I concur in the result. The correct answer to the problem is found in a consideration of whether a policy of insurance is property or merely the evidence of a contract. While it is true enough that the *Page 223 written instrument called a policy is not itself a thing of great value, yet the contract right evidenced by the policy is property.
"* * * It is elementary that a chose in action is property. The term chose in action includes more than matured rights of action; it also includes contract rights to receive money or other performance to become due in the future, even though contingent upon the happening of an uncertain event. A right to receive the proceeds of a policy of insurance is a chose in action even before the death of the insured." Huie, "Community Property Laws as Applied to Life Insurance", post.
This chose in action represented by the policy in the case at bar is community property because acquired by the husband during marriage with community funds and the money received in discharge of the community chose is held in the same character of title.
It is true that the husband out of the community funds purchased a gift to the wife contingent on his dying first, but since there is no evidence that he died first, the gift does not take effect and the money received in discharge of the community chose never became the separate property of the wife. Neither did the chose become her separate property. The contingency (husband's death first) necessary to convert the community chose into the wife's separate property never occurred. During the husband's life, the right to change the beneficiary being reserved, the substantial ownership of the chose was in the husband. Like other property acquired by the husband during the marriage with community funds, his rights under the policy are community property. The fact that he undertook to provide that upon the happening of the contingency of his death first, that this particular community property should be converted into the separate estate of the wife, does not change the character of the chose as community property when such contingency never happened. Huie, "Community Property Laws as Applied to Life Insurance", Tex. Law Review, Vol. XVII, No. 2 (1939); Vol. XVIII, No. 2 (1940).
SADLER, J., concurs.