Before GRIMBALL, J., Richland, September, 1937. Reversed and remanded, with directions.

Action by Mamie Wilkie and others against the Philadelphia Life Insurance Company and Barbara H.O. Griffin to recover on a life policy issued by the first-named defendant. From a judgment favorable to plaintiffs, the last-named defendant appeals.

The Master's report is as follows:

1. Pursuant to an order of reference granted by Hon. C.J. Ramage, presiding Judge of the Fifth Judicial Circuit, dated 27th day of February, 1937, referring the aboveentitled cause to the Master for the purposes set forth in said order, I have held references herein, attended by the attorneys of record, took the testimony and other evidence offered and therefrom find and conclude as hereinafter set forth.

2. I find that under date the 10th day of November, 1923, the defendant, Philadelphia Life Insurance Company, in consideration of the payment of the premiums stipulated therein issued its certain policy of insurance Number 73779 upon the life of Eulela H. Otis, then a resident of the City of Columbia, Richland County, South Carolina, and did thereby in consideration of the payment of the premiums agreed to be paid insure the life of the said Eulela H. Otis in the principal sum of $3,000.00, payable upon due proof of the death of the said Eulela H. Otis to her executors, administrators or assigns.

3. I further find that the right was reserved to the insured to change the beneficiary therein in accordance with the following policy provisions: "The insured may, while this policy is in force and unassigned, change the beneficiary. Written request must be made and the change will take effect when endorsement is made by the Company upon the policy. The right is reserved to the insured, without the consent of the beneficiary, to receive every benefit, exercise every right and enjoy every privilege conferred upon the insured by this policy."

4. I further find that by instrument in writing, bearing date the 13th day of May, 1925, and attached to said policy, the company and the insured entered into a special agreement for settlement at maturity and change of beneficiary by which the net sum of insurance with interest at 31/4%, compounded annually, shall be payable to Barbara H. Otis, daughter of the insured, in equal monthly installments of $30.00, the first installment to become due and payable upon receipt by the company of due proofs of death of the insured.

5. I further find that at Philadelphia, Pa., the Home Office of the company, the company under date May 25, 1925, duly endorsed upon said policy of insurance the change of beneficiary from the estate of the insured to the defendant, Barbara H. Otis, as follows:

"At insured's request, the amount due at the death of insured, shall be payable not to the beneficiary hereinbefore designated but to Barbara H. Otis, daughter, in the manner and proportions, at and for the times, and upon the conditions specified in the special agreement for settlement at maturity, executed by the company and the insured in duplicate originals, one of which is attached to this policy.

"Philadelphia, May 25, 1925.

"ERNEST M. BLEHL, "Actuary."

6. I further find that under date the 3rd day of April, 1936, the insured wrote the company that she intended to change the beneficiary in said policy to her four sisters, Mamie Wilkie, Electra Kimbrough, Sallie H. Smith and Ella H. Jepson, the plaintiffs in this action, with the request that the change of beneficiary become effective immediately, which letter was received by the company, at its home office in Philadelphia on April 6, 1936. In the meantime, to wit: April 5, 1936, the insured was admitted to the Columbia Hospital, Columbia, South Carolina, and on the morning of April 6, 1936, underwent surgical operation; that by letter dated April 6, 1936, the company acknowledged the insured's letter and enclosed change of beneficiary form for her execution and return to the company with the policy for endorsement thereon, which letter was delivered to the insured at the hospital on April 8, 1936. The insured executed the form on April 8, and retained the same in her possession until April 11, at which time the insured had one of the attending nurses post the same in the Columbia post office, addressed to the company. By letter dated April 14, the company acknowledged receipt of the form for change of beneficiary duly executed, and again requested that the insured forward the policy for endorsement, which letter was delivered to the insured at the hospital on April 16th.

7. I further find that during the times above mentioned the policy of insurance was in the insured's lock box in the vault of South Carolina National Bank, Columbia. I further find that on April 3, 1936, the insured delivered the key to her lock box to her attorney for the purpose of transacting certain business not involved in this suit, and that the attorney delivered the key to the insured in person on April 16th.

8. I further find that the insured underwent another operation on April 18th, from which she failed to recover and died on April 20th, without having forwarded the policy to the company for the purpose of affecting the change of beneficiary, and further that said policy was in full force and effect at the time of her death. I further find that the insured was physically unable to leave the hospital, go to the bank, obtain the policy of insurance and forward same to the company. I further find that up to and including the day before her death, the insured was surrounded by all reasonable and necessary conveniences and attendants, and with presence of mind by which she could have caused the policy to be forwarded to the company.

