(dissenting).
The insurance contract gave the insured complete power at any time to change the beneficiary in writing without the cooperation of the insurer. The original beneficiary had no vested right, but was only an appointee to receive the insured’s bounty if in life at his death and if no other person were subsequently named. The suggestion in the policy that a change “be recorded” by the Company — it is not a requirement — was for the benefit of the insurer and was waived by not asserting it and by paying the money into court. Arrington v. Grand Lodge, 5 Cir., 21 F.2d 914; Sbisa v. Lazar, 5 Cir., 78 F.2d 77. Equity will treat the change as accomplished when insured has done all he could. Hall v. Allen, 75 Miss. 175, 22 So. 4, 65 Am.St.Rep. 601.
The insured’s changing his beneficiary was perhaps a “secular act”, but he violated no law in doing it on Sunday. No one of the Mississippi cases cited declares that a secular act done on Sunday is contrary to public policy. Each of them decides that a particular act or contract violated one or the other of two criminal statutes, and was for that reason illegal and void. One statute, Mississippi Code, Sec. 1132, prohibits keeping open any store on Sunday, and can have no application here. The other, Sec. 1131, punishes anyone who on Sunday “labor[s] at his own or any other trade, calling, or business * * * except it be * * * other work of necessity or charity * * Necessity includes emergency. White’s Lumber & Supply Co. v. Collins, Miss., 191 So. 105. It is impossible to conclude this man’s desire to give his insurance to his brother and his act of making a writing to express it, is laboring in his own or another’s trade or calling. The Mississippi court has never so held. It most resembles the making of a will or a gift, and neither of these things has ever been held a violation of the Sabbath laws in Mississippi. This man’s act, if within the letter of the law, could still be a case of emergency, which is necessity, if it was known he was about to die. and *569could not wait till Monday. It might, if his brother were needy, be also a charity. Only by proving that the insured was paying a debt or entering into some business contract with his brother, could this transaction have been a crime. Such a thing is not alleged or suggested. The judge should have had the issue tried that was pleaded, towit, that the insured was not mentally competent. The Rules of Procedure touching summary judgments as well as the law of Mississippi were misapplied, I think, and there should be a reversal.