LAYNE v. UNITED STATES et al., 3 F.2d 431

PAGE, Circuit Judge. Appellant, called plaintiff, as the widow of Prank Chance Layne, sued the United. States of America, Margaret Ella Birpey, and Charles Wilson Layne, appellees, on the equity side of the District Court to recover $10,000 war risk insurance. The prayer of the bill is: (

a) That the records of the Veterans’ Bureau, concerning the war risk insurance of Prank Chance Layne, be made to conform to the true facts and show plaintiff to be the sole beneficiary; (

b) that the contract and intention of Prank Chance Layne to make her the sole beneficiary be specifically performed; (

c) that she have judgment against the individual' defendants for whatever they have received on account of the insurance, and that the United States be enjoined from paying said insurance to any person other than plaintiff. Three principal contentions are:

(1) That there was an antenuptial agreement that, in consideration of plaintiff’s agreement to marry, Prank Chance Layne would, after marriage, make plaintiff his sole beneficiary in his two policies; (2) that, after marriage, Prank Chance Layne had actually, by written direction, made plaintiff beneficiary under the two policies; (3) that Regulation 14 of the Bureau of War Risk Insurance, specifying the method necessary to effect a change in the beneficiary, is unconstitutional and void. • 1. We have read carefully the whole unabstracted reeord in this ease.

Upon the question of the change in beneficiary from Layne’s brother and sister, the individual defendants, to plaintiff, the whole of the evidence, taken most favorably .to plaintiff, amounts to no more than that Prank Chance Layne said that a paper, then present and to which his name was signed,.was made for the purpose of transferring his war risk insurance to his wife; that he took the paper and said he was going to mail it. Nobody read the contents of the paper, nobody saw it mailed, and Layne did not tell anybody that he had mailed it. That/ was a year or more after the marriage.

If mailed, the paper did not reach the Department, and its contents were not further proven. So far as the ree-ord shows, it never passed out of the possession of Layne. 2. On the question of the antenuptial agreement, the reeord shows that, in the course of correspondence in 1917, something was said by Layne about getting more insurance and making part of it payable to plaintiff after their marriage, but, so far as the letters in evidence indicate, the parties were then engaged, and, if so, the promise of marriage could not have been in consideration of such offers or promises.

In February, 1919, plaintiff broke off the engagement, and she did not see Layne again until April 16, 1919, the day before their marriage. She " said that, as a result of an argument, Layne made her two promises, one of which was “he said he would make me a beneficiary of his entire war risk insurance.” When asked what else he said touching the insurance, the answer was, “Well, it concerned what Mrs. Bimey had. said.” There was no stronger evidence of a prenuptial agreement.

Before there can be a decree for specific performance, proof of the existence of the agreement and of its terms must be clear and convincing. Dalzell v. Deuber Mfg. Co., 149 U. S. 315, 326, 13 S. Ct. 886, 37 L. Ed. 749; Hennessey v. Woolworth, 128 U. S. 438, 442, 9 S. Ct. 109, 32 L. Ed. 500.

The master and the court below would have been justified in finding that the strongest evidence, favorable to plaintiff upon the question of the alleged execution of the change of beneficiary and also upon the question of the antenuptial agreement, was open to a very grave suspicion; but, taken in the light most favorable to plaintiff, there is not sufficient evidence to sustain either contention. This being true, it is wholly immaterial in this ease whether Regulation 14 is valid or not. The decree of the District Court is affirmed.