Opinion
Benjamin Fertik, Philadelphia, Pa., for plaintiff. Gerald A. Gleeson, Philadelphia, Pa., for the United States.
Robert Boyd, Jr., Philadelphia, Pa., for Emma Horn.
KIRKPATRICK, Chief Judge.
The facts are as follows: Ralph A. Horn, then unmarried, entered the military service of the United States on January 22, 1942. He applied for and was granted a contract of National Service Life Insurance in the amount of $10,000, effective February 1, 1943, in which his mother, Emma Horn, was designated as principal beneficiary.
On September 11, 1943, he married the plaintiff, Mary Horn.
On September 28, 1943, while stationed at Camp Gordon, Johnston, Florida, he executed United States Army Form 'W.D., A.G.O. 41, March 1, 1941'. This form was captioned 'Designation of Beneficiary' and was intended as a form on which a soldier could designate the relative to be paid the six months' gratuity in case of death. It was not intended by the Army to be used as a form for designating the beneficiary of government life insurance but there is nothing on the form which refers to the six months' gratuity or which indicates that it is not intended for government life insurance. In this form he designated his wife, Mrs. Mary C. Horn, as the person 'eligible to be my beneficiary.'
On the same day he wrote a letter to his wife in affectionate terms in which he said, 'I made your allotment out, today, you should get your first check November the first. I also made you the Beneficiary on my insurance policy which is ten thousand dollars. That will come in mighty handy in case I get the works in this war.'
About this time Form W.D., A.G.0. 41, March 1, 1941, was amended by the Army so as to be headed 'Designation or Change of Relative to be Paid Six Months' Gratuity in Case of Death', and underneath this 'Important: This form does not pertain to insurance. (See Army Regulation 600-600.' Otherwise the form was substantially unchanged. It cannot be questioned that this change was made because the general and somewhat ambiguous title of the old form had created confusion and misunderstanding as to its purpose. This is not a proved fact in the present case and is not strictly necessary to the result but it has been recognized many times by courts in similar cases.
A child was born to Mr. and Mrs. Horn on April 4, 1944. On May 9 1944, just before he went overseas, Horn executed the new form in which he designated as persons eligible to receive 'this pay', his wife and child.
Horn was killed in action July 7, 1944, while his contract of insurance was in effect.
I find as a fact that on September 28, 1943, when Horn executed the 'Designation of Beneficiary' Form W.D., A.G.O. 41, he intended by so doing to change the beneficiary of his government life insurance from his mother to his wife and that he believed he had done so.
On the basis of the foregoing facts, I conclude as a matter of law that the plaintiff, Mary C. Horn, is entitled to the proceeds of the government life insurance in question.
Judgment may be entered accordingly.