Mr. Justice Hill
delivered the opinion of the court.
This action was instituted by the plaintiff in error to recover $5,000 with interest,, being the amount alleged to be due her upon an insurance policy issued by the defendant company upon the life of Samuel L. Rumsey, who departed this life at Los Angeles, California, on the 27th day of July, 1910, at which time it is alleged that the plaintiff in error was the beneficiary of this policy by virtue of a change in the beneficiary made on or about the 10th day of June, 1907. The answer, among other things, denies that any change of beneficiary had ever been made, and that the defendant is liable to a suit by the original beneficiary. Trial was to the court. At the close of the plaintiff’s case a motion for non-suit was sustained.
The policy states it was issued upon the life of Samuel L. Rumsey, the insured, of Honolulu, etc., and was to take effect June 11th, 1903. The beneficiary therein named was Benson, Smith & Company, Limited, or its legal representatives. The clause pertaining to a change' of beneficiary reads:
“The Insured, having reserved the right, may change the Beneficiary, or Beneficiaries, at any time during the [73]*73continuance of this Policy, by written notice to the Company at the Home Office, provided this Policy is not then assigned.' The Insured may, at any time, by written notice to the Company at the Home Office, declare any Beneficiary then named to be an Absolute Beneficiary under this Policy. No designation, or change of Beneficiary, or declaration of an Absolute Beneficiary, shall take effect until endorsed on this Policy, by the Company at the Home Office. During the life-time of an Absolute Beneficiary the right to revoke or change the interest of that Beneficiary will not exist in the Insured. If any Beneficiary or Absolute Beneficiary dies before the Insured, the interest of such Beneficiary will become payable to the Executors, Administrators or Assigns of the Insured.”
There also appears in-or on the policy the following:
“REGISTER OF CHANGE OF BENEFICIARY. NOTE. — No notice of Change of Beneficiary or declaration of the Absolute Beneficiary shall take effect until endorsed on this Policy by the Company át the Home Office.”
If we understand plaintiff’s counsel' correctly, they urge three reasons why a non-suit- should not have been granted: First, because the evidence establishes that a change of beneficiary had been made substantially as the policy requires. An insurance policy, like any other written instrument, is to be considered as a whole. The parts concerning the change of beneficiary must.be likewise thus considered. That portion which provides that no change shall take effect until endorsed on the policy, by the company, at the Home Office, is entitled' to the same consideration as any other portion pertaining to such change. It stands admitted that no change of beneficiary was ever endorsed on this policy, by the company, at the Home Office, or elsewhere, and that it was never presented to the company at its Home Office, or elsewhere, for this purpose. It therefore follows that there had not been a change, of beneficiary perfected and fully completed in the manner provided by the policy..
[74]*74Second, it is claimed that a change of beneficiary had been made as provided in the policy, with the exception of its endorsement on the policy at the Home Office; that this requirement is solely for the protection of the company; that the company has waived it, hence, no former beneficiary or other person has any right to complain. Defendant’s counsel challenge the correctness of the assumption that the clause in the policy providing that no change of beneficiary shall take effect until endorsed on the policy, by the company, at the Home Office, is inserted solely for the protection of the company, or that it can waive it without the consent of the then designated beneficiary, so as to affect the right of such beneficiary. They call our attention to the opinions of this court in Johnson v. New York Life Co., 56 Colo. 178, 138 Pac. 414; Finnell v. Franklin, 55 Colo. 156, 134 Pac. 122, and Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254, 25 Am. St. 260, in which they claim it is held, in substance, that the beneficiary of an insurance policy, which allows a change of beneficiary, has a contingent vested right in the policy, which is subject to be divested only in accordance with the provisions of the contract, for which reason,'they urge, it being admitted that no endorsement of.such change was ever made upon the policy, that even though it were held that the company had waived this provision, it would avail nothing as against the rights of the original beneficiary. They contend further that the proof does not sustain the assumption that the company ever waived this provision. If correct in their second contention, it is unnecessary to consider the first.
The evidence concerning the change of beneficiary and the alleged waiver by the company consists of the written instrument calling for the change and certain correspondence between counsel for the plaintiff, who was also counsel for the insured, and the insurance company. This correspondence extended over a period of about three years. It would accomplish no good purpose to insert it in an opinion. [75]*75A careful study of it leads to no other conclusion than that it fails to disclose any waiver by the company, but, to the contrary, it discloses that the company, at all times, insisted that this requirement be complied with. If the question of waiver involved the keeping of the policy alive upon account of the alleged tender and receipt by the company of the payment of one premium by counsel, it would then present an entirely different aspect and a large number of bases cited by plaintiff would be in point.
