— In November, 1901, J. W. Shoulders, then a widower and the father by his deceased wife of two small children, whose ages are not shown by the record, became a member of the Woodmen of the World, and as such member received a policy insuring his life in the sum of' $1000 in favor of his said two children, named in the policy as the beneficiaries thereof. At that time he held as belonging to the community estate between himself and his deceased wife horses, mules and other personal property of the value of about $450. January 25, 1902, he was married to appellant, with whom he lived until his death, which occurred February 25, 1905, and by whom he had two children. At the time of Ms death he and Ms surviving wife owned as the community estate between them personal property worth about $450, all of which the trial court found was applied by his surviving wife to her own use. As further found by the trial court, the policy issued to Shoulders was “an ordinary life policy,” and the premium on same was $1.20 per month and was payable monthly. Before Ms marriage to appellant he had made two such monthly payments of premiums accrued. After Ms marriage to appellant he paid, with funds acquired by Mm while they were married, monthly premiums on the policy as they accrued, aggregating at the time of Ms death the sum of about $73.20. He was a tenant farmer. His cotton crops grown and marketed while lie and appellant were husband and wife averaged in value each year about $300. The value of other crops grown by Mm is not shown in the record. After the death of Shoulders, appellee, the grandfather of the children of Shoulder’s first marriage, qualified as guardian of their estate, and as such guardian received the proceeds of the policy *591 on their father’s life issued in their favor. The suit was brought by appellant against appellee as guardian to recover one-half of the proceeds of the policy. In her petition she alleged the payment as stated above of premiums on the policy with funds belonging to the community estate between herself and her deceased husband, and further alleged that deceased after she married him often promised her to have the policy changed and made payable to her. On the foregoing facts, as found by him, the trial court concluded as matter of law: 1. That the rights of the beneficiaries in said policy vested in them at the time it was issued, and at the death of their father they had the right to the benefit named in the policy. 2. That “J. W. Shoulders had the right to take from the community funds of himself and plaintiff enough to pay the monthly premiums on said policy accruing after the marriage with plaintiff. It was a proper exercise of his control over the community property, and was not a fraud on the rights of plaintiff.” The appeal is from a judgment entered in appellee’s favor in accordance with the conclusions reached by the court.
After stating the case:
— We think the evidence was sufficient to support the conclusion reached by the trial court that the use by Shoulders of community funds of his second marriage to pay the premiums on the policy in favor of the children of his first marriage was not with intent to defraud appