On Motion for Rehearing
Since handing down the foregoing opinion, we have found by our own research the case of Brown v. Lee, Tex.Sup. 1963, 371 S.W.2d 694, which was not cited by either party in this suit, and which indicates that the legal theory of title to insurance proceeds as expressed in Volunteer State Life Ins. Co. v. Hardin, 1946, 145 Tex.245, 197 S.W.2d 105, 168 A.L.R. 337, and Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, has been altered by virtue of the amendment in 1957 to Article 23(1), Vernon’s Annoted Texas Statutes, enlarging the statutory definition of “property” so-that it now includes “insurance policies and the effects thereof”. In Brown v. Lee, the-Supreme Court holds that where the policy is purchased with community funds such property is in the nature of a chose in action which matures at the death of the insured, and that the proceeds at maturity of the policy are community in character, except where the named beneficiary is in fact, surviving, in which case a gift of the policy rights to such beneficiary is presumed to-have been intended and completed by the death of the insured.
Appellant alleged in her amended pleading that the giving of the proceeds of said policies to appellee would result in a fraud upon appellant and that the naming of appellee as beneficiary in such policies was a legal fraud upon appellant. Appellant also pleaded that the estate of Robert Alexander, Deceased, is insolvent, and that appellant is wholly without funds. In the absence of any exception to such pleading, it is our view that appellant’s pleading is sufficient to raise a genuine issue of material fact as to whether the gift to appellee was fraudulent as to appellant. Appellee’s affidavit is insufficient to establish that she was in fact the putative wife of the deceased. There is nothing to show that the policies were purchased other than with community funds.
Rehearing granted. Reversed and remanded.