9. I further find that the insured was a woman of strong mind and unusual business ability and that she was entirely rational up to and including the day before her death.

10. I further find that the insured was under no legal or equitable obligation to her four sisters or either of them to effect a change of beneficiary in said policy of insurance so as to make the benefits thereof payable to them, and that neither of the plaintiffs nor the defendant, Barbara H. Otis, the designated beneficiary, had any knowledge of the intention and efforts of the insured to make the change.

11. I further find that the defendant, Barbara H. Otis, as the designated beneficiary in the policy, filed due proofs of death with the insurance company, but that payment was refused on account of the conflicting claims of the plaintiffs and the said Barbara H. Otis, whereupon this action was instituted by the plaintiffs in which they claim to be equitably entitled to the proceeds of the insurance. The insurance company, by its answer, admits its liability to pay the face amount of the policy in accordance with the policy provisions. The defendant, Barbara H. Otis (now Barbara H. Otis Griffin), daughter of the insured and the designated beneficiary in said policy claims that she is entitled to receive payment in accordance with the trust provisions of said policy.

12. I conclude from the evidence in the record and from the facts as thus found that the plaintiffs have failed to establish such equitable title to the fund as would entitle them to receive payment and that the plaintiffs' claim should be dismissed on the merits.

CONCLUSIONS OF LAW

The legal position of the plaintiffs, as stated by their counsel in the record and in argument is, that the insured substantially complied with the terms of the policy with reference to the change of beneficiary from the defendant, Barbara H. Otis, to them, and that she did everything reasonably within her power to bring about the change; that the insured's failure to forward the policy to the insurance company's home office for the endorsement as required by the terms of the policy was made impossible because of her physical inability to leave the hospital and go to the bank and get the policy; that the defendant insurance company having admitted liability under the policy and having agreed to pay the proceeds to whomever the Court should adjudge to be entitled to receive payment, has waived its right to object to the failure of the insured to forward the policy to the home office for endorsement, and that the defendant, Barbara H. Otis, cannot at this time object to the failure of the insured to forward such policy in accordance with its terms, with respect to change of beneficiary.

It is apparent that the plaintiffs have attempted to bring their claim within the broad principles of equity jurisdiction that "equity regards and treats that as done which in good conscience ought to be done," and that "equity looks to substance rather than to form." The latter maxim is closely associated with and evolves out of the first. The first maxim is the basis upon which an equitable right or title is founded, while the latter appertains more exactly to the equitable remedy by which such equitable right or title, once established, is given legal effect, by dispensing with pure formalities which would otherwise defeat the equity.

If I have thus assigned the correct values to these two, and only two, underlying equitable principles on which the plaintiffs rely in support of their claim, I am forced to the conclusion that the facts as found and reported in the evidence fail to establish any equitable title in the plaintiffs to the fund in question.

The rule is stated, clearly and in its broadest sense in Volume I, Pomeroy's Equity Jurisprudence, Fourth Edition, Section 364, as follows: "Equity regards and treats that as done which in good conscience ought to be done. Some writers have failed to apprehend the full significance of this maxim, and have described its effects in altogether a too narrow and partial manner. Others have correctly looked upon it as the very foundation of all distinctively equitable property rights, of all equitable estates and interests, both real and personal. It is in fact the source of a large part of that division of equity jurisprudence which is concerned with equitable property; the doctrines and rules which create and define equitable estates or interests are in great measure derived from its operation. So far from the maxim being confined to express executory contracts, and to those dispositions of property which give rise to an equitable conversion, it has been applied by the most eminent Courts to all classes of equities; to every instance where an equitable ought with respect to the subject-matter rests upon one person toward another; to every kind of case where an affirmative equitable duty to do some positive act devolves upon one party, and a corresponding equitable right is held by another party. Whenever Courts of high authority have dealt with the principle in a narrower manner, and have given to it a more restricted operation and effect, their language although perhaps very general in its terms, should be taken as confined, and is intended by the Court to be confined, to the particular application of the maxim then under judicial investigation."

