The opinion
WARD, Circuit Judge
(dissenting). The question in this case is whether the beneficiary of the policy can be changed without the Insurance Company's consent. This is a question of law which wc can dispose of upon petition to revise. Of the cases cited by the court, Grems v. Traver, 87 Misc. Rep. 644 , 148 N. Y. Supp. 200 , involved a policy under which the insured had the right to change the beneficiary at any time, and in John Hancock insurance Co. v. White, 20 R. I, 457, 40 Atl. 5 , the court held that the company was estopped from.refusing to consent to the change.
1 (SJi.iot sec how any court can delete this provision of a contraer or say that it will be disregarded because “arbitrary.” If the bankrupt were’to ask the Insurance Company to consent to substitute his trustee in bankruptcy in place of his wife as beneficiary, it would be the plain duty of the company to refuse, and the refusal for the protection of the wife could not he regarded as arbitrary. On the contrary, consent would defeat the purpose of the policy, which was to protect the wife. Yet the order of the court below accomplishes this very thing.
The case of Cohen v. Samuels, 245 U. S. 53 , 38 Sup. Ct. 36, 62 L. Ed. 143 , does not control. The ratio decedendi proceeded upon facts not found in this case at all. In it the insured had an absolute right to change the beneficiary and this right the court held under section 70 (a) sulxl. (3) of the Bankruptcy Act (Comp. St. § 9654) was vested in the trustee as one of the “powers which he [the bankrupt] might have exercised for his own benefit. * * * ” And also under subdivision (5) as “property which prior to the filing of the petition he could have transferred. * * * ” The bankrupt in this case could have done neither of these things and his trustee stands in no better position.
I think the order should be reversed.