dissenting:
I look with approval upon the attempts of my colleagues to ground a framework within which, hopefully, our new “certification” statute will operate. I also applaud their efforts to isolate some of the problem areas that we may expect to surface. Yet it is this very helpful discussion that leads me to believe that the majority should not, indeed logically could not, reach the result that it has reached today.
In certifying a question of law to this court, the United States Court of Appeals for the District of Columbia Circuit has stated, on undisputed facts, that “[t]he sole and dispositive issue in this case is whether: (1) as the guardian ad litem for the third child (first child of the second marriage) contends, that child is entitled to the entire balance of the funds on deposit in the District Court’s registry; or (2) as the *1214guardian ad litem for the fourth child (second child of the second marriage, born after the insured’s death) contends, and as the District Court held, the insurance policy warrants reformation to designate the fourth child as a beneficiary, entitled to share equally with the third child the currently undistributed policy proceeds” (emphasis added). Appended to the certification was the Memorandum Opinion of the District Court (Judge Gesell) exercising its equitable power to reform the trust created in the policy to permit the fourth child (Adam) to share one-half the proceeds in the registry in equal share with the third child (Daria, the sister of Adam) so that all four children would share equally (see Appendix A).
Although I will not take issue with the majority’s view that we may exercise our prerogative to frame the issue as we see fit for an informed decision, I fear that the reformation here has resulted in more confusion than help. Thus the majority not only respectfully disagrees with Judge Ge-sell’s analysis and holding as to trust reformation (which sought some comfort from our decision in Read v. Legg, 493 A.2d 1013 (D.C.1985)) but it rephrases the initial inquiry in the ultimate terms of who shall prevail and it embraces a rigid contract theory under which Adam, presumably, could not prevail. Thus it puts aside for the moment the certified question, and lapses into a discussion aimed at showing that there has been no proof by Adam of a mutual mistake justifying contract reform nor has there been proof of substantial compliance (by the deceased father) with change-of-beneficiary requirements. Thereafter, returning to the question that the federal appellate court has asked, the majority recites the strong authority relied upon by Judge Gesell for the proposition that a court may reform a trust to cure an error that prevents the trust from fulfilling the deceased’s intent, or where there are facts and circumstances which could not have been foreseen by the testator and a resulting loss to an intended beneficiary, or to prevent the impairment of the trust’s primary purpose resulting from a change of circumstances unanticipated by the deceased. See Scott on Trusts, § 333.4 (3rd ed. 1967); Probasco v. Clark, 58 Md.App. 683, 687-88, 474 A.2d 221, 223 (1984); Matter of Critchfield Trust, 177 N.J.Super. 258, 426 A.2d 88 (1980). The majority dismisses Judge Gesell’s findings, made pursuant to this authority,1 with the comment that “We see no basis here for application of these equitable principles,” and follows with reasoning that the policy “unambiguously designates” only Daria (and the two other named children by the first marriage) as the contingent beneficiaries — a proposition that no one would dispute.
