RIVES, Circuit Judge.
Metropolitan Life Insurance Company filed a bill of interpleader to determine whether appellant, Martha Maud Kemp, or appellees, Natalie Kemp Baker and Mary Lou Smith, were entitled to all or any part of the proceeds of an insurance policy issued on the life of George G. Kemp, deceased. The proceeds of the policy, $12,638.14, were paid into court and the insurance company discharged. The case here, as it was in the trial court, is solely between the other appellees, who were sisters of the insured, named in the policy as beneficiaries, and hereinafter sometimes referred to as the appellees, and the appellant, who was the widow of the insured. It is the contention of the appellant that the insurance policy was community property and that the naming of her husband's sisters as beneficiaries constituted a gift by her deceased husband in fraud of her rights. The case was tried to the court without a jury and judgment for the entire proceeds of the policy was entered for the appellees.
There is no material dispute in the evidence. Most of the facts were stipulated and only two witnesses testified, Mrs. Martha Maud Kemp, the widow, and Mrs. Laura Savage, one of her friends. The insurance proceeds came from a certificate issued under an Annuities and Insurance Plan of Magnolia Petroleum Company. George G. Kemp was employed by Magnolia Petroleum Company February 15, 1919, and continued in such employment until the date of his retirement on January 1, 1952. He died intestate on July 3, 1952. The date of Mr. Kemp's entry into the Magnolia Petroleum Company's Annuities & Insurance Plan was March 1, 1931, when that plan was established. He and the appellant were married on the 29th day of September, 1942, and lived together as husband and wife in Wichita County, Texas, until his death. There were no children.
While Mr. Kemp had entered into the Annuities & Insurance Plan on March 1, 1931, the certificate in question, numbered 6498, was issued by Metropolitan Life Insurance Company on January 1, 1940, and in that certificate George G. Kemp reserved the right to change the beneficiary. Mrs. Willie Kemp, mother of George G. Kemp, originally was named beneficiary. On April 1, 1943, about six months after the marriage, George G. Kemp changed the beneficiary in said certificate to his wife,
The community estate and the financial condition of George G. Kemp and his wife, Martha Maud Kemp, at the time of the husband's death may be briefly described in this paragraph. George G. Kemp left one other policy of life insurance with Southland Life Insurance Company in the original face amount of $2,500.00, against which he had borrowed in his lifetime approximately $500.00. This policy was payable in three annual interest installments of $46.19, each payable July 22, 1953, 1954 and 1955, and twenty-five monthly installments of $73.90 each, commencing August 22, 1955, with a final and 26th installment of $44.34. The installments were payable to the widow, Martha Maud Kemp, and in the event of her death prior to receiving the full number of installments, the remaining installments were payable to one of the sisters, Natalie Kemp Baker. Both policies of insurance were procured by George G. Kemp prior to his marriage and until the time of his marriage the premiums on both were paid out of his separate estate and thereafter were paid from the community income. George G. Kemp left no separate estate, but left as community property cash on hand and in banks in the amount of $3,143.47, against which the widow asserts claims on account of advancements of her separate funds in the amount of $1,320.00. He left as community property the home in which he and Martha Maud Kemp lived at Burkburnett, Texas, consisting of a five room cottage located upon approximately one-half acre of land together with the furnishings. The purchase price of the house and lot had been $3,000.00. A part of the lot had been sold off and the widow testified that the house had become old and in bad condition, but that she supposed she could get $4,000.00 or $5,000.00 for the property. There was no other testimony as to its value. The widow, Martha Maud Kemp, had possession of a 1950 Pontiac automobile which she claimed as her separate property. George G. Kemp owed no debts at the time of his death, except for current bills in the sum of approximately $400.00. His funeral expenses amounting to $1,283.75 remain unpaid.
The widow, Martha Maud Kemp, undertook to testify to what George G. Kemp had said to her at the time he changed the beneficiary from his mother to her on April 1, 1943. The court sustained an objection to this testimony as hearsay and as prohibited under the statute, Article 3716, Rev. Civ.Statutes of Texas.
