Concurring Opinion.
Watkins, J.In my opinion the judgment appealed from should be reversed, because it has been settled by repeated decisions of this court that a policy of life insurance which is taken on the life of a hus - band, payable to his wife as the beneficiary, becomes eo instanti the separate paraphernal property of the wife under her administration and control and which can not be surrendered or assigned by the husband.
But in the course of none of its decisions has this court held that such a policy passed a title to the wife by donation inter vivos, notwithstanding that it has held that it was in a certain sense a gratuity. The court has had no occasion to decide the character of her title; and, indeed, it is necessarily innominate.
The policy is only payable upon the happening of the death of the insured, and is specially conditioned upon the premiums being regularly paid. It must be couceded that the wife has .an insurable interest in the life of her husband, and it has been held to be immaterial by whom premiums are paid.
*1039Thus circumstanced, the policy of insurance possesses no element-of a donation inter vivos, neither in form nor essence.
A life insurance policy made payable to wife, or wife and children-as beneficiary, or beneficiaries, is separate property of the beneficiary and beyond the control of the husband. Pilcher vs. New York Life Ins. Co., 38 An. at p 324 (at bottom); citing Succession of Kugler, 23 An. 455; Succession of Hearing, 26 An. 326; Succession of Clark, 27 An. 269; Succession of Bofenschen, 29 An. 714, p. 325 (at top and in centre of the page) .
In opinion on rehearing by Judge Fenner (pp. 330, 331) is found the following expression, viz.:
“ The gift to her had been fully executed and the resultant interest-was her separate and indefeasible property.” (My italics.)
Again:
“ If such an assignment had been made it wonld have been illegal, null and void, and would not have divested Mrs. Pilcher’s interest in the policy, which would have continued unimpaired as long as thy; policy,” etc,
(P. 331) “ If, as held in Louisiana, in repeated decisions, the' insurance by the husband for the benefit of his wife, is such .a valid-gratuity in her favor as to make her right under the policy at his-death her absolute and separate estate, the like effect logically attaches pro tanto to the valuable interest under the policy,” etc.
In Putnam vs. Insurance Company, 42 An. 739, under circumstances quite similiar to those stated in the Pilcher case, we said:
“In law this policy” — the one in which Mary S. Putnam was: .named as the beneficiary — “inured to her separate, paraphernal benefit; though not separate in property from husband, the insured,, and its character of paraphernal property could not be changed to that of separate property of the husband, nor that of the community without her consent, lawfully obtained. As such it could not be-placed as security for the husband’s debts. To this effect are many authorities” — citing the Pilcher case and the decisions therein cited.
In addition thereto, the opinion cites the following cases, viz.:
Lemon vs. Life Insurance Co., 38 Conn. 294; Barey vs. Bruno, 71 N. Y. 62; Barey vs. Life Insurance Company, 59 N. Y. 587; Dalton vs. Willner, 52 N. Y. 312; Burroughs vs. Life Insurance Co., 97 Mass. 359; Knickerbocker Life Insurance Co. vs. Wiltz, 99 Mass. 159; Life Insurance Co. vs. Burroughs, 34 Conn. 305; Chopin vs. Fellows, 36 Conn. 132; Bliss on Life Insurance, Sec. 348.
*1040In Stuart vs. Sutcliffe, 46 An. 240, the life insurance policy was made payable to the assured, his executors, administrators or assigns, and same was during the life of Wm. Stuart, who bought the policy, assigned to John Klien as collateral security for debt; but while recognizing the validity of that assignment, we drew a distinction between that character of policy and one made payable to the wife, or wife and children of the assured. We quoted with approval the following extract from the> Hearing case, viz.:
If the policy issues to the wife the amount stipulated belongs to her when the event insured against happens, and she can not be forced to inventory it as a part of her husband’s estate. The object he had in view would be defeated if a contrary doctrine prevailed.”
Succession of Hearing, 26 An. 326. The opinion then quotes and affirms the Putnam and Pilcher cases in terms.
In Tutorship of Crane, 47 An. 896, we said:
"It has been settled by repeated decisions of this court that money which is collected after death of the husband or the father, upon a policy of life insurance made payable to his wife and children, is not an asset of the matrimonial community, butof their separate estate,” citing with approval all of the foregoing authorities.
In each of the four cases cited the same principles of law were announced, and have been steadily maintained, and of their absolute correctness, in my opinion, there can be no doubt.
But if their correctness be doubtful, the rule of stare decisis should be maintained, and the rights of the wife and children protected against the creditors of impecunious fathers and hnsbands.
For these additional reasons I concur in the opinion of the majority.