opinion: NEW ENGLAND MUT. LIFE INS. CO. v. SPENCE et al.
  No. 320.
  Circuit Court of Appeals, Second Circuit.
  June 12, 1939.
  CLARK, Circuit Judge, dissenting.
  Gibbons, Pottle & Pottle, of Buffalo, N. Y. (Frank Gibbons, of Buffalo, N. Y., of counsel), for appellant White, as administrator of Slade.
  Francis T. Findlay, of Niagara Falls, N. Y. (Bernard Sax, of Niagara Falls, N. Y., of counsel), for appellee Spence.
  Before L. HAND, CLARK, and PATTERSON, Circuit Judges.
  L. HAND, Circuit Judge.
  This is an appeal from a decree in a suit of interpleader to determine which of two claimants was entitled to the proceeds of a life insurance policy. The plaintiff insured the life of one, Slade, for $3,500, payable to Slade’s wife, now the appellee Spence. The couple then lived in Buffalo, and the contract was made either there or in' Boston, the plaintiff’s home office, where the policy was payable. The Slades moved to Texas, where they became domiciled, and where they were divorced upon the petition of the appellee, Spence. She then came back to Buffalo, where in turn she became domiciled and married Spence; Slade stayed in Texas and also remarried. He has now died, and the appellant, White, is his administrator, appointed in New York. The Texas decree of divorce made no disposition of the insurance policy, but White claims that by the law of that state, the decree of divorce extinguished the interest of Spence, and transferred all benefits under the policy to Slade. The law of New York gives no such effect to a decree of divorce, and the district judge, believing that that law controlled, awarded the proceeds to Spence. The law of Massachusetts is like that of New York.
  White is certainly right that by the law of Texas upon her divorce a wife’s interest as beneficiary in a policy insuring her husband’s life passes to him, although the decree of divorce docs not mention the policy. In Hatch v. Hatch, 35 Tex. Civ.App. 373, 80 S.W. 411, the husband had before his marriage taken out a policy, payable to his mother, but if he survived her, to his executors or administrators. He married the defendant, and shortly thereafter he and his mother conveyed to her all their interest in the policy, and she later paid several of the premiums. They were divorced, the decree making no disposition of the policy; whereupon he and his mother brought an action against the insurer, joining the defendant, in which they prayed that the policy be declared to be his. So the court held, though it gave the divorced wife a lien for the premiums she had paid. This result was thought to follow from the fact that in Texas a divorced wife has no insurable interest in her former husband’s life. The second case was Whiteselle v. Northwestern Mutual Life Insurance Co., 221 S.W. 575, decided by the Commission of Appeals and approved by the Supreme Court of the state. The plaintiff, a divorced wife, sued the insurer upon a policy taken out by her former husband, who had made her the sole beneficiary without power of substitution. The premiums had been paid out of community property up to the time of their divorce, but although the decree allocated her separate property to the wife and divided the community property, it said nothing about the policy. The court dismissed the complaint, relying upon the doctrine of Hatch v. Hatch, supra.
  The question before us is whether the law of conflict of laws of New York will treat as valid an involuntary transfer of the wife’s chose in action, valid by the law of the place where both parties resided. There can be no doubt that if the transfer, had been voluntary, i. e. by assignment, the courts of New York would follow the law of the place where the assignment took place. Olmsted v. Keyes, 85 N.Y. 593. In this respect insurance policies are no different from other dioses in action. Miller v. Campbell, 140 N.Y. 457, 35 N.E. 651; Jackson v. Tallmadge, 216 App.Div. 100, 214 N.Y.S; 528. This is indeed the law generally. Farmers’ L. & T. Co. v. Minnesota, 280 U.S. 204, 214, 50 S.Ct. 98, 74 L.Ed. 371, 65 A.L.R. 1000; Restatement of Conflict of Laws, § 350. We can see no reason to distinguish an involuntary transfer, when both parties are present within the state, where the transaction occurs; a fortiori, when they are both domiciled there. There is no magic in consent; the law of the place where an assignment takes place, assigns to it such consequences as it chooses: sometimes it will effectuate the parties’ intent; sometimes it will frustrate it. Other states need not of course recognize the effect it gives, and they will not, if it is too offensive to their taste. But otherwise they do; among other reasons, because it avoids a shifting of rights with the forum. Similarly any state in which a non-consensual transaction occurs — a conviction of felony for example — may attach to it such consequences to the participants as it sees fit. And when the law of the state of the transaction makes it transfer property, we cannot see why other states should balk at recognizing the validity of that transfer as much as though the transaction had been an assignment. The involuntary transfer of chattels at any rate is so recognized. Green v. Van Buskirk, 7 Wall. 139, 19 L.Ed. 109; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, 23 L.Ed. 1003; Clark v. Williard, 292 U.S. 112, 54 S.Ct. 615, 78 L.Ed. 1160. (semble). The putative transferor must indeed be within the state, but that is implied in saying that he is a participant in the transaction. Nor can we see that the law of the place of performance has anything more to do with the question than when the transfer is by assignment. In both situations the law of the place of performance will indeed determine what is performance; that is, whether the obligor need perform to anyone but the original obligee. But when the obligor is indifferent to the identity of the obligee, so he be discharged, no question of performance arises, and the only relevant issue is as to the validity of the transfer as between the transferor and the transferee.
  We have found no case in point, however. In McGrew v. Mutual Life Ins. Co., 132 Cal. 85, 64 P. 103, 84 Am.St.Rep. 20, it was held that a divorce in Hawaii did not transfer the wife’s right as beneficiary, for she had become domiciled in California before the decree was entered. The implication seems to be that if her domicile had continued to be in Hawaii, the result would have been otherwise; but the decision does not so hold. Beale — Conflict of Laws § 346.4 — says that “the law of the place of contracting governs in determining whether the right of a beneficiary * * * is lost by a divorce”; but the only authority cited is Pendleton v. Great Southern Life Ins. Co., 135 Okl. 40, 273 P. 1007, which is directly contra on the facts. The husband, who lived in Oklahoma with his wife, had insured his life for her benefit in an Oklahoma insurance company, all of whose risks were later assumed by a Texas company. He substituted his second wife as beneficiary; she divorced him and he died. By the law of Oklahoma this did not transfer the wife’s interest, and the court held that Oklahoma law was to be applied. It reached this result because the policy was “an Oklahoma contract, and the same is thereby construed according to the laws of Oklahoma.” If by this was meant that transfers of an interest in a policy are part of the “construction” of the contract and depend upon the law of the place of execution or of performance, it is certainly contrary to the general rule. Moreover, the- obligation sued upon was that of the Texas insurer; so that if the law was as the court thought, the law of Texas should have governed. In any event the language was obiter, because the divorce was in Oklahoma and it was an Oklahoma court which was deciding its effect.
  Finally, in the case at bar, this part of the law of Texas is not so repugnant to notions of justice prevalent in New York that we must reject it. There may indeed be little ground for the fear that a divorced wife will be tempted to make away with her former husband; but the belief that the beneficiary of life insurance should have an interest in the insured’s continued life, is very ancient and still persists. There is not the slightest reason for saying that this application of it is contrary to the local mores, merely because by the law of New York divorce- does not transfer the wile’s interest.
  Judgment reversed, cause remanded with instructions to enter judgment for White, as administrator.