Dissenting Opinion by
Montgomery, J.:I cannot concur in the opinion of the majority because, under either situation, the presence or absence of an agreement to provide a college education to children, it is imperative that the father’s financial ability to provide it be determined. The act1 under which these proceedings were conducted specifically provides that it is only in cases where the person sought to be charged with an order of support is of sufficient ability to pay, that such an order may be made. If this condition applies in cases of statutory liability for support there should be no distinction made and this provision of the act ignored in cases of the voluntary assumption of an obligation for additional educational benefits. The fact that this appellant has a policy of insurance, over which he has full power and in which there is no one else who has any right or interest, does not justify such a distinction being made. There may be many reasons why he is unable to carry out his good intentions and is required to use such a policy for other purposes. No court has the authority to take that asset from him without first determining if he needs it for himself.
*405In Commonwealth v. Martin, 196 Pa. Superior Ct. 355, 175 A. 2d 138, I joined in the concurring opinion of Judge Woodside which stated that regardless of a contractual promise to provide a college education for his children, such an obligation may fall within the ordinary definition of support “when a father has sufficient estate or income to enable him to send his children to college without undue hardship upon him.” Competition in the world today compels children to have more than a high school education if it is possible to secure it. However, in that opinion, emphasis is still placed on the father’s ability to provide such additional education.
In the present case, to take this policy or the proceeds thereof, or to compel appellant to borrow on it for the college needs of the daughter, is taking property from him without due process of law unless he is first given a hearing at which he may be privileged to show fully his ability to provide for same.
I dissent and ivould grant a rehearing in this matter for that purpose.
Rhodes, P. J., joins in this opinion.Act of Juno 24, 1939, P. L. 872, §733, as amended, 18 P.S. 4733.