After this court had held, when this case was here before (Lowery v. Independent Life &c. Co., 209 Ga. 753
, 76 S. E. 2d 5), that the trial court erred in failing to sustain the general demurrer filed by one of the interpleaders, Mrs. Etta Mae Lowery Faircloth, to the petition of the plaintiff insurance company, and in failing to sustain a special demurrer to paragraph 6 of the petition which complained of the failure of the petitioner to set out when and in what manner the beneficiary was changed, and before the judgment of this court was made the judgment of the trial court on remittitur--the plaintiff insurance company amended its petition, in which it set out a copy of the insurance policy, a copy of the application for change of beneficiary made by the insured, and copies of demands for "proofs of death" filed with the company by the two interpleaders, Mrs. Etta Mae Lowery Faircloth and Mrs. Allie C. Coleman, and alleged other facts necessary to meet the objections of this court. So far as the record shows, demurrers were not filed to the petition as amended. Thereafter, the trial judge entered an order which recited that, after hearing evidence, the plaintiff insurance company was allowed to pay the proceeds of the policy into the registry of the court and be discharged from further liability. The case proceeded to trial before a jury, and the trial judge directed a verdict in favor of the defendant Mrs. Allie C. Coleman, one of the interpleaders, and in sustaining said motion stated: "Gentlemen of the jury, this policy is the law of the case. It specially provides in there that the one who has paid the expenses of the last illness, the funeral expenses, the policy provides that they are the ones entitled to the money. It is undisputed in the case that Mrs. Coleman paid it. That number one. On the other hand it is undisputed in this case that the beneficiary was changed to the mother of the deceased, Mrs. Allie C. Coleman; therefore, it's my duty as I understand the law, those two theories, Mrs. Faircloth could not recover, lost her right to it. She admitted that she had not paid any of the expenses. It is admitted that Mrs. Coleman paid them; therefore I direct a verdict for claimant, Mrs. Allie C. Coleman for the amount of $750, full face value of the policy, because it is should by undisputed evidence that she paid $753. I direct a verdict for that amount."
It is undisputed from the pleadings and evidence: that the policy was in force at the time of the death of the insured on December 27, 1952; that his wife, Mrs. Etta Mae Lowery Faircloth, appeared as beneficiary therein at the time of his death; that the insured was authorized by the provisions of the policy to change the beneficiary, as shown by the following provision therefrom: "with the consent of the company, the insured may from time to time while this policy is in force change the beneficiary by request to the home office, upon the company's prescribed form, accompanied by the policy, such change to take effect only upon endorsement hereon"; that in August, 1952, the insured's wife took the insured while in a serious condition to his mother's and left him, where he remained until his death; that, on or about December 8, 1952, the insured went to the office of the insurance company at McRae, advised the district agent that he had lost or misplaced his policy, and requested of the district agent of the company that the beneficiary be changed; and that he executed on the standard form of the company a request for change of beneficiary from his wife to his mother, Mrs. Allie C. Coleman, and that he paid up the premiums to date and kept the policy in force thereafter.
The petition as amended, which along with the other pleadings was introduced in evidence by the plaintiff in error, Mrs. Etta Mae Lowery Faircloth, contained a photographic copy of the request for change of beneficiary, and an allegation that it was mailed to the Macon office but had been lost, destroyed, or misplaced in the mails. The evidence further showed without dispute that, after the insured's death, the mother paid hospital and funeral expenses, which totaled more than the proceeds of the policy. The defendant, Mrs. Faircloth, testified: that she would want the bills of his illness, hospital, and burial expenses paid out of the proceeds of the policy; that she knew Mrs. Coleman had paid the funeral bill; and that there were other bills owed by her husband that she would like to pay also; and that she had the insurance policy, and no one had asked her for it.
Mrs. Faircloth's motion for new trial on the general grounds, and an elaboration thereof in the amended motion, to the effect that the court erred in directing a verdict because there was evidence which required submission of the case to the jury, and because the policy required that a change of beneficiary be endorsed on the policy, which was not done, was denied by the trial court, and the case was brought to this court on the denial of the motion for new trial.