In support of its position that equitable relief cannot be provided to the child born after the death of an insured, the majority finds persuasive the reasoning of Spry v. Williams, 82 Iowa 61, 47 N.W. 890 (1891). Even if we were to accept the premise, however, that what would not have been available in 1891 as equitable relief would not be available in 1987, the Iowa case is distinguishable for the basic reason that the facts are different. In Spry, there was no showing whatever that the deceased father intended that his unborn child or his widow share the proceeds of $1,702.65 with three children born of his prior liaison with another woman. Thus the Supreme Court of Iowa noted that the deceased had the opportunity to change his certificate to extend its benefits to his widow and unborn child and did not do so, that he knew the situation, and “we should assume that he had reasons for not making the change.” *1215Id. at 64, 47 N.W. at 891. The court noted that the record did not show what property the widow possessed, that it might be abundant for her and her child, who would inherit from her while the deceased’s children by a former marriage would not. “[0]n the face of this record,” said the court in affirming the district court, “[i]f the court should attempt ... to make the conduct of [the deceased] more equitable by creating a new beneficiary, it might defeat that which is absolutely just.” Id. It seems apparent that this holding could not stand for the proposition that a court, under appropriate circumstances, could not reform a trust, albeit in an insurance policy, to carry out the intent of the deceased. It cannot stand for the proposition that a District of Columbia court, making findings of that intent supported by clear and convincing evidence in the record, cannot reform a trust. It cannot stand for the proposition that Judge Gesell, as a matter of law, and on adequate factual findings (see note 1), erred in holding that trust reformation is available to prevent impairment of the trust.2
Finally, the majority, recognizing as it must that we have upheld judgments imposing constructive trusts, suggests merely that there are no grounds here warranting the imposition of a constructive trust — a suggestion made without significant authority. Paradoxically, the majority volunteers that it has no authority to impose such a trust in a certified case but adds that the facts here do not call for this remedy under District of Columbia law. Yet in the case of Hertz v. Klavan, 374 A.2d 871, 873 (D.C.1977) (referred to by the majority only as quoting Justice Cardozo as to the equitable nature of a constructive trust) we upheld a constructive trust imposed by a trial judge, setting aside and canceling a deed (conveying real estate; executed by a widow four months prior to her death. We did so after recognizing that a deed conveying real estate is one of the most solemn instruments known to the law. We rejected the argument of the grantees that only evidence of fraud would be admissible to contradict the terms of the deed. We noted that a constructive trust was a flexible remedial device used to force restitution in order to prevent unjust enrichment, that parol evidence was admissible to show the actual intent of the parties, and that the trial court’s finding that the deceased did not intend permanently to deprive herself of the property was supported by clear and convincing evidence and must be sustained.
Similarly in Gray v. Gray, supra note 2, we again upheld the imposition by a trial judge of a constructive trust on a family home. The trial court held that a daughter of the deceased homeowner, who was the surviving joint tenant on the deed to the home, must be deemed to be a trustee holding the property for the benefit of herself and her eight brothers and sisters. On the basis of evidence showing that the deceased homeowner enjoyed a warm and loving relationship with all nine of her children, and wished that the property remain a family home, the trial court ruled that as a matter of equity, the property belonged solely to the mother and that upon her death the equity passed intestate to all nine surviving children. In affirming, we noted, “[although a constructive trust may be impressed upon property irrespective of the intention of the parties, see Restatement op Restitution § 160, Comment a (1937), evidence that [the mother] intended such an equitable division of the property is a powerful factor favoring the court’s conclusion.” Gray, supra, 412 A.2d at 1211.
In light of this precedent, I do not see how the majority could conclude on the facts of this case that a court, as a matter of law, could neither reform a trust nor impress one. I respectfully dissent.
*1216APPENDIX
In the United States District Court for the District of Columbia
Civil Action No. 85-1075
Penn Mutual Life Insurance Company, Plaintiff, v. Frederick B. Abramson, et al., Defendants.
MEMORANDUM
This is an interpleader action concerning the distribution of the proceeds of a life insurance policy trust fund among four minor children of the deceased. Court-ordered publication has failed to disclose any additional parties in interest. After reviewing extensive memoranda of fact and law filed by counsel appointed to represent the four children and the affidavit of the deceased's trustee, finding no material facts in dispute, the Court determines that further briefing and discovery is not necessary and proceeds to rule on the merits.
The deceased purchased an insurance policy in 1974 after he had divorced his first wife and remarried. At that time he had two children from his first marriage and one from his second marriage. He named his second wife as beneficiary of the entire policy, otherwise one-half the proceeds were to be paid in equal shares to his two children from his first marriage and one-half was to be paid to his daughter from his second marriage. The insurance proceeds were to be administered by a trustee for support, education and welfare of the children until they reached majority. All beneficiaries were designated by name.
