(specially concurring) .
With the result reached by the writer of the opinion in this ease I have no dispute. It is the true and correct result. Again, I have no dispute concerning the accuracy of the ground upon which the decision is made to rest. However, that part of the opinion with which I cannot rest content is stated by the writer as follows: “But conceding that Or-son was not contractually bound,” etc. This concession I cannot make. It is my judgment that appellant is entitled to the proceeds of the certificates of insurance now deposited in court as a matter of absolute contractual right based upon ample consideration, and that this agreement is valid and enforceable in this-suit. The concrete question raised in this ease is this: Who, and by what right, is entitled in equity to the proceeds of the benefit certificates written on the life of Orson Chaffee? The decree of divorce between Orson and his wife is silent on this question. It was the thought of the trial court in this ease as no mention of this insurance was made in the divorce deeree the rights of all parties, even of the minor child, Wanda, appellant herein, were settled and concluded by that decree. This holding, in my judgment, was clearly erroneous, for that the disposition of the insurance was made in a separate written contract *283between the father and the mother for the benefit of their minor child, Wanda, and it was entirely unnecessary that said separate contract be either mentioned or its contents recited in the divorce decree. Fitch v. Cornell, 1 Sawy. 156, Fed. Cas. No. 4834; Shankland v. Shankland, 301 III. 524,134 N. S. 67; Denier v. Denier, 142 Mich. 316, 105 N. W. 770; Summers v. Summers, 218 Ala. 420, 118 So. 912, and many other cases.
The situation of the parties at the time the contract in question was made was this: The mother of appellant had instituted and was pressing against the father of appellant a suit for divorce and alimony. Out of court, as may be done, a contract was entered into, in writing, between the father and mother of Appellant settling the question of alimony, the custody of their minor child, Wanda, then nine years of age, and maldng provision for the support of their minor child. By this decree this minor child was placed in the custody of the mother. By this agreement, the father, among other things, made his minor daughter the beneficiary in the three certificates of insurance, the proceeds of which are now impounded in court, and, further, agreed to keep the premiums on this insurance paid until his death that the insurance might not lapse. Further, while he had the right as between himself and the insurance company under his contract of insurance to change the beneficiary at his will, he agreed to have his daughter substituted as beneficiary therein and would not, in future, change the beneficiary from his daughter to any other person. Now, in this agreement, the mother, the then beneficiary, consented the daughter might be substituted in her stead. The father consented to this change for the benefit and protection of his daughter, and, further, agreed for her benefit and sure protection in future he would not take from her that further benefit and protection and would not allow it to lapse for failure to pay premiums. That this gave the daughter a vested interest in the insurance is amply attested by the many cases cited in the opinion by Judge LEWIS and need not here be recited. That the love and affection of the father for the minor daughter, and his duty to support or assist in supporting his minor child, was ample consideration to support the contract thus made cannot be successfully contradicted. Thus, in Summers v. Summers, supra, it was held, where the original beneficiary is named pursuant to an agreement, expressed or implied, that he shall be so named, upon some valid consideration moving from him, he acquires an equitable interest in the property which cannot be defeated by a substituted beneficiary having no superior equity. In Shank-land v. Shankland, supra, a contract, made prior to a divorce decree for the wife’s desertion, between the husband and wife for support of a minor son and for her care of the son, in which the husband reserved the right to stop the payments if the son was not kept in proper surroundings, was hold to be based on ample consideration, regardless of the wife’s right to recover alimony. In Denier v. Denier, supra, an agreement between the husband and wife that if the wife will not appeal from a decree of divorce between the parties, the husband will provide her with means for support of their child, is enforceable against the husband, although the decree contains no provision for the support of the child. See many eases cited in the opinion by Judge LEWIS.
That the small amount of alimony, under all the circumstances, allowed the wife was ample consideration to support the contract thus made for the benefit of the daughter, and to deprive the father of the power of exercising the right existing as between himself and the company of again changing the beneficiary from his daughter to his second wife, Grace Chaffee, and the attempt of the father to so do, was a breach of this contract. On all of these grounds it must be, the equities and right of the appellant to the proceeds of the insurance certificates now impounded in court are superior to that of the second wife, Grace Chaffee. On this ground the decree of the trial court must be reversed.