Brill v. Railway & Electric Co., 215 U. S. 532, 533, 30 S. Ct. 177, 54 L. Ed. 311; Slocomb & Co. v. Layman Mach. Co. (D. C.) 227 F. 94, affirmed in 230 F. 1021, 144 C. C. A. 286; Jones v. Evans, 215 F. 589, 131 C. C. A. 654.

[2] Moreover, plaintiff thus construed his general and ambiguous claims in order to induce acceptance of his application for patent, and he amended the specifications to emphasize the "seal or air and gas tight joint." That construction, accepted by the grantor of the patent, is now conclusive upon plaintiff, even as is the like in any other variety of contract likewise secured. See Supreme Mfg. Corp. v. Mfg. Co. (C. C. A.) 299 F. 66; Lorraine v. Townsend (C. C. A.) 290 F. 59; Selectasine Patents Co. v. PrestO-Graph Co. (C. C. A.) 282 F. 224.

Apropos of this, it appears that the application originally included 16 claims. All were rejected by reason of various patents, and including Perkins, No. 951,199. Then followed the usual strategy in trial of skill, persistence, and endurance between applicant and Examiner, the usual ingenuity in language, in multiplication, extension, inversion, involution, iteration, and reiteration of words, synonyms, and phrases tending to confuse, obscure, and befog, and in hope eventually to overcome or evade objections, and secure all, if not more than, was originally claimed.

After two years of these tactics, interference was declared with Dwight. The proceedings that followed continued for seven years, and ended in award to plaintiff of all claims in respect to the hood forming a seal or air and gas tight joint with the holder, and of all others to Dwight, including a claim for a hood "arranged to confine hot igniting materials and direct heat therefrom" to the ore in the holder. This award was affirmed by the Court of Appeals. See Greenawalt v. Dwight, 49 App. D. C. 82, 258 F.

982.

To conform to it the Examiner excluded certain claims from the application. Plaintiff then surrendered 21 other claims, and by way of substitution tendered 29 claims, accompanied by request that action be deferred until counsel could personally interview the Examiner. At this interview, doubtless in Dwight's absence, counsel's eloquence prevailed, or the Examiner, exhausted, surrendered. For these substitutions were accepted, although in substance they include all of the rejected original 16 claims, and upon the application, then expanded to 49 claims, patent issued.

In justice to the Examiner thus finishing some laps back of the starting point, it is recorded that he asserted his authority to the bitter end, and at the last constrained plaintiff to accept a series of amendments of that importance which required change of "is" to "are" and the like. The language of these general claims of plaintiff is like to that of the claims of Dwight. Their construction is otherwise by reason of circumstances and principles aforesaid. For that matter, the awards alone suffice to restrict the construction of plaintiff's claims to the hood by him described and to him awarded, and are conclusive upon him.

Whatever is excluded in interference cannot be included in the patent; and whatever thus cannot be included cannot be claimed by construction. That plaintiff's hood is flame-confining or may be flame-directing, is nothing but an attribute of all furnace tops, covers, or hoods, and is not his invention in fact or claim. Defendant's apparatus is unlike plaintiff's, resembles Dwight's or that of Perkins, is not within the claims in suit, and does not infringe.

Adverting to the defense of anticipation, if by naught else, it is made out by evidence that early in 1908 the Peruvian government published a Bulletin 61, minutely, fully, and sufficiently describing certain ore-sintering apparatus in practical operation by the Cerro de Pasco Mining Company, and which employed the same seal or air and gas tight joint between hood and holder, that is claimed to be the novel and central element or feature of plaintiff's patent. In principle the Cerro de Pasco apparatus is substantially like plaintiff's. If later than plaintiff's, it would infringe, and earlier, it anticipates.

The evidence is that the Cerro de Pasco apparatus successfully sintered the ores, though in prevailing conditions was not highly economical, and together with the company's smelter was scrapped and replaced, the apparatus with apparatus like defendant's. In like circumstances and under like conditions of ores, fuels, etc., there is no reason why the Cerro de Pasco apparatus would not sinter substantially like plaintiff's apparatus. That in the former the air for both combustion and down draft enters at the top of the hood, and in the latter only air for combustion enters at the top, the air for the down draft operating by suction from below the ore, is distinction without difference.