In the following paragraph, Section 365, Pomeroy states the meaning and illustrates the effect of the principle in the following language: "What is the true meaning of the principle, taken in its most comprehensive and generic sense? and what are its true effects upon the system of distinctive doctrines and rules which constitute the equity jurisprudence? In the first place, it should be observed that the principle involves the notion of an equitable obligation existing from some cause of a present relation of equitable right and duty subsisting between two parties — a right held by one party, from whatever cause arising, that the other should do some act, and the corresponding duty, the ought resting upon the latter to do such act. Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done. Nor does the principle operate in favor of every person, no matter what may be his situation and relations, but only in favor of him who holds the equitable right to have the act performed, as against the one upon whom the duty of such performance has devolved."

If, as shown by the foregoing statement of the law, in order to invoke the doctrine, one must show some duty imposed upon another to perform some particular act, which act was not performed, and by such failure to perform has caused a resulting inequitable situation to arise, we must in this case ascertain the duty to be performed and the corresponding right to require its performance. Before reverting to the facts already found for an answer to this question, consideration should be given to the legal effect of the contract of insurance in question. The insured unquestionably reserved the right by the terms of the policy above quoted to change the beneficiary, and actually accomplished a change to her daughter in 1925, in strict accordance with the contract method for affecting such change.

We see, therefore, that in April, 1936, when the insured attempted to change the beneficiary to the plaintiffs, the contract bore the name of the defendant, Barbara H. Otis, as beneficiary, and by such previous designation the daughter acquired an expectancy in the policy and the funds to become available thereunder, subject, of course, to the reserved right of the insured to replace her as beneficiary. How could the insured, by the terms of the policy, accomplish a change in beneficiary? Only upon written request by the insured to the insurance company, the revocation of the former beneficiary and the designation of the new beneficiary to take effect when endorsement is made by the company upon the policy, and from the facts the daughter has the unquestioned right to insist that the change be accomplished in no other manner. There has been some conflict in the decisions in this State on the question of the vested rights of beneficiaries under policies of life insurance, where the right is reserved to the insured to effect a change without the consent of the beneficiary. The earlier cases on the question held that the beneficiary acquired a vested right which could not be defeated without the beneficiary's consent, notably among them Holder v. Insurance Company, 77 S.C. 299, 57 S.E., 853; Deal v. Deal, 87 S.C. 395, 69 S.E., 886, Ann. Cas., 1912-B, 1142; Taff v. Smith, 114 S.C. 306, 103 S.E., 551, and Brown v. Insurance Company, 114 S.C. 202, 103 S.E., 555, and while these cases have been reversed by subsequent decisions on the question of the vested rights of the beneficiary in the policy, they remain authority and have been repeatedly cited in support of the principle that the designated beneficiary is entitled to insist, in the absence of any fault of his own, that a change of beneficiary be accomplished in the contract method. The daughter does not claim in this case that she acquired a vested right under the policy during the life of her mother, but acknowledges that she acquired an expectancy only, which she claims became vested upon the death of the insured. The rule that in policies of insurance of the kind here involved the beneficiary acquires an expectancy only is fully stated and the contract right of the beneficiary to the protection of that expectancy is announced in Bost v. Volunteer State Life Insurance Company, 114 S.C. 405, 103 S.E., 771; Wannamaker v. Stroman, 167 S.C. 484, 166 S.E., 621; Davis v. Acacia Mutual Insurance Company, 177 S.C. 321, 181 S.E., 12, and others.

In the Wannamaker case, in which the right of the assured to change the beneficiary in a life policy was under consideration, the Court said (page 623):

"It appears concluded by the Bost case, reaffirmed in the Antley case [ Antley v. Ins. Co., 139 S.C. 23, 137 S.E., 199, 60 A.L.R., 184], that, where the right is reserved to the insured to change the beneficiary at his pleasure, the designated beneficiary does not take a vested interest, in the sense of an interest that cannot be divested by some act of the insured; his interest is denominated an 'expectancy'; it is nevertheless an interest which is held subject to the exercise of the right of the insured to change the beneficiary; but no valid reason appears to me why this inchoate interest or expectancy should not be entitled to the protection which the policy gives it, not to be defeated except in the contract method.

"The argument advanced in some of the cases that the provision for a change of the beneficiary with certain solemnities is inserted for the protection of the insurance company alone, and that that protection may be waived by the company, does not appeal to me as sound.

