On the facts of this case Special Term was correct in determining that defendant Edna Hunnell, mother .of the insured, remained the legal beneficiary under the policies, no change having been effected by insured prior to his death.
Such finding does not necessarily negate a conclusion, however, that the court could impress a trust on the proceeds of the policies in her hands and hold her accountable to the plaintiff for those proceeds as a constructive trustee.
If, as plaintiff contends, the insured communicated to his mother his desire to make his new wife the beneficiary of the policies and a promise was given by her, either express or implied, to hold any proceeds for the benefit of the wife, it cannot be said as a matter of law that the facts do not warrant the equitable application of a constructive trust. A constructive trust may be found when a party, because of a confidential rela*525tionship, relies on the promise of another which promise is later breached and results in unjust enrichment to the other (Fischer v. Wirth, 38 A D 2d 611; Towner v. Berg, 5 A D 2d 481). While it is necessary to find the existence of a promise to support a constructive trust, especially in a situation as this where plaintiff seeks to acquire legal title which she never possessed, not merely to regain title, the promise may be implied from the circumstances and the nature of the relationship of the parties (Towner v. Berg, supra, pp. 484, 485).
On a motion for summary judgment all the averments of the attacked pleading are, of course, taken as true. Reading the record in a light most favorable to plaintiff, as we must, the elements of constructive trust may be found. If decedent had, in fact, exacted an express or tacit promise from his mother to provide for his new wife in the event of his death with the proceeds of the insurance policies, it is understandable in the circumstances of the case that decedent might have been hesitant to do more.
Mottle and Simons, JJ., concur with Del Vecchio, J.; Marsh, P. J., and Mahoney, J., dissent and vote to reverse the order and deny the motion in an opinion by Marsh, P. J.
Order affirmed without costs.