At any rate, to effect this change is not invention, nor so claimed in the patent, but is.

only usual progress of skill in the art. That publication, more than two years prior to plaintiff's application, is a statutory bar to plaintiff's patent and invalidates it.

Decree accordingly.

BROWN v. HOME LIFE INS. CO. OF NEW YORK (COLVIN et al., Interveners). (District Court, E. D. Oklahoma. January 19, 1925.)

No. 4469.

(Syllabus by the Court.)

1. Insurance 586-Beneficiary had no vested right where policy reserved to insured the right to change beneficiary.

Under a life insurance policy reserving to insured the right, without the consent of the beneficiary, to change the beneficiary, the original beneficiary had no vested right, but only a mere expectancy during the lifetime of the insured.

2. Insurance 587-Equity will regard Indorsement of change of beneficiary as completed where insured failed without valid reason to make indorsement.

Where a policy of life insurance provides, "When the right of revocation has been reserved, the insured, if there be no existing assignment of the policy filed with the company

as herein provided, may, while the policy is in force, designate a new beneficiary, with or without reserving the right of revocation, by filing written notice thereof at the home office of the company, accompanied by the policy, for suitable endorsement thereon. Such change shall take effect upon the endorsement of the same on the policy by the company and not before," and the insured submits to the home office the required notice on a blank furnished

by the company for the purpose of changing the beneficiary and returns the policy, and the company fails and refuses to make the suitable indorsement for no valid reason, equity will regard the indorsement of the change of benefi

ested stakeholder and enters a plea in the nature of a bill of interpleader, and the only question before the court is the determination of the person entitled to the tender made by the defendant, it is within the power of the court to compel the plaintiff to do equity in the premises if he is to prevail in the action.

At Law. Action by Gertrude F. Brown against the Home Life Insurance Company of New York, in which H. C. Colvin, trustee in bankruptcy of the estate of Curtis Brown, a bankrupt, and another, intervened. Decree for plaintiff, with condition.

William S. Rogers, of Tulsa, Okl., for plaintiff.

Kleinschmidt & Johnson, of Tulsa, Okl., for defendant.

D. F. Gore and E. J. Lundy, both of Tulsa, Okl., and Julius Moses, of Chicago, Ill., for trustee.

KENNAMER, District Judge. Mrs. Gertrude F. Brown instituted this action against the Home Life Insurance Company, a corporation, to recover $40,000 alleged to be due upon two ordinary life insurance policies issued by the defendant company upon the life of Curtis C. Brown. Boone Williams, trustee in bankruptcy of Curtis Brown Company, a corporation, bankrupt and H. C. Colvin, trustee in bankruptcy of estate of Curtis C. Brown, bankrupt, have intervened in the action. The defendant insurance company has answered tendering the amount of the policies into court and assumed the position of a disinterested stakeholder of the proceeds due on the policies.

The material facts necessary to be considered in determining this cause are that on the 12th day of August, 1919, the Home Life Insurance Company of New York, in consideration of an annual premium of

ficiary to the proceeds of said policy.

3. Bankruptcy 396 (1, 3)-Exemptions left

to state laws; proceeds of life policy payable

to or for benefit of wife did not pass to husband's trustee in bankrupty in view of state

law.

The matter of exemptions is left by Bankruptcy Act, § 6 (U. S. Comp. St. § 9590), to state laws. Under Compiled Oklahoma Statutes 1921, § 6727, life insurance policies payable to or for the benefit of a married woman are exempt from his debts, and the proceeds of such a policy do not pass to his trustee in bankruptcy.

4. Interpleader 32-Court may require plaintiff to do equity if he is to prevail in action in which defendant entered plea in nature of bill of interpleader.

