of the insured with respect to the designation of beneficiaries. The designation of a beneficiary upon proof of a will must be of specific nature and must clearly show that the soldier intended the last will and testament to operate as a designation of beneficiary. Hatch v. United States, D.C., 29 F.2d 213.
The execution of a will by the insured prior to his entry into the military service and prior to the application for insurance standing alone is insufficient under the circumstances of the case to warrant a finding that the insured intended to make plaintiff the beneficiary under his first contract of insurance. This is true even if weight be given to the execution of the will as evidence of the intention of the insured to designate a beneficiary. It follows that the adjusted awards made by the Veterans' Administration in 1934 when the true facts were discovered as to the surviving relatives of the insured, within the permitted class, were timely made and entirely correct.
The affidavits of plaintiff and of Lambros Hassotis in support of their claims for the benefits of the first contract of insurance were false and fraudulent and known to plaintiff and to her brother Lambros to be false and fraudulent in that plaintiff and Lambros each denied that the deceased insured had left surviving him a father who was by provision of law within the permitted class of beneficiaries and entitled to receive the benefits payable under the first contract of insurance, whereas in fact the deceased insured did leave him surviving at the time of his death a father and other relatives then residing in Greece.
It is clear that such false and fraudulent statements were made by plaintiff and Lambros with intent and for the purpose of deceiving and defrauding the defendant and the defendant was in fact deceived and defrauded thereby, and in reliance upon the truth thereof made the payments of insurance benefits to the plaintiff and to Lambros under the first contract of insurance. The plaintiff intended that the defendant should rely upon such false representations. She was content to have her brother Lambros get one-half of the proceeds of the first contract of insurance. Apparently she was averse to participation by her half brothers and sisters in the distribution.
Plaintiff asks the court to require the defendant to make double payment in the sum realized by her brother Lambros. It has been held that, if the United States were induced by the misrepresentations of an insured, in an application for insurance, to pay the benefits of the policy to a person not entitled thereto under the statutes, the United States cannot be required to pay a second time. United States v. Campbell, 4 Cir., 139 F.2d 424. In the same case it was said that a beneficiary, though not a party to the contract, does not have any higher right than a representative of the estate of the insured. This principle of law seems more true where, as here, the beneficiary is a party to the false and fraudulent representations by reason of which the Veterans' Administration was induced to make payments to a person not entitled to the benefits of the policy.
This plaintiff at best is guilty of laches and it must be said that she acquiesced in the distribution of the proceeds of the contract of the insurance between herself and her brother Lambros. Courts do not look with favor on such conduct. Hayward v. National Bank, 96 U.S. 611, 24 L. Ed. 855.
The plaintiff has been paid more than she is entitled to under the two contracts of insurance. She may not in good conscience expect further payments. She is estopped by her conduct and by her acquiescence to require the defendant to make double payment of the proceeds of the insurance.
The defendant's motion to dismiss will be sustained. Counsel for defendant will submit an appropriate order.
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