dissenting. The majority opinion affirms the trial court as to all errors enumerated and holds that the evidence demands a verdict for the appellee. I dissent.
In this case, the majority opinion of the Court of Appeals holds that a cross mark on a piece of paper is the signature of Thomas Motley, although the name of Thomas Motley does not appear anywhere on that piece of paper. Thus, in effect, the majority of the Court of Appeals here overrules the Supreme Court of Georgia, overlooking the rule that it is usually the other way around. The Supreme Court of Georgia, in Horton v. Murden, 117 Ga. 72, 74 (43 SE 786) holds: "If the grantor’s name clearly appears in the body of the instrument . . . and [she] affixed her mark at any place thereon with the purpose of giving it such force and effect, the law will not defeat her intent and declare the instrument inoperative merely because the mark and name are not in juxtaposition.” (Emphasis supplied.) Daisy Thurmond, appellant, and Mae Belle Spoon, appellee, are contesting as to which one is entitled to collect the proceeds of an insurance policy on the life of Thomas Motley, deceased. The policy named Daisy Thurmond as beneficiary, but Mae Belle Spoon contends he changed the beneficiary and named her as the one to receive the proceeds of the policy. The jury was instructed to return a verdict in favor of Mae *817Belle Spoon and the judgment followed the verdict. Daisy Thurmond appeals to this court from this final judgment.
I am in sharp disagreement with the majority opinion in holding that the evidence demanded a verdict sustaining Mae Belle Spoon’s contention that there was a change of beneficiary. Actually, the evidence demands a verdict in favor of Daisy Thurmond.
The law is quite clear and specific as to the way and manner in which a beneficiary may be changed in an insurance policy. In Chance v. Simpkins, 146 Ga. 519 (2) (91 SE 773) we find the following: "The naming of a beneficiary in an insurance policy is an integral part of the contract, and cannot be changed without a compliance with the stipulations in the policy.” To the same effect see Merchants Bank v. Garrard, 158 Ga. 867 (3) (124 SE 715, 38 ALR 102).
Therefore, we must look to the policy of insurance in the case sub judice as to the manner pointed out in the policy for change of beneficiary. The policy provides as follows: "The employee may at any time, without the consent of his beneficiary, change his beneficiary by filing written notice through the policyholder on a form satisfactory to Prudential. The new designation will take effect on the date the notice was signed, except that such change shall not take effect as to any amount of payment made by Prudential before receipt of the notice of the change.”
Thus, Prudential required a notice in writing as to the change, "on a form satisfactory to Prudential.”
What does the evidence show in this respect?
An agent of the insurer, Mr. Hartupee, testified that he took the form to Thomas Motley shortly before Motley’s death, but he also testified that he did not know Thomas Motley but was introduced to him by Mae Belle Spoon (Tr. p. 37). Of his own knowledge he did not know whether he dealt with Motley or not.
There is a significant failure of evidence on appellee’s part. As to change of beneficiary, Hartupee testified that he had the insurance company’s form, but it lacks a great deal of being filled out. The group policy number is not set *818forth; the certificate number is not set forth; and said writing is not signed by Thomas Motley. R. L. Hartupee signed as an attesting witness on June 16, 1969, but what did he attest? He attested a cross mark (x) and above the cross mark is the word "his” and under the cross mark is the word "mark.” Whose mark? At no place in the purported application or notice does the name of Thomas Motley appear. Thus, Motley simply failed to apply in writing for a change of beneficiary and the policy at the death of Thomas Motley was still payable to Daisy Thurmond. We here attach Exhibit P-1, purporting to be the written notice of change of beneficiary.
REQUEST FOR CHANGE
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
a mutual life insurance company
The Prudential Insurance Company of America is hereby requested to make the following changes in connection with my insurance under:
Group Policy No(s). _ Cert. No(s)._
CHANGE BENEFICIARY TO
Name of Proposed Beneficiary TMa*-' _
(Full Name — Example: Mary A. Doe, not Mrs. John J. Doe) Residence
of Beneficiary ¿V/ ^
Street Town State
Relationship to Insured h>_
If more than one beneficiary is designated, settlement will be made in equal shares to such of the designated beneficiaries (or beneficiary) as survive the Insured, unless otherwise provided herein.
If no designated beneficiary survives the Insured, settlement will be made to the estate of the Insured, unless otherwise provided in the Group Policy.
*819Change Name of Insured from
END. 6-19-69 RHW to
Change Name Relationship of present Beneficiary from to £
Dated , 19_éÍ _X_
Personal Signature of Insured
Witness Ctsúp (yf
Name of Concern Where Employed
ALL SIGNATURES TO BE IN INK
Printed in U.S.A. by Prudential Press
When an illiterate person signs an instrument by making his mark, usually his name is written over or under or immediately before or immediately after the mark. But this is not absolutely essential provided the name of the person who signs by mark elsewhere appears in the instrument.
In Horton v. Murden, 117 Ga. 72, 74, supra, it is held: "If the grantor’s name clearly appears in the body of the instrument, if she adopted it as her act and deed, and affixed her mark at any place thereon with the purpose of giving it such force and effect, the law will not defeat her intent and declare the instrument inoperative merely because the mark and name are not in juxtaposition.”
But there is no authority that we have been able to locate which holds that a simple cross mark upon a paper, without the name of the person whose signature it represents appearing anywhere in the writing, will suffice as a signature.
Other deficiencies in the notice were that other important blanks were not filled out in the form provided by the Prudential Insurance Company of America. For instance, same *820provided "change name insured from______to _____These blanks were not filled in. The notice further provided, "change name of present beneficiary from ____to ________.” This blank is not filled out except an X or cross mark follows the word "from,” and the witness testified that this mark was not made by him.
Nor does the testimony of the administrator of the records for the City of Atlanta for the benefit of the insurance company that, "a valid change of beneficiary has been made” make this instrument into a valid change of beneficiary. This witness testified that this paper came to her through channels of the City and her testimony shows she has no knowledge that it was to be placed in the deceased employee’s record. While she testified that the City of Atlanta, through her office, was authorized by the insurance company to handle administration of these papers in regards to the insurance, nevertheless, this instrument does not show a valid change of beneficiary. Accordingly, since Daisy Thurmond was admittedly the beneficiary before the alleged change, it is my opinion that the evidence submitted demands a finding in favor of Daisy Thurmond, the appellant, since no valid change of beneficiary has been shown.
We repeat that the evidence demanded a finding in favor of Daisy Thurmond, the appellant.
Judge Eberhardt’s concurring opinion cites the following authorities, to wit: Natty v. Natty, 74 Ga. 669 (58 AR 458); Smith v. Locomotive Engineers Mut. Life &c. Ins. Assn., 138 Ga. 717 (76 SE 44); Barrett v. Barrett, 173 Ga. 375, 386 (160 SE 399); West v. Pollard, 202 Ga. 549 (43 SE2d 509); Faircloth v. Coleman, 211 Ga. 356 (86 SE2d 107). None of these authorities deals with the question of whether or not a cross mark on a piece of paper will serve as a signature where the name of the person whose signature is thus purported to be affixed appears nowhere on the paper. That is the principal question involved in this case.