Where an action originates at law, and the defendant assumes the position of a disinter

executed and delivered to Curtis C. Brown an ordinary life insurance policy in writing in the sum of $20,000, policy No. 239366, in which Curtis Brown Company was named beneficiary. On the 31st day of August, 1921, the defendant insurance company, in consideration of a premium of $755.40, executed and delivered an ordinary life insurance policy to Curtis C. Brown, insured, in the sum of $20,000, Policy No. 263476, in which the Curtis Brown Company was named beneficiary.

On March 26, 1924, Curtis Brown Company was adjudged a bankrupt and Boone Williams was appointed trustee. Curtis Brown was president and managing officer of the Curtis Brown Company. The schedules attached to the petition filed in the

Company listed the policies as assets of said company, and the petition was verified by Curtis Brown. On April 24, 1924, Curtis Brown being in possession and control of the insurance policies, returned the same to the head office of the insurance company, together with written directions to change the beneficiary in the policies from the Curtis Brown Company to Gertrude F. Brown, his wife.

On May 27, 1924, the insured, Curtis C. Brown was adjudged a bankrupt, and the following September H. C. Colvin was appointed trustee of the bankrupt estate of the insured. On May 2, 1924, the defendant insurance company in writing acknowledged receipt of the policies and the written request of the insured Curtis C. Brown to change the beneficiaries in the policies and sent to the insured blank forms of direction for change of beneficiary, which the insured Curtis C. Brown filled out and executed in accordance with the request of the insurance company and returned to it. Receipt of same were acknowledged on May 9, 1924. During the time from May 2 until May 9 the defendant insurance company received notice from Boone Williams, trustee in bankruptcy of the Curtis C. Brown Company estate, that the trustee claimed the policies as assets of the estate.

The defendant insurance company on receiving this notice from the trustee of the Curtis Brown Company, bankrupt, notified the insured, Curtis C. Brown, that by reason of the claim having been made by the trustee it was deferring any action in reference to indorsing the name of new beneficiary pending an adjustment of the claim of Boone Williams, trustee in bankruptcy, to the policies. Without any indorsement having been made as provided in the policies, this condition existed until the 6th day of August, 1924, when the insured, Curtis C. Brown died. Gertrude F. Brown claims the proceeds of the policies as the beneficiary asserting that the insured, Curtis C. Brown, having fully complied with all the requirements of the contract of insurance to accomplish a change of beneficiary in the policies, equity will regard the change as having been actually made. Also, the right to change beneficiary having been reserved in the application and the contracts of insurance the first named beneficiary, Curtis Brown Company, had no vested right but only a mere expectancy during the life of the insured. The intervener, H. C. Colvin, trustee in bankruptcy of the estate of Cur

who the beneficiary may be, that he as such trustee is entitled to the cash surrender value of the policies in question under the provision of sections 6 and 70 of the Bankruptcy Act (Comp. St. §§ 9590, 9654). The intervener, Boone Williams, trustee in bankruptcy of the Curtis Brown Company, contends he is entitled to the proceeds of the two insurance policies in question on the ground that the corporation was at all times the owner of the policies and also for the reason that it was the beneficiary therein, and that the alleged change of beneficiary was ineffectual.

In determining the controlling question in this case it may be well to observe that the policies in controversy contained the following provision:

"When the right of revocation has been reserved, the insured, if there be no existing assignment of the policy filed with the company as herein provided, may, while the policy is in force, designate a new beneficiary, with or without reserving the right of revocation, by filing written notice thereof at the home office of the company, accompanied by the policy, for suitable indorsement thereon. Such change shall take effect upon the indorsement of the same on the policy by the company and not before. If any beneficiary, under either a revocable or irrevocable designation, shall die before the insured, the interest of such beneficiary shall vest in the insured unless otherwise herein provided."

