concurring and dissenting.
I respectfully concur with the result that the court reaches in regards to the proceeds of the Metropolitan Insurance policy, *12although disagreeing with the reasoning utilized by the court in reaching that result. I respectfully dissent to both the reasoning and the result reached by the court in respect to the proceeds of the Equitable Insurance policy.
In truth, this court need not overrule Deveroex v. Nelson, 529 S.W.2d 510 (Tex. 1975), in order to accomplish the result the court desires. Entirely consistent with Deveroex, yet allowing the proceeds of both policies to go to Phynies and Flora Crawford, would be to hold that when the “insured” manifests an intention as to a contingent beneficiary by writing in the name of that beneficiary on a policy application, the proceeds are disposed of according to the rule of Deveroex. But, if no intent as to the identity of a contingent beneficiary is made by writing in that name, but disposition is sought in accordance with printed policy terms, then the money would go to the nearest relative. Such a holding in this case would permit the Crawfords to recover, and still preserve the wisdom of adhering to the expressed intent of an insured.
However, the reason for my concurrence with the court as to the disposition of the proceeds of the Metropolitan policy is that under the policy, Phynies and Flora Crawford were entitled to the proceeds in any event. Even though Cornelius Shoaf had secured the policy as a result of his employment with the State of Texas, Sandra Shoaf was the insured. The pre-printed language of the policy provided:
Upon receipt of due proof of your death, while you are insured under the Group Policy, Metropolitan will pay the amount of insurance then in force on your life to the person or persons surviving at the date of your death in the following order of precedence:
First, to the beneficiary or beneficiaries designated by you on a signed and witnessed form received before death in your employing office. For this purpose, a designation change or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.
Second, if there is no designated beneficiary, to your widow or widower. Third, if none of the above, to your child or children and descendants of deceased children by representation. Fourth, if none of the above, to your parents or the survivor of them.
Fifth, if none of the above, to the duly appointed executor or administrator of your estate.
Sixth, if none of the above, to any other kin entitled under the laws of your domicile at the date of your death.
The court of appeals erred in concluding that Cornelius’ son, Cornell, was the contingent beneficiary under the policy. The court of appeals apparently confused beneficiary designation with terms in another part of the policy. Cornell would have qualified as Sandra’s “dependent” under the policy, even though he was her stepson. However, under the life insurance portion of the policy, the clear language states: “Upon receipt of due proof of your death ... your children” will take, “if none ... your parents.” As it was Sandra’s death which was the condition precedent to the payment of the proceeds, and as Sandra had no children (children not being defined under this portion of the policy to include stepchildren), Sandra’s parents were the contingent beneficiaries. The foregoing presents a second alternative, at least in respect to the Metropolitan policy, that would allow the insurance proceeds to go to the Crawfords under article 21.23, but at the same time preserve the rule of Dever-oex.
While I have first suggested an alternative that would allow the court to leave Deveroex intact, and at the same time permit the Crawfords to recover the proceeds of both policies, and, second, a contractual basis for allowing the Crawfords to recover the proceeds of the Metropolitan policy, I nevertheless dissent in respect to the Equitable policy. We are on dangerous grounds when we start altering terms of contracts in order to reach what we perceive to be fair and just results.
*13Under the Equitable policy, Cornelius Shoaf was the “insured” and Sandra was the “insured spouse.” The language of the policy provided that the “beneficiary” of the insured spouse is “the insured, if living; if not living, the surviving children of the insured.” Clearly, Cornell was the surviving child of Cornelius, and under the clear terms of the policy was the contingent beneficiary. In Deveroex, this court held that insurance proceeds were distributed to the nearest relative under article 21.23 only “if all beneficiaries, primary and contingent, are disqualified from receiving such proceeds.” 529 S.W.2d at 513. Texas thereby joined the majority of states in allowing contingent beneficiaries to recover. See Brooks v. Thompson, 521 S.W.2d 563 (Tenn.1975); In Re Kaplans Estate, 49 Misc.2d 335, 267 N.Y.S.2d 345 (1966); Beck v. West Coast Life Insurance Co., 38 Cal.2d 643, 241 P.2d 544 (1952); Neff v. Massachusetts Mutual Insurance Co., 158 Ohio St. 45, 107 N.E.2d 100, 103-04 (1952); Metropolitan Life Insurance Co. v. Wenckus, 244 A.2d 424 (Me.1968); Carter v. Carter, 88 So.2d 153, 160 (Fla.1956); Maneval v. Lutheran Brotherhood, 281 A.2d 502, 504 (Del.Super.1971); Annotations, 27 A.L.R.3d 794 (1969); 1 Appleman, Law of Insurance § 382 (1965).
I recognize today, as this court did in Deveroex, that the application of article 21.23 is difficult. However, I am persuaded by the court’s reasoning in Dever-oex:
‘The language of section 21.23 does not suggest the intention of the legislature to forfeit the right of a guiltless named beneficiary’ (citation omitted). Such construction ... effectuates the essential legislative objective of article 21.23, to provide for the exclusion from the policy proceeds of an individual who is a principal or an accomplice in bringing about the death of an insured. The legislative purpose in writing the second sentence of article 21.23 was merely to exclude the insurance proceeds from the insured’s estate and thereby prevent the murderer from receiving such proceeds as an heir of the decedent’s estate. Greer v. Franklin Life Insurance Co., 148 Tex. 166, 221 S.W.2d 857 (1949).
Id. at 513.
If the Deveroex application of article 21.-23 is difficult, overruling Deveroex can only lead to mischievous and regrettable results. For example, under the new rule that this court lays down, it matters not if the insured designates in his or her own writing the identity of a contingent beneficiary. If the insured meets death by a willful act of the primary beneficiary, then irrespective of the clear intent of the insured that the contingent beneficiary be someone else, the nearest relative will always recover.
Hypothetically, let us assume that we have a person who is insured under a policy of insurance. That person has a child, who has abused, mistreated, stolen from, physically injured, and committed various and sundry other acts of maleficent conduct, against the insured. As proof of all of this, the insured, in a last will and testament, writes off that child as not taking a thin dime, and sets forth the reasons why. Let us further assume that the person’s spouse is the primary insured under the policy and a close friend, niece, nephew, or anyone but the sole child, is designated by writing of the insured as the contingent beneficiary. Nevertheless, under the scenario previously outlined, should the insured’s spouse murder the insured, then under the new rule laid down by this court, the insured’s disinherited child, as the nearest relative, would recover. Surely, the court cannot intend this.
Admittedly, the insured in cases such as the one before us rarely anticipates being feloniously killed by the primary beneficiary. It is difficult to know what the actual intention of the insured would have been had the problem in question been brought to her attention. The record is silent as to Sandra’s relationship with Cornell. It is clear, however, that an alternative beneficiary was provided in the insurance policy, and, in my opinion, the better view is to allow the proceeds to pass according to the alternative provisions of the *14policy rather than go to Sandra Shoaf s nearest relatives.
Lord Justice Pry referred to this concept, stating: “In a word, it appears to me that the crime of one person may prevent that person from the assertion of what would otherwise be a right, and may accelerate or beneficially affect the rights of third persons, but can never prejudice or injuriously affect those rights.” Cleaver v. Mutual Reserve Fund Life Ass’n, 1 Queen’s Bench 147, 160 (1892). Accordingly, I would affirm that portion of the court of appeals’ judgment entitling Cornell to receive the proceeds from the Equitable Life Insurance policy and reverse that portion of the judgment awarding the proceeds of the Metropolitan Life Insurance policy to him.
CAMPBELL, J., joins.