(dissenting).
Arthur B. Ervin was a corporal in the Marines, having enlisted in 1940. He was at Pearl Harbor when the Jananese attacked on December 7, 1941. He had a certificate of National Service Life Insurance for $10,000 payable to his mother Mrs. Willie B. Meek, now Mrs. McGuyer. While on a furlough in the United States on July 17, 1943, he married Odena Gladys Good. On August 24, 1943, on a formal request his wife was made beneficiary of the insurance. After a treatment in a hospital he went again overseas in January, 1944. Under date of April 29, 1944, in reply to a letter from his older brother who, though in the Naval Service, was in the United States, he wrote and signed a letter which was received, the material part of which is as follows :
“I am sorry that I have not written to you long before this. Received your letter last nite (somewhat delayed) so will ans. right back * * * I am back to duty with my old Company. Certainly was glad to get back with the guys again. My side is O. K. now and I can do almost everything I did before * * *. I got a letter from Mom every 4 or 5 days. Speaking of Mother Bud I did change my insurance if anyone gets it Mom will get it all. I didn’t change it because of what you said in your letter. I had already a couple of reasons of my own, one I dont want ‘Neg’ ever to feel obligated to me, but I know that neither you or Kay would and never did lie to me. So I want to ask you something, but before I ask you I want to tell you how I feel about ‘Neg.’ Bud she is the only one for me but things are all the way O. K. not at all, know what I mean? Write and tell me if things are not that way * *
The letter tells of the writer being awarded the Navy Cross by Admiral Nimitz the week before, and that he was sending it home to Mother and would send Kay a hula skirt if he could find a good one. “Neg” is identified as Ervin’s wife, and Kay as his brother’s sweetheart. The letter does not show where it was written. It makes no mention of present fighting or loss of mail or confusion of any kind. The Navy Cross was received by the mother and the letter was received by the brother. Ervin was killed in action in the attack on Saipan on July 5, 1944, over nine weeks later. No change of beneficiary communication was received by the Veterans Administration after the change to the wife in August, 1943. On November 3, 1944, the mother filed claim to the insurance. On Nov. 4 the wife filed her claim. The Veterans Administration decided on July 21, 1945, that the wife was the beneficiary. The mother, Mrs. Meek, filed suit against the United States and the wife to recover the- insurance. The United States by answer set up the facts touching the insurance as known to the Veterans Administration and the decision that the wife was the beneficiary, and that the mother was also claiming, and that by reason of the conflicting claims the money could not be safely paid to either, and prayed a determination by the Court. The wife set up the same facts and claimed the insurance.
On the trial the facts as above stated appeared in the main by stipulation. The mother was a witness, but testified nothing as to the wife, or the son’s attitude to her. The brother testified, but only to identify the letter and the persons referred to in it. He had never seen his brother’s wife but once. He turned the letter over to his mother after his brother’s death became known. The only other witness was another Marine who served in the South Pacific, but not in the same company or division as Ervin, and did not fight on the same islands. Identifying no time or place, he testified that his mail was irregular, and that mail was sometimes lost and ships sometimes sunk which carried mail, and that in changing insurance beneficiaries the custom was to go to the company clerk and make out papers and the clerk would send them to the Veterans Administration. The wife objected to the admission of all this testimony as irrelevant, and especially to the letter as not sufficient to change the beneficiary or to show that a change had been made, and also moved for a directed verdict. She offered *861no testimony beyond the stipulation of facts. The jury found for the mother. From the resulting judgment this appeal was taken.
1. The decision of the Veterans Bureau that the wife continued to be the beneficiary is not final in court. 38 U.S.C.A. § 808. But it does show that there has been no waiver on the part of the insurer of anything necessary to effect a change of beneficiary.
