(dissenting).
I disagree with that part of the Court’s opinion which permits Zan Nelson, the adopted son of the insured, to recover all of the proceeds of the First Financial policy as a secondary beneficiary instead of sharing the proceeds equally with Edwin Nelson, the insured’s natural son, as nearest relatives of the insured in accordance with Article 21.23 of the Texas Insurance Code.
The holding is contrary to the plain words of both the insurance policy and the statute. The insurance contract provides that the secondary beneficiary shall receive the proceeds only if the primary beneficiary (Helen Nelson) is not living. However, Helen Nelson is still living. The policy is silent as to who shall take thereunder if the primary beneficiary is living but disqualified because she wilfully killed her insured husband. Article 21.23, however, contains a specific provision for payment of insurance proceeds under such circumstances. It reads:
The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive said insurance.
The above article is as much a part of the insurance contract as if it had been incorporated in the policy. Camden Fire Ins. Ass’n v. Harold E. Clayton & Co., 117 Tex. 414, 6 S.W.2d 1029 (1928). The rights of parties to contract with respect to insurance are limited by state laws which are a part of every contract. Scanlan v. Home Ins. Co., 79 S.W.2d 186 (Tex.Civ.App., 1935, writ ref.); Hamaker v. American States Ins. Co. of Texas, 493 S.W.2d 893 (Tex.Civ.App., 1973, writ ref. n. r. e.).
In the absence of a statute to the contrary, one Texas decision cited by the majority1 and several from other states have permitted recovery by a secondary beneficiary while a disqualified primary beneficiary was still living. 27 A.L.R.3d 794, 835-837. None of these cases involved a statute such as Article 21.23, and I have found no decision, and none has been cited, in which a court has heretofore permitted insurance proceeds to go either to a secondary beneficiary or to the insured’s estate when a statute directs payment to the nearest relatives.
Two Texas cases have dealt with Article 21.23 and applied its terms when contrary to those in the insurance policies. In Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949), this Court related some of the history of the statute; held that it did not violate the constitutional provision forbidding “corruption of blood or forfeiture of estate” as the result of a criminal conviction; and decided that insurance proceeds should go to the insured’s next of kin rather than to the named beneficiary who wilfully killed the insured.
In Farmers & Merchants State Bank v. Helton, 278 S.W.2d 352 (Tex.Civ.App., 1954, writ ref. n. r. e.), the policy provided that if the beneficiary was not living the proceeds would vest in the insured’s estate. The beneficiary having wilfully killed the insured, the Court applied Article 21.23, holding that the nearest relatives of the deceased would be the only ones entitled to receive the proceeds of the insurance policy and that the creditors of the deceased’s estate would have no claim thereto.
The Supreme Court of Wyoming considered a statute similar to Article 21.23 in Dowdell v. Bell, 477 P.2d 170 (Wyo.1970), wherein it was held that the plain language of the forfeiture statute controls over language contained in an insurance policy and *515that the proceeds would therefore be payable to the persons designated by the statute rather than the contingent beneficiary named in the policy.
The Helton and Dowdell decisions are not mentioned in the majority opinion or the opinion of the Court of Civil Appeals. I think they are well reasoned and should be followed here instead of attempting to find what the intent of the insured would have been if he had known his wife was going to kill him.
DENTON, J., joins in this dissent.. Williams v. Williams, 262 S.W.2d 111 (Tex.Civ.App., 1953, no writ).