(dissenting).
Baekgaard v. Carreiro, 9 Cir., 1956, 237 F.2d 459, is distinguishable, I think, from this case on at least two grounds: (1) there, under the law of California, the wife had a community property interest in the policies of insurance, while here, as is conceded, her interest prior to the insured’s death was a mere expectancy; (2) there the insurance policies were specifically mentioned in the property settlement, while here the district court correctly found:
“This stipulation, although providing for the payment of $20,000.00 to the defendant, and appearing to be generally dispositive of the property rights of the parties, made no mention of the policies of insurance involved in this action.”
On the other hand, 7 Words and Phrases, p. 479 collects seven cases fronv five different states, with none contra, all holding that the word “claim” means a legal claim, a demand of right or of supposed right. Likewise, in the early case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, 615, 41 U.S. 539, 615, 10 L.Ed. 1060 it was said: “What is a claim? It is, in a just judicial sense, a demand of some matter, as of right, made by one person upon another, to do or to forebear to do some act or thing as a matter of duty.” It seems to me that the appellee has the better of the argument as to the meaning of the word “claim.”
Leaving the word argument, and seeking the intention of the parties to the' stipulation, there is even less doubt. The stipulation was, as the district court found, simply a property settlement. The wife’s mere expectancy was not a property right. The husband had reserved the right to change the beneficiary in each of the three insurance policies. At no time did the husband need the wife’s consent to such change, and there-was no necessity to mention the policies, in the stipulation.
Even when the wife has upon divorce-expressly released her community property interest in such a policy, the failure of the husband to change the beneficiary over a long period of time has been held to amount to a confirmation of the designation of the divorced wife as the beneficiary in the policy. Grimm v. Grimm, 26 Cal.2d 173, 157 P.2d 841 (parties divorced in January 1941, husband died in April 1943); Parrish v. Kaska, 10 Cir., 1953, 204 F.2d 451 (interlocutory decree approving agreement December 14, 1945, final decree February 25, 1947, husband died May 18, 1947); see, also, Andrews, v. Andrews, 8 Cir., 1938, 97 F.2d 485. In the present case the husband had the same right to change the beneficiary both before and after the divorce. The divorce was granted on December 1, 1955. The husband died nearly three months later, on February 25, 1956, without having changed the beneficiary. Under any construction of the stipulation, is there not a genuine issue of fact as to whether the husband intended to confirm the designation of the beneficiary ?
It seems clear to me, however, that the policies of insurance were in no way the subject of, or affected by, the stipulation. If the parties intended the stipulation to include the three policies, why were they not mentioned? Judge Bazelon’s cogent argument in Mayberry v. Kathan, 1955, 98 U.S.App.D.C. 54, 232 F.2d 54, 55, 56, disposing of a similar case, is fully applicable, I think, to the present situation :
*281“Since appellee Kathan was the designated beneficiary at the time of Richards’ death, her right to take is protected unless there is convincing evidence that the property settlement was intended to divest her interest. Cf. Thomson v. Thomson, 8 Cir., 1946, 156 F.2d 581, 586, cer-tiorari denied 1946, 329 U.S. 793, 67 S.Ct. 370, 91 L.Ed. 679; Andrews v. Andrews, 8 Cir., 1938, 97 F.2d 485. That settlement, while comprehensive in scope, makes no specific reference to the death benefits, and there is no other evidence reflecting the intent of the parties. Absent such evidence, we have no alternative but to apply the settled principle, derived from insurance and estate law, that ‘ “general expressions or clauses in such agreements are not to be construed as including an assignment or renunciation of expectancies and that a beneficiary therefore retains his status under an insurance policy or under a will if it does not clearly appear from the agreement that in addition to the segregation of the property of the spouses it was intended to deprive either spouse of the right to take property under a will or an insurance contract of the other.” ’ Thorp v. Randazzo, 1953, 41 Cal.2d 770, 774, 264 P.2d 38, 40, quoting Grimm v. Grimm, 1945, 26 Cal.2d 173, 176, 157 P.2d 841, 843.”
The County Judge of Dade County ordered the administratrix to deliver the three policies to the named beneficiary. The Equitable Life Insurance Company and the Metropolitan Life Insurance Company have paid to her the proceeds of two of the policies. The Director of the Claims Service of the Veterans Administration determined that the designated beneficiary was entitled to payment of the National Service Life Insurance policy, though, after this suit was filed, the Government disclaimed the proceeds of that policy and offered to interplead and deposit the funds in Court. The district court decided in favor of the named beneficiary. Of all who have had occasion to pass upon the issue, my two brothers are the first to decide against the named beneficiary. With deference, I think that they err and respectfully dissent.
Rehearing denied; RIVES, Circuit Judge, dissenting.