The other witness, Mrs. Laura Savage, testified that she was present at the Kemp home after Mr. Kemp's death when the policy of insurance was found, and it was discovered that the beneficiary had been changed from the widow to the sisters. She was asked whether she had any discussion with Mr. Kemp with reference to insurance policies at anytime in the earlier part of 1952, and further "Did you know whether or not Mr. Kemp had given this policy to his wife?" The court sustained objections to each of these questions and those rulings are also assigned as error.
It is now settled that a policy of life insurance is regarded in Texas as property.
The appellant insists that when the insured, after his marriage, changed the beneficiary to his wife, he made a gift of this insurance policy, if not to the wife's separate estate, at least to the community estate. The husband could make a parol gift of such a policy, even though as to the insurance company he failed formally to relinquish his right to change the beneficiary. Aaron v. Aaron, Tex.Civ.App., 173 S.W.2d 310, 313. Such failure, however, made his action ambiguous as to whether
Was the testimony as to statements made by the insured admissible to explain his action and to help solve that ambiguity? Such statements could have been without the hearsay rule either because a part of the transaction itself or as admissions against interest. In a case similar to the present case on its facts, Aaron v. Aaron, supra, the wife was permitted without objection to testify that the husband stated, "that he was making them (the two policies of life insurance) a gift to the community estate so we could both enjoy them."
Were such statements of the insured inadmissible and prohibited by the statute, Article 3716, Revised Civil Statutes of Texas, Footnote 1, supra? As to her one-half of the community property, the surviving widow is not an heir of her husband, Briggs v. McBride, Tex.Civ.App., 190 S.W. 1123, 1125. Nor would the designated beneficiaries under the policy have taken as heirs or legal representatives of the deceased. This action was not brought by the administrator as was the suit in International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040. It is true, however, that the widow's answer and claim set forth "that not only does she own an undivided one-half interest in the policy, but, under the laws of inheritance, she is entitled to all of the community assets of herself and her deceased husband; * *." If the widow might be entitled to recover in a dual capacity, either in her own right as a community survivor or as the sole heir of her husband, and if the interests sought to be recovered on such theories are not severable, then, the testimony being inadmissible in her behalf as an heir of her husband it might have to be excluded altogether. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867, 868; Connecticut General Life Ins. Co. v. Banderbee, Tex.Civ.App., 82 S.W.2d 764, 766.
Under our Rules of Civil Procedure, 28 U.S.C.A., however, the case is to be tried on the proofs rather than on the pleadings. De Loach v. Crowley's, Inc., 5 Cir., 128 F.2d 378, 380. For reasons to be presently stated, we think that the widow could in no event recover as an heir, but could recover, if at all, only the interest which she may have owned and of which her husband may have made a fraudulent gift. That was not clear in 1940 when Professor Huie wrote the article, "Community Property Laws as Applied to Life Insurance", 17 Texas Law Review 121, et seq., 18 Texas Law Review 121 et seq. Professor Huie pointed out that in a suit by the widow against the donee, after the death of the husband, the rule in California was that the wife might recover only her one-half of the property donated (18 Texas Law Review 135, citing Dargie v. Patterson, 176 Cal. 714, 169 P. 360; and numerous other California decisions), but that in Washington the entire gift might be invalidated (18 Texas Law Review 136, citing Occidental Life Ins. Co. v. Powers, 192 Wn. 475, 74 P.2d 27, 114 A.L.R. 531; Comment 13 Wash.Law Review 321). Professor Huie pointed out that there was authority in Texas for either position; for the theory that the entire proceeds fell into the community and that the wife was entitled to them as a survivor, there being no children, citing Moore v. California-Western States Life Ins. Co., Tex.Civ.App., 67 S.W.2d 932; and for permitting the wife to recover only her one-half of the donated property when she attacked the husband's gift after the dissolution of the marriage, citing Gutheridge v. Gutheridge, Tex.Civ. App., 161 S.W. 892; Motor Finance Company v. Younger, Tex.Civ.App., 71 S.W.2d 948; cf. Gardenhire v. Gardenhire, Tex. Civ.App., 172 S.W. 726. In the case of Aaron v. Aaron, 173 S.W.2d 310, 315, decided after Professor Huie's article was written, the Court of Civil Appeals of Texas, Texarkana, said:
We conclude, therefore, that in no event could the widow recover in her capacity as an heir of her husband. The insured's statements to his wife were admissible to explain his action and to help solve the ambiguity as to the alleged gift.