The third reason urged why the non-suit was wrong seeks to invoke the equitable rule of substitution. The difficulty with counsel’s position in this respect is not in the rule which is generally recognized and frequently applied, but in its application under the record as here presented. It is urged that the insured in good faith attempted to secure the policy in order to have the change of beneficiary endorsed as provided therein, but was wrongfully denied possession by Benson, Smith & Company, and thereby prevented from so doing by circumstances over which he had no control, for which reason equity should step in and treat the substitution as complete. To sustain this1 contention we would have to hold that the policy had been wrongfully withheld from the insured by Benson, Smith & Company, and for that reason the substitution should be treated as complete. This includes a finding that in equity Benson, Smith & Company had ceased to be the beneficiary, and this without their being made a party to the action. It stands admitted by the pleadings that the policy is in their possession and that they were and are designated in it as the beneficiary. Under such circumstances we do not think that their equities in the matter, and their right as a beneficiary, can be determined under the equitable rule of substitution in an action to which they are not a party. This identical question was passed upon in Mahr v. N. U. F. Insurance Society, 127 N. Y. 452, 28 N. E. 391, where the plaintiff brought his action as the equitable owner of a fire insur[76]*76anee policy.
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Mr. Justice Hill
delivered the opinion of the court.
This action was instituted by the plaintiff in error to recover $5,000 with interest,, being the amount alleged to be due her upon an insurance policy issued by the defendant company upon the life of Samuel L. Rumsey, who departed this life at Los Angeles, California, on the 27th day of July, 1910, at which time it is alleged that the plaintiff in error was the beneficiary of this policy by virtue of a change in the beneficiary made on or about the 10th day of June, 1907. The answer, among other things, denies that any change of beneficiary had ever been made, and that the defendant is liable to a suit by the original beneficiary. Trial was to the court. At the close of the plaintiff’s case a motion for non-suit was sustained.
The policy states it was issued upon the life of Samuel L. Rumsey, the insured, of Honolulu, etc., and was to take effect June 11th, 1903. The beneficiary therein named was Benson, Smith & Company, Limited, or its legal representatives. The clause pertaining to a change' of beneficiary reads:
“The Insured, having reserved the right, may change the Beneficiary, or Beneficiaries, at any time during the [73]*73continuance of this Policy, by written notice to the Company at the Home Office, provided this Policy is not then assigned.' The Insured may, at any time, by written notice to the Company at the Home Office, declare any Beneficiary then named to be an Absolute Beneficiary under this Policy. No designation, or change of Beneficiary, or declaration of an Absolute Beneficiary, shall take effect until endorsed on this Policy, by the Company at the Home Office. During the life-time of an Absolute Beneficiary the right to revoke or change the interest of that Beneficiary will not exist in the Insured. If any Beneficiary or Absolute Beneficiary dies before the Insured, the interest of such Beneficiary will become payable to the Executors, Administrators or Assigns of the Insured.”
There also appears in-or on the policy the following:
“REGISTER OF CHANGE OF BENEFICIARY. NOTE. — No notice of Change of Beneficiary or declaration of the Absolute Beneficiary shall take effect until endorsed on this Policy by the Company át the Home Office.”
If we understand plaintiff’s counsel' correctly, they urge three reasons why a non-suit- should not have been granted: First, because the evidence establishes that a change of beneficiary had been made substantially as the policy requires. An insurance policy, like any other written instrument, is to be considered as a whole. The parts concerning the change of beneficiary must.be likewise thus considered. That portion which provides that no change shall take effect until endorsed on the policy, by the company, at the Home Office, is entitled' to the same consideration as any other portion pertaining to such change. It stands admitted that no change of beneficiary was ever endorsed on this policy, by the company, at the Home Office, or elsewhere, and that it was never presented to the company at its Home Office, or elsewhere, for this purpose. It therefore follows that there had not been a change, of beneficiary perfected and fully completed in the manner provided by the policy..
[74]*74Second, it is claimed that a change of beneficiary had been made as provided in the policy, with the exception of its endorsement on the policy at the Home Office; that this requirement is solely for the protection of the company; that the company has waived it, hence, no former beneficiary or other person has any right to complain. Defendant’s counsel challenge the correctness of the assumption that the clause in the policy providing that no change of beneficiary shall take effect until endorsed on the policy, by the company, at the Home Office, is inserted solely for the protection of the company, or that it can waive it without the consent of the then designated beneficiary, so as to affect the right of such beneficiary. They call our attention to the opinions of this court in Johnson v. New York Life Co., 56 Colo. 178, 138 Pac. 414; Finnell v. Franklin, 55 Colo. 156, 134 Pac. 122, and Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254, 25 Am. St. 260, in which they claim it is held, in substance, that the beneficiary of an insurance policy, which allows a change of beneficiary, has a contingent vested right in the policy, which is subject to be divested only in accordance with the provisions of the contract, for which reason,'they urge, it being admitted that no endorsement of.such change was ever made upon the policy, that even though it were held that the company had waived this provision, it would avail nothing as against the rights of the original beneficiary. They contend further that the proof does not sustain the assumption that the company ever waived this provision. If correct in their second contention, it is unnecessary to consider the first.