The application for the insurance policy also reserved to the insured the power to change beneficiary, which applications by reference were made a part of the policies. It is plain the insured reserved the unqualified right to change the beneficiary. The manner of effectuating such change was provided for by only requiring the insured to request such change by filing written notice thereof with the insurance company at its home office and upon returning the policies for proper indorsement. While it is provided that the change is to become effective when the designation of new beneficiary is indorsed on the policy by the company, it is clear the only purpose of this last provision of the taking effect of the change in beneficiary upon indorsement on the policy is for the protection of the company, and I cannot agree that this provision required the assent of the company before the insured would have the right to exercise his power of making a new appointment. It is well settled that where no reservation of a

right to change beneficiary exists in an ordinary policy, the interest of the beneficiary is a vested interest, and the insured is without power by deed of assignment or will or any other acts of his to transfer to any other person the interest of the person so named as beneficiary. In such a policy the beneficiary, the moment it is issued, acquires a vested right which cannot be affected by any right of the insured subsequent to the execution of the policy, except it be a breach of the condition. Washington Central Bank v. Hume, 128 U. S. 195, 9 S. Ct. 41, 32 L. Ed. 370; Mutual Benefit Life Insurance Co. v. Swett et al., 222 F. 200, 137 C. C. A. 640, Ann. Cas. 1917B, 298; City National Bank of Lawton v. Lewis, 73 Okl. 329, 176 P. 247; Supreme Council of Royal Arcanum v. Sue B. Behrend, 247 U. S. 394, 38 S. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966.

[1,2] But in an ordinary life insurance policy where the right is reserved to change the beneficiary by the insured, and the insured has substantially complied with all the requirements of the contract of insurance to accomplish a change of beneficiary in the policy, such change of beneficiary cannot be defeated by the failure of the insurance company to indorse the change upon the policy when no valid reason exists why such endorsement was not made, but in such situation equity will regard that as done which ought to have been done. In determining the right of the last-named beneficiary to the proceeds of the contract of insurance, equity will treat the change as having been accomplished. In reaching this conclusion, the court is not unmindful of the rule adhered to by many authorities that, where the insured enters into a contract with third persons to name such persons as beneficiaries in an insurance policy upon the expressed condition that such third person will pay the premiums on the policy, equity will not recognize any change of beneficiary under such circumstances; but in the instant case there is no evidence establishing such an agreement on the part of the insured with the Curtis Brown Corporation.

The only evidence in this regard in the record is that Curtis Brown, who owned the controlling interest in the corporation, agreed with another stockholder that it would be well to take out on each of their lives an insurance policy for the benefit of the corporation. From such evidence I do not believe the inference may be drawn that there existed a contract between Curtis Brown Corporation and the insured, Curtis Brown, that in consideration of the insured

securing insurance and the payment of the premium by the corporation that the insured Curtis Brown obligated himself not to change the beneficiary in the event such corporation became bankrupt and ceased to exist as a going concern. In this case the Curtis Brown Corporation had the benefit of the protection afforded by the two insurance policies as long as it was a going corporation.

In the case of Supreme Council of the Royal Arcanum v. Behrend, supra, Justice Brandeis said:

"The mere fact that she paid some, and possibly all, of the assessments, prior to the change of beneficiary, even if paid out of her separate estate, raises no legal claim. Perhaps there was not even a moral claim; since throughout the period during which she paid assessments, she enjoyed full protection which the order agreed to furnish; and for this alone payments were made."

[3] With regard to the claim of H. C. Colvin, trustee of the estate of Curtis Brown, bankrupt, that under section 70 of the Bankruptcy Act, the trustee is entitled to the cash surrender value of the insurance policies, I deem it sufficient to say that the statute of Oklahoma, section 6727, Compiled Statutes 1921, provides:

"Every policy of life insurance made payable to or for the benefit of a married woman, or which after its issue is assigned, transferred, or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband or by any other person, shall inure to her separate use and benefit, subject to the provisions of the preceding section relating to premiums paid in fraud of creditors, and subject to any indebtedness on account of the policy: Provided, that the insured under such policy shall not be denied the right to change the beneficiary where this right is expressly reserved in the policy."

And that according to the provisions of this section of the Oklahoma statute, the beneficiary, Gertrude Brown, the wife of the deceased, is entitled to the proceeds of the policies, including the cash surrender value. The proceeds of the policies are exempt under the statute and do not pass to the trustee in bankruptcy for the benefit of the creditors of the bankrupt estate.

This question as here involved has been decided adversely to the contention of counsel for Colvin, trustee, in the cases of Mag