A fortiori, the District Court erred in refusing to admit testimony from the witness, Mrs. Laura Savage, as to statements made by the insured to or in her presence concerning the policy in question and her testimony as to whether or not the insured stated to her that he had given this policy to his wife or to the community estate. See Cox v. McClave, Tex.Civ.App., 22 S.W.2d 961, 963; Krenz v. Strohmeir, Tex. Civ.App., 177 S.W. 178, 180.
The appellees insist that any gift of the policy of insurance to the wife or to the community estate would be inconsistent with the terms of the policy itself providing for the payment of retirement benefits to the insured employee and the consequent reduction of the amount of life insurance.
Even so, according to the insistence of the appellees the husband had the right to control and dispose of the community property without the consent of the wife. "During coverture the common property of the husband and wife may be disposed of by the husband only; * * *." Sec. 1 of Article 4619, Rev.Civil Statutes of Texas, 1925, quoted in Footnote 3, supra. Pursuant to that principle, the Texas Supreme Court has declared that,
The appellant concedes that principle, but insists that the facts in this case show a course of conduct designed to defraud the wife. Both parties concede the validity of the principle announced in a very early decision of the Supreme Court of Texas, Stramler v. Coe, 15 Tex. 211, 215, that,
Naming a third person, to whom no obligation is owed, as beneficiary and paying the premiums with community funds amounts to a gift of the community property, Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904, 905; 1 de Funiak, Principles of Community Property, Sec. 79, p. 214, Sec. 123, p. 353; Speer, Law of Marital Rights in Texas, Sec. 150, pp. 203, 204, Notes 11, 12. There is no consistency in saying that the wife is entitled to one-half the community property and at the same time that the husband may give away such property without restriction, and consequently in all community property jurisdictions some restrictions are imposed on the power of the husband to give away the common property. 1 de Funiak, Principles of Community Property, Secs. 121 and 122. Apparently Texas recognizes the right of the husband to make moderate gifts for just causes, but excessive or capricious gifts made with intent to defraud the wife are void or at least voidable upon her insistence. The principle as applied to insurance policies is well stated in 1 de Funiak, Principles of Community Property, Sec. 123, p. 354:
Citing, Jones v. Jones, Tex.Civ.App., 146 S.W. 265; Rowlett v. Mitchell, 52 Tex.Civ. App. 589, 114 S.W. 845; Moore v. California-Western States Life Ins. Co., Tex. Civ.App., 67 S.W.2d 932.
Indeed, appellees' counsel frankly and commendably concede that "though the statute (Sec. 1 of Article 4619, Rev.Civil Statutes of Texas, 1925, quoted in Footnote 3, supra) makes no exception as to dispositions of community property in fraud of the wife, it is clearly a proper and fixed rule that the power to control the community is limited in this respect."
Article 3996, Rev.Civil Statutes of Texas, provides that, "Every gift, conveyance, assignment, or transfer of, or charge upon, any estate real or personal, * * * given with intent to delay, hinder or defraud creditors, purchasers, or other persons of or from what they are, or may be, lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void." In interpreting that article, the Supreme Court of Texas in Biccochi v. Casey-Swasey, 91 Tex. 259, 42 S.W. 963, 964, said:
We think that the District Judge and appellees' counsel overlooked the distinction between conveyances made for a valuable consideration and voluntary conveyances made without consideration or for inadequate consideration. Such voluntary conveyances are at least prima facie or presumptively fraudulent as to existing creditors. 24 Am.Jur., Fraudulent Conveyances, Sec. 26; Dixon v. Sanderson, 72 Tex. 359, 10 S.W. 535. As said in a case where an insolvent grantor sold property to an old friend for about one-third of its value:
Again in Speer, Law of Marital Rights in Texas, 3rd ed., Sec. 150, p. 203, it is said:
In Huie, Community Property Laws as Applied to Life Insurance, 18 Texas Law Review 131, it was said:
