assurance Society for the sum of five thousand dollars. The beneficiary named therein was his brother, William Howard Hintz. The insured was then unmarried. Later he changed the beneficiary from his brother to his wife, Ruth E. Hintz, the appellee. Subsequently, he changed or attempted to change the beneficiary from his wife (appellee) to his sister, the appellant.
The policy contained the following provisions respecting the insured's right to change his beneficiary:
"Central Life Assurance Society * * * Agrees to pay * * * to Alvin L. Hintz * * * if the Insured be then alive, or upon receipt of due proof of the prior death of the Insured to William Howard Hintz beneficiary with right of revocation of Beneficiary reserved to the Insured."
Paragraph 10 of the policy reads:
"When the right of revocation has been reserved, or in case of the death of any Beneficiary, under either a revocable or irrevocable designation, the Insured, subject to any existing assignment of the Policy, (a) may designate (1) one or more new Beneficiaries with or without reserving the right of revocation; (b) may designate (1) one or more Conditional Beneficiaries; and (c) may change any Beneficiary not irrevocably designated. Unless the Insured shall direct otherwise, (1) the interest of a deceased Beneficiary, where more than (1) one has been named, shall pass to the survivor or survivors; (2) the Conditional Beneficiary or Beneficiaries shall succeed upon satisfactory proof of the death of the last surviving Beneficiary to all the interest of which such Beneficiary died possessed; (3) the interest such Beneficiary or Beneficiaries, if living, would have had, shall be payable to the estate of the Insured, if no Beneficiary or Conditional Beneficiary shall survive the Insured. No designation, change or revocation of the Beneficiary or Beneficiaries shall be effective except and until a written notice thereof is filed at the Home Office of the Society, accompanied by the Policy for suitable endorsement prior to or at the time this Policy shall become payable."
The language of the agreement before us leaves little room for doubt as to the intention of the contracting parties. The insurance company drew the contract, and the insured is therefore entitled to a construction of any ambiguous provisions favorable to himself. Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 54 S. Ct. 590, 78 L. Ed. 1137. That he reserved the right to change the beneficiary cannot be doubted. This is not denied by appellee. In fact her right to recover is predicated upon insured's power to make one change in beneficiaries. She contends, however, that insured's right to change the beneficiary is limited to one change. In other words, it is appellee's contention that the langugae of the policy authorized the insured to make the first change of beneficiary, but no authority existed for a second change in view of insured's failure to make such reservation when his first change in beneficiary was made.
She also argues that the Wisconsin statute (section 246.09) further limits a husband's right to change the beneficiary when the beneficiary is a married woman, and that such statutes govern this case.
The two questions determinative of this appeal may, therefore, be stated thus:
(1) May the insured holding a policy containing the above-quoted provisions change the beneficiary or beneficiaries named therein more than once without at the time each change is made specifically reserving the right to again change the beneficiary?
(2) Under the Wisconsin statute is the insured's right to change beneficiaries limited, restricted, or prohibited because the beneficiary ...