"It is a provision in fact for the mutual protection of the insurance company and the beneficiary, and it does not seem just that the insurance company, if it should see fit to waive its protection, by that act be held to have waived the right of the beneficiary.

"The insured contracts with the beneficiary that the proceeds of the insurance shall be paid to her unless he should conform to the provisions of the policy regulating a change of beneficiary; the insurance company contracts, though the insured, with the beneficiary that the proceeds shall be paid to her unless the insured should in the prescribed method change the beneficiary."

The principles discussed in the Wannamaker case are followed in the United States Courts in interpleader cases filed under the Federal Statute. In Mutual Life Insurance Company of New York v. Patterson, D.C.N.Y., July 30, 1936, 15 F. Supp. 759, it was held (page 760): "Inasmuch as the policy, by its terms, gave to the insured the right to change the beneficiary, Grace Patterson acquired only an expectancy to the proceeds of the policy during the lifetime of the insured, * * * but her right became vested absolutely upon the death of the insured without previous change of beneficiary. * * * Prima facie, Grace Patterson, the duly designated beneficiary in the policy, was entitled to the proceeds of the policy upon filing due proofs of death, and payment to her by plaintiff would have absolved the company from any further claim on the policy."

Undoubtedly the company could insist that there should be a strict compliance with the provisions of the policy in order to make effective a change of beneficiary. Nevertheless, the Courts, in favor of one claiming to have been designated as a beneficiary for valuable consideration, will excuse exact compliance with the provisions of the policy where the attempt at such compliance has been substantial and its full success prevented by some cause not within the control of the person attempting to make the change.,

Continuing, the Court said: "Having notice before the death of the insured that he was attempting to make a change of beneficiary, the (company) properly elected for its own protection not to pay the money to (Grace Patterson) but to await developments. After the claim of the alleged (new) beneficiaries was filed, by bringing all claimants into Court and by paying the total amount for which it can be liable under any contingency on the policy into Court, (the company) waived its right to insist that the conditions precedent to a change of beneficiary should be strictly complied with and has acknowledged the right of recovery on the policy. This waiver and acknowledgment it had a right to make. In so doing, it has not changed the rights of the respective claimants to the fund."

Again reverting to the equitable maxim that equity regards and treats that as done which ought to be done, we note that this doctrine applies in those cases only where the party seeking to invoke it has established a clear obligation based upon a valuable consideration that another do some act which he has failed to perform. Neither the deceased, the Insurance Company, nor the beneficiary designated in the policy owed any affirmative duty in law or equity to the plaintiffs with respect to a change of beneficiary in their behalf. The insured, with clear faculties and entirely rational until the day of her death, acted voluntarily in all she did to effect the change, and for no known purpose beyond that of affection for her sisters. The company did all required of it, and the daughter knew nothing of the intended change. The unfortunate circumstance that the insured died without having completed the transaction merely put to an end what otherwise could at most have been but an incompleted gift in expectancy. The plaintiffs necessarily come within that class denominated in equity as volunteers.

The plaintiffs' rights in equity are commensurate only with the duties imposed upon the insured toward them and there being none established by the evidence this Court is without jurisdiction upon equitable principles to decree an equitable title to the fund in the plaintiffs. When the insured died without having effected a change in the beneficiary, according to the contract method, prima facie, the defendant, Barbara H. Otis (now Griffin), became vested with the legal title to the fund. Equity cannot aid a volunteer, and particularly when to do so would have the necessary effect of defeating a vested legal title. The assured's physical inability to attend to the transaction in person cannot alter the principle, as the will to do (forward the policy) could have been overcome by the voluntary faculties of an active and clear mind by the will not to do. This view is consistent with the evidence, and the fact that none of us can predict with any degree of certainty what course the human mind may take in bringing about or concluding a voluntary transaction, which, when completed, is again subject to revocation by the same token. The field of speculation is too close at hand to give further consideration to this question.

13. I, therefore, conclude that no change of beneficiary was accomplished in the contract method; that the daughter by reason of her designation in the policy is the legal beneficiary; that the plaintiffs have no equitable right or title to the fund, and that equity must follow the law and award the fund to the defendant, Barbara H. Otis Griffin

I, therefore, recommend that the defendant, Philadelphia Life Insurance Company, be authorized and directed to pay the proceeds of said policy of insurance to the defendant, Barbara H. Otis Griffin, in accordance with the policy provisions, and that the defendants have judgment for the cost of this action.