In the case of a disposition of community property in fraud of the wife's rights, the wife has a right of recourse, first against the property of the husband, and, if resort to the husband's estate proves unavailing, then, against the person to whom the property has been conveyed or transferred. 1 de Funiak, Principles of Community Property, Sec. 126, pp. 362 and 363; Dixon v. Sanderson, supra. In Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105, 106, 168 A.L.R. 337, the Court said in part: "* * * the record does not disclose the amount of his [the husband's] estate nor who were the beneficiaries thereof." Again in that case, the Court expressly pretermitted consideration of a case where there were not sufficient other assets to compensate the son claiming the deceased wife's share of the community estate, because he had made no showing that he had not received his full share of the estate. 197 S.W.2d at page
There remains for consideration the extent of the wife's possible recovery. In a somewhat similar case, Aaron v. Aaron, Tex.Civ.App., 173 S.W.2d 310, the wife was permitted to recover one-half of the proceeds of the policy. If the policy were a part of the community estate and the wife had predeceased her husband, her heirs or those claiming through her might have been limited to reimbursement out of the cash surrender value of the policy at the time of the wife's death rather than its proceeds upon the death of the insured. Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105, 107; See Martin v. McAllister, 94 Tex. 567, 63 S.W. 624. The wife, however, is not restricted to her interest in the premiums paid from the community estate for the policy inasmuch as she has the same interest in the profits made by her husband's trade as she has in the consideration paid. Martin v. Moran, supra; Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307; Huie, Community Property Laws as Applied to Life Insurance, 17 Texas Law Review, 121, 122, 129. The amount of any possible recovery by the wife necessarily depends upon testimony not in the present record as to whether the husband made any gift of the policy and whether any such gift was to the wife separately or to the community estate. See 1 de Funiak, Principles of Community Property, Sec. 79, p. 213, Sec. 123, p. 356. Those questions can be determined by the District Court only upon a consideration of all of the evidence legally admissible, and we, therefore, forego any further discussion. The judgment is reversed for further proceedings consistent with this opinion.
Reversed and remanded.
"In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transactions with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."
"It is true that in the early decisions of the courts of this country, including the decisions of the courts of this State, it was held in some of them that policies of life insurance were not property. The history of Article 4619, as amended, clearly shows that the Legislature intended to give the term `community property' a broader meaning than it was originally given. Many of the modern decisions hold that a life insurance policy is property. In the case of Grigsby v. Russell, 222 U.S. 149, 32 S.Ct. 58, 59, 56 L. Ed. 133, 36 L.R.A.,N.S., 642, Ann.Cas. 1913B, 863, Mr. Justice Holmes, speaking for the Supreme Court of the United States, said: `Life insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property.'" See also, Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962; Annotations 114 A.L.R. 545, 168 A.L.R. 342; 1 de Funiak, Principles of Community Property, Secs. 79 and 123; Huie, Community Property Laws as Applied to Insurance, 17 Tex.Law Review 121, 129; Cf. Speer, Law of Marital Rights in Texas, Sec. 373, based on decisions earlier than Womack v. Womack, supra.
"Property deemed common property; disposition; disappearance of husband
"Sec. 1. All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. During coverture the common property of the husband and wife may be disposed of by the husband only; * * *."
See also, 1 de Funiak, Principles of Community Property, Sec. 63; Huie, Community Property Laws as Applied to Insurance, 17 Texas Law Review, 146 et seq.
"While Texas does not have the statutory restrictions on gifts which are to be found in the Louisiana Civil Code, Texas does place some limitations on the husband's power to make gifts of community property. As we said of Texas community property in Hopkins v. Bacon, 282 U.S. 122, 126, 51 S.Ct. 62, 63, 75 L.Ed. 249, the authorities hold `that if the husband, as agent of the community, acts in fraud of the wife's rights, she is not without remedy in the courts. (Stramler v. Coe, 15 Tex. 211; Martin v. Moran, 11 Tex. Civ.App. 509, 32 S.W. 904; Watson v. Harris, 61 Tex.Civ.App. 263, 130 S.W. 237; Davis v. Davis, Tex.Civ.App., 186 S.W. 775.)' Appellee also concedes that `excessive and capricious donations are void,' and that malicious or fraudulent intent need not be established in order that the wife shall have the remedies referred to. Appellee does not question that these are the rules generally applicable to community property in Texas."