Before CASTLE, KILEY, and SWYGERT, Circuit Judges.
CASTLE, C. J.: The plaintiff, Continental Assurance Company by its bill of interpleader filed in the District Court alleged that it had issued a contract of life insurance insuring the life of Joseph Platke and requested determination of conflicting claims for the proceeds of the policy presented to plaintiff subsequent to the insured's death. Rose Platke, defendant-appellant, the insured's widow who was his second wife, claims the proceeds under the original designation of beneficiaries contained in the policy. Defendants-appellees, Eleanor Koslow, insured's daughter, and Ronald Platke, his son, claim equal shares in the proceeds with the widow under an alleged change of the beneficiary provisions in their behalf. The case was heard on a motion for summary judgment, upon an agreed statement of facts, and the District Court entered judgment against defendant-appellant and in favor of defendants-appellees, Eleanor Koslow and Ronald Platke. Rose Platke appealed.
Appellant states the contested issue as follows:
Did the insured by his action or non-actions do all within his power so as to effectuate the change of beneficiary designation of the policy in question, even though the change of beneficiary was not endorsed on the contract of insurance as required by said contract, pursuant to its terms and provisions?
Pertinent facts may be summarized as follows: On May 7, 1956 plaintiff issued its policy on the life of the insured in the face amount of $10,000.00. The beneficial designation therein was:
"Rose Platke, Wife, if living; otherwise to Ronald Platke, Son and Marshall Stein, Step-son, equally or to the survivor."
The right to change the beneficiary was expressly reserved to the insured. About a year before his death on November 6, 1959 the insured, suffering from cancer, returned to live in St. Louis, Missouri, where his daughter, Eleanor Koslow, resided. His wife, Rose Platke, continued to live in Chicago, Illinois. The insurance policy was in her possession. On July 15, 1959 the insured executed a "Change of Beneficiary" form provided by plaintiff together with an affidavit stating:
"I further evidence my desire herewith that said change of beneficiary be effected by said Company without indorsement on the policy, which I do not have in my possession here in St. Louis, Missouri at the present time, it being my sincere desire to effectuate this change of beneficiary at the earliest possible time hereafter."
The change of beneficiary form executed by insured provided for the following beneficiary designation:
"Rose Platke, Wife Eleanor Koslow, daughter Ronald Platke, son equally or to the survivors or survivor."
and on its face expressly stated:
"The undersigned requests that change in beneficiary be effected without indorsement on the policy."
"If the right to change the beneficiary has been reserved . . . the Owner may change the beneficiary, with or without reserving the right of further change, by written request to the company, accompanied by this policy for suitable endorsement. No such change of beneficiary shall take effect until endorsed hereon by the Company. After such endorsement, the change will relate back to and take effect as of the time ...