In February, 1976 the deceased was murdered by his second wife who five months later gave birth to his fourth child, the second of his second marriage. Since the deceased’s wife is not eligible to receive the proceeds of the policy, this action concerns whether the fourth child should share in the trust fund along with the other three children. The insurer has paid the proceeds of the policy, about $70,000 into the registry of the Court.
Since this is a life insurance policy that establishes a trust fund, the Court is guided by the principles applied by courts in exercising their equitable powers over testamentary wills and trusts. The Court’s principle objective is to, as far as possible, have the trust comply with the intent of the deceased. If his “actual intent” cannot be discerned from the policy or extrinsic evidence, the Court will attribute to the deceased an intent that is most consistent with the available evidence and public policy. See Read v. Legg, 493 A.2d 1013, 1016-17 (D.C.App.1985).
The trustee for the children, a close friend of the deceased, met with the deceased the day before he died. The deceased was excited over the prospect of the birth of his second child and stated he was making plans to provide for all four children, including insurance. The deceased made it obvious to the trustee that he intended to provide for all four children. Statements in the record by the wife of the deceased support the trustee’s view that the deceased intended to provide for his unborn son and would have wanted his son to share equally with the other children in the proceeds of this policy.
A court may reform a trust to cure an error that prevents the trust from fulfilling the deceased’s intent. See Scott on Trusts § 333.4 (3rd ed. 1967); Berman v. Sandler, 379 Mass. 506, 399 N.E.2d 17, (1980); Roos v. Roos, 42 Del.Ch. 40, 203 A.2d 140, 143 (1964). Such reformation is justified where there are facts and circumstances which could not have been foreseen by the testator and a resulting loss to an intended beneficiary. Probasco v. Clark, 58 Md. App. 683, 474 A.2d 221, 223 (1984). The interest of equity allows the court to modify the trust to prevent impairment of the trust's primary purpose resulting from a change of circumstances unanticipated by the deceased. Matter of Critchfield Trust, 177 N.J.Super. 258, 426 A.2d 88 (1980).
Under the circumstances the Court finds that the proceeds of the insurance fund should be held in trust to be shared equally by all four children. It is clear that this father intended to provide for his unborn son, could not have foreseen the tragedy *1217that prevented amending his insurance policy to name the child, resulting in a loss to his intended beneficiary and an inequitable distribution of the fund among his children. The deceased provided for all his children when he executed the policy in 1974 and there is every indication that he would have provided for his fourth child in the same manner. He displayed the generosity normally expected of a father and excluding his son from the benefits given to the other three children would undoubtedly be contrary to his intent. Equity and public policy considerations indicate that the fourth child should be included by reforming the trust to designate him as a beneficiary to share one-half the proceeds of the policy in equal share with the first child of the second marriage so all four children shall share equally.
The Court expressed its appreciation for the learned assistance obtained from counsel appointed to represent the conflicting interests of the potential claimants and suggests that if any counsel seek fees they give consideration to the limited size of the fund and the needs of the beneficiaries. All requests for fees should be submitted to the Court by January 6, 1986.
Accordingly, an appropriate Order is filed contemporaneous with this memorandum.
/s/ Gerhard A. Gesell United States District Judge
December 12, 1985
. Judge Gesell wrote:
It is clear that this father intended to provide for his unborn son, could not have foreseen the tragedy that prevented amending his insurance policy to name the child, resulting in a loss to his intended beneficiary and an inequitable distribution of the fund among his children. The deceased provided for all his children when he executed the policy in 1974 and there is every indication that he would have provided for his fourth child in the same manner. He displayed the generosity normally expected of a father and excluding his son from the benefits given to the other three children would undoubtedly be contrary to his intent.
Appendix A 1215-1216.
. The majority, in its rejection of Judge Gesell’s holding has raised serious problems not only for the certification process, but for the jurisdiction of our own courts to grant equitable relief. We have held in an analogous situation — where our Superior Court has imposed a constructive trust — that we may not set aside the judgment "except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." Gray v. Gray, 412 A.2d 1208, 1210 (D.C.1980), citing D.C.Code § 17-305(a) (1973).