2. The Act which defines and controls the insurance provides as to change of beneficiary: “The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided, and shall, subject to regulations, at all times have the right to change the beneficiary or beneficiaries of such insurance without the consent of such beneficiary or beneficiaries but only within the classes herein provided.” 38 U.S.C.A. § 802(g). How the change of beneficiary shall be made is left to regulation. As the regulation stood in 1943 and 1944, pertinent provisions are: Sect. 10.3446. “ * * * An original beneficiary designation may be made by last will and testament duly probated, but no change of beneficiary may be made by last will and testament.” Sect. 10.3447. “ * * * A change of beneficiary to be effective must be made by notice in writing signed by the insured and forwarded to the Veterans Administration by the insured or his agent and must contain sufficient information to identify the insured * * *.” 7 F.R., page 8364. No one contends the regulation is not valid. Made by the authority of the statute, it has the force of law. The provision is simple and plain. Judges and juries would like to effectuate the last wish of a soldier, and much has been said in the cases that this intention ought to be carried out. But his last will and testament, though formally executed in writing and attested, is expressly made ineffective. Instead a notice in writing signed by the insured and forwarded to the Veterans Administration by the insured or his agent is required. No doubt receipt of the notice before death is not required, nor the use of the form provided; and the formal identification of the insured above mentioned, being for the aid of the Veterans Administration, can be waived by it. But the written, signed notice to the Veterans Administration is declared necessary, and it must be forwarded, as a sort of delivery, by the insured or his agent. And all the cases agree that the expression of a wish or intention to change the beneficiary, no matter how clearly proved, is insufficient unless the insured does some act to that end. Some of them assert that if he does all he reasonably can, it is enough even though it is not a written notice to the Veterans Administration signed and forwarded. Insurance law in general requires only substantial compliance in such matters, and we may weh say the same is true in this insurance.
But there is here no proof of any compliance or attempt at compliance. The informal family letter from the insured to his brother, who apparently was trying to get the insurance changed back to the mother, was not intended to be a notice to the Veterans Administration, nor was it forwarded by insured or his agent to it. It was a letter to his brother, and nothing more. It is wholly ineffective to change the registered beneficiary of the insurance.
But it is argued that it is evidence that he had changed it. He said he had, but it is an unsworn statement, not made in the presence of either of the contesting parties, and neither he nor his estate is a party to this case. It is not the statement of a deceased person against his interest at the time, for he had no financial interest that was prejudiced thereby. It is merely hearsay, res inter alios acta, not binding on the parties before the court. Moreover, it is vague, not indicating what he had done, and is a mere expression of opinion that he had done-something that changed his insurance, we know not what. A verbal statement would be evidence if this letter is, but surely a change of beneficiary is not provable by a verbal statement.
The argument is next made that he knew how to change the beneficiary because he had done it before, and we must say or may conclude that he did make and sign a written notice to the Veterans Administration and forward it, but that it was not received because of the turmoil of the fighting front or the sinking of vessels. This is all speculation and guess. There is no evidence *862that there was turmoil and loss of mail where he was in April, 1944. He got his mother’s letters, he got his brother’s letter, and his brother got the letter in question, and his mother got the Navy Cross, mailed at the very time and place. It does not appear that Ms company ever lost its mail, the witness who testified being in another company on another island, and at an unfixed date. If there was any proof that Ervin had mailed a letter to the Veterans Administration about the date of the letter to his brother, the latter might be admissible to show intention, or even to show the probability that the letter to the Veterans Administration did relate to the insurance, and the sinking of ships might explain the fact that the Veterans Administration did not receive its letter. But there is not a shred of proof that he ever forwarded any letter to it. Possibly he did, but there is no legal proof.
The case rests wholly on the letter of April 29, 1944, and it proves only that Ervin said he had changed the beneficiary; and that is hearsay as respects his wife. The letter should have been excluded from evidence and the verdict should have been directed for the appellant.
I must take issue with the assertion in the majority opinion that “it was stipulated that the letter constituted part of the evidence.” The stipulation was this: “The following is a true and correct copy of a letter written wholly in the handwriting of Arthur B. Ervin on April 29, 1944, to his brother Harley Ervin, nicknamed Bud, and that the original letter is in the possession of Charles L. Chandler, Bureau of War Risk Litigation, Department of Justice, U. S. Postoffice, Springfield, Missouri, who was expected to be here, but has been unavoidably prevented from attending.” This stipulation merely substituted the copy for the original letter and admitted the genuineness of the original. It did not waive objections to the .admission in evidence of the letter, and no one so contended when the- copy was offered in evidence, and objected to for reasons other than its being a copy.
It seems to me that this case, far from sustaining the insured’s right to change the beneficiary “subject to regulation,” sustains a change regardless of the regulation and on a vague declaration not made under oalh nor subject to cross-examination which is only an opinion and does not show what, if anything, had really been done. Are we to invent rules of evidence applicable only to soldiers in time of war? Are we to imagine “the maelstrom of carnage and death on the Island of Saipan” had anything to do with this matter, when it appears only that the soldier was on Saipan nine weeks later, and it does not appear where he was when he wrote this letter, nor where he was when he said he had changed his insurance? We carry romantics too far in doing so.