In Barrett v. Barrett, 173 Ga. 375 (160 S. E. 399, 78 A. L. R. 962), this court dealt with a situation very similar to that here, and held that, where the insured did substantially all that was required of him under the terms of the policy to change the beneficiary, as shown by written requests and agreements executed on the forms prepared by the insurance company, and transmitted them to the insurance company, and where excuse was furnished for not sending in the policy for endorsement, the application of equitable principles was recurred and was sufficient compliance to effect a change of beneficiary. The court at p. 385 in that decision quoted and discussed several applicable decisions as follows: "In Baldwin v. Wheat, 170 Ga. 449 (153 S. E. 194), this court, through Justice Hines, said: 'Regulations of the association which provide the method for the change of the beneficiary must be complied with by the insured, to effect such change; and failure to comply with such regulations will make the attempt by the insured to change the beneficiary ineffectual. However, such regulations are made solely for the benefit and protection of the association; and where the association pays the fund into court, under an agreement that one of the claimants must file an equitable proceeding against the other to determine their rights thereto, the court may award the fund on equitable principles, and without regard to the technical defenses open to the association under regulations made by it for the change of such beneficiary. Between the adverse claimants such regulations, in a court of equity, have no effect except to aid and ascertain the intention of the insured.' In Dell v. Varnedoe, 148 Ga. 91 (95 S. E. 977), it was said: 'The authorities are not in harmony upon the point whether such an association by paying the money into court waives its right to object to the designated beneficiary as ineligible to claim as such, but this court appears to have adopted the rule that payment of the fund into court, with the statement that the company stands indifferently between the parties, is a waiver of all defenses open to it under regulations made solely for its benefit. In such a case it is said that the equities of the contestants will be compared. Mitchell v. Langley, 143 Ga. 827, 832-33, (85 S. E. 1050, L. R. A. c, 1134, Ann. Cas. aC, 469); Royal Arcanum v. Riley, 143 Ga. 75 (84 S. E. 428). There are cases in other jurisdictions holding to the contrary; but in the well-considered opinion in Nally v. Nally, 74 Ga. 669 (58 Am. R. 458), by Hall, J., based upon principle rather than upon precedent, where the association stood indifferently between the parties, as in this case, this court applied the doctrine of equitable relief as between the claimants to the fund, considering that as done by the insured member which ought to be done.' "
This case is distinguishable from Smith v. Locomotive Engineers &c. Ins. Assn., 138 Ga. 717 (76 S. E. 44), and Loyd v. Loyd, 203 Ga. 775 (48 S. E. 2d 365), because in each of those cases the insured made no effort to have the beneficiary changed. This court in the Loyd case, supra, at p. 781, quoted with approval this statement from the Smith case, supra: "If, however, the insured has done substantially all that is required of him, or all that he is able to do, to effect a change of beneficiary, and all that remains to be done is ministerial action of the association, the change will take effect though the details are not completed before the death of the insured. Ib. [Cooley's Brief on Insurance] 3769; Nally v. Nally, 74 Ga. 669 (58 Am. R. 458); Brown v. Dennis, 133 Ga. 791 (66 S. E. 1080); Brown v. Dennis, 136 Ga. 300 (71 S. E. 421). Some affirmative act, however, on the part of the member to change the beneficiary is required; his mere intention will not suffice to work a change of beneficiary."
Under the above authorities, a mere intention to change the beneficiary without some overt act in that direction is not sufficient even in a court of equity, because the insured may have never actually intended to make the change, although he had expressed such intention, whereas, when he makes the effort to make the change and does substantially all he can to do so, his intention is established; and, as stated in Barrett v. Barrett, 177 Ga. 190, 192 (170 S. E. 70): "An equitable principle applicable in this case is contained in the maxim that equity regards as done that which ought to be done; and in 37 C. J. 585, we find the principle stated: 'On the principle that equity regards as done that which ought to be done, the courts will give effect to the intention of the insured by holding that the change of beneficiary has been accomplished where he has done all that he could to comply with the provisions of the policy, as where he sent a proper written notice or request to the home office of the company but was unable to send the policy by reason of circumstances beyond his control, as where it has been lost, or was in possession of another person who refused to surrender it, or was otherwise inaccessible.' "
Since the insured did substantially all he could to change the beneficiary, and applying the above principles to the undisputed facts in this case, the court did not err in directing a verdict for the defendant in error upon the ground that there had been substantial compliance by the insured to change the beneficiary from his wife to his mother.
In view of the above ruling, it is not necessary to determine whether the facility-payment provision of the policy required payment to the defendant in error because of payment by her of hospital and funeral expenses of the insured.
Judgment affirmed. All the Justices concur.