The evidence concerning the change of beneficiary and the alleged waiver by the company consists of the written instrument calling for the change and certain correspondence between counsel for the plaintiff, who was also counsel for the insured, and the insurance company. This correspondence extended over a period of about three years. It would accomplish no good purpose to insert it in an opinion. [75]*75A careful study of it leads to no other conclusion than that it fails to disclose any waiver by the company, but, to the contrary, it discloses that the company, at all times, insisted that this requirement be complied with. If the question of waiver involved the keeping of the policy alive upon account of the alleged tender and receipt by the company of the payment of one premium by counsel, it would then present an entirely different aspect and a large number of bases cited by plaintiff would be in point.
The third reason urged why the non-suit was wrong seeks to invoke the equitable rule of substitution. The difficulty with counsel’s position in this respect is not in the rule which is generally recognized and frequently applied, but in its application under the record as here presented. It is urged that the insured in good faith attempted to secure the policy in order to have the change of beneficiary endorsed as provided therein, but was wrongfully denied possession by Benson, Smith & Company, and thereby prevented from so doing by circumstances over which he had no control, for which reason equity should step in and treat the substitution as complete. To sustain this1 contention we would have to hold that the policy had been wrongfully withheld from the insured by Benson, Smith & Company, and for that reason the substitution should be treated as complete. This includes a finding that in equity Benson, Smith & Company had ceased to be the beneficiary, and this without their being made a party to the action. It stands admitted by the pleadings that the policy is in their possession and that they were and are designated in it as the beneficiary. Under such circumstances we do not think that their equities in the matter, and their right as a beneficiary, can be determined under the equitable rule of substitution in an action to which they are not a party. This identical question was passed upon in Mahr v. N. U. F. Insurance Society, 127 N. Y. 452, 28 N. E. 391, where the plaintiff brought his action as the equitable owner of a fire insur[76]*76anee policy. The company plead a defect of parties defendant in that Kelly, of Iowa, who had possession of the policy under an assignment, had not been joined. The court sustained this contention. The claim was made there, as here, that it was impossible to bring him into that court. In answer the court said: “The object of the action was to establish the equitable title of the plaintiff to the policy, etc. The company should not be required to pay the entire amount of the policy both to the plaintiff and to Kelly, or, without fault on its part, be placed in a position where it would run any reasonable risk of being compelled to make a double payment, etc. The general rule in equity requires that the persons interested in the subject of the action should be made parties, etc.; not only all persons whose rights may be affected by the judgment should be brought into court, but all those whose presence is essential to the protection of any party to the action, etc.; where there are conflicting claimants to the same obligation, each insisting upon it as exclusively his own, all should be made parties before the question of title is determined by a court of equity in favor of either against the one from whom the obligation is due. Otherwise payment or performance may be exacted as many times as there are separate claimants.” We think this equitable rule is specially applicable here, for the reason that so far as the equities of the plaintiff are concerned, they depend upon the wrongful detention of the policy by Benson, Smith & Company. In this the insurance company can have no particular interest. It is not claimed that the policy was not in force at the time of the death of Mr. Rumsey. Ordinarily it is immaterial to an insurance company to whom the policy is paid, and such would appear to be the facts here, but they do have an interest in not being placed in a position where they might be required to pay the amount of the policy to both claimants where the rights of the plaintiff are equitable. It follows that the presence-of Benson, Smith & Company is essential to the [77]*77protection of the insurance company. The plaintiff did not make them a party, and when the question was properly presented by answer she did not then ask that they be brought in as provided by the Code. The court did not, of its own motion,- make such an order, evidently for the reason which appears to be conceded, that they were residents of Honolulu, and jurisdiction over them could not be secured except by their consent, and there is nothing to disclose that the plaintiff sought to secure it, but the fact of their being nonresidents does not change the rule. As stated, in substance, in the New York case, supra, “the burden is on the plaintiff to secure the presence of such persons in the court of his selection,” otherwise if'he cannot do this, we see no alternative for him than that he bring a suit in a court which will have jurisdiction over them. This equitable rule seems to be recognized in New York Life Insurance Company v. Smith, 67 Fed. 694, relied upon by plaintiff as holding differently in an action at law. We have no criticism as to the ruling in that case, but do not think it applicable to the facts here. The trial court heard the plaintiff upon her law case, as did the Federal Court in the Smith case, in which no equities were involved. The conclusions here reached do not prohibit the plaintiff from instituting an action against Benson, Smith & Company and the insurance company in order to have the rights of both alleged' beneficiaries determined and the insurance paid to whomsoever is entitled to it.
' Counsel make the further contention that Benson, Smith & Company had no insurable interest in the life of the insured, and that it is against public policy to allow them, or it, as the case may be, to become the owner of insurance on his life. They have cited numerous authorities upon this subject. There is no such an issue involved in this case,' and certainly it could ttot be decided in an action to :which Benson, Smith & Company were not a party.
In view of further litigation over the proceeds of this [78]*78policy; we deem' it proper.to state as this trial took place before Rule IX of this court concerning non-suits became effective, that this action does not come under this rule. •
The judgment is affirmed.
Affirmed.
Decision en banc.
Mr. Justice Scott dissents.
Mr. Justice Teller not participating.