* Application for writ of error pending in Supreme Court. In Cheeves v. Anders, 87 Tex. 287, 28 S.W. 274, 47 Am. St. Rep. 107, it was held to be — *Page 23
"against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being."
In conformity to this principle it was held in Hatch v. Hatch,35 Tex. Civ. App. 373, 80 S.W. 411, that:
"A wife's interest in a policy on her husband's life ceases upon obtaining a decree of divorce."
These rulings make it clear that Carrie B. Shook, when she was divorced from J. O. Shook, ceased as the beneficiary named therein to have an interest in the policy in question here.
In Rowlett v. Mitchell, 52 Tex. Civ. App. 589, 114 S.W. 845, it was held that, in the absence, as was the case here, of fraud on the part of the husband, the wife cannot follow and recover community funds expended by him in premiums on an insurance policy on his life for the benefit of other persons. It is plain, therefore, that Carrie B. Shook was not entitled to recover of plaintiff in error because community funds were used by J. O. Shook before she was divorced from him in paying premiums due on the policy.
As Carrie B. Shook, when she was divorced from J. O. Shook, ceased to have an interest in the policy as the beneficiary named therein, and as she had no right to follow and recover community funds of the marriage used in paying premiums on the policy, it would seem to follow that the recovery had by her executor is wrong. He insists, however, that it was determined by the judgment in the divorce suit that the policy was community property, and that she owned an undivided one-half interest in it. The policy was not specifically mentioned in that judgment. Notwithstanding the holding approved by the Supreme Court in Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 56 L.R.A. 585, that:
"A policy of insurance is not a piece of property; it is the evidence of a contract, the contract being that a certain sum of money will be paid, upon the happening of a certain event, to a particular person named in the policy, or who may be the legal holder thereof"
— it might be conceded that the language in the judgment, adjudging that "all personal property, of whatsoever kind and character," mentioned in the pleadings of the parties, belonged to the community estate between Carrie B. Shook and J. O. Shook, included the policy in question, yet it would not follow that Carrie B. Shook, after she was divorced, owned an undivided one-half or any interest whatever in the policy. Had the policy been taken into account by the commissioners appointed to make the partition between the parties, and it was not, and had the court by his judgment on the report of the commissioners undertaken to vest in Carrie B. Shook title to an interest in the policy, and he did not, she would have ceased to own such interest when the decree, divorcing her from J. O. Shook, became effective. It would be as plainly violative of the public policy of the state to recognize a divorced wife who has ceased to have an insurable interest in her former husband's life, as the owner of an interest in a policy on his life by force of a judgment, as it would be to recognize her ownership of such an interest by force of a transfer thereof to her from him. That she could not be the owner by a transfer was specifically determined in Hatch v. Hatch, cited above.
The judgment will be reversed, and judgment will be here rendered in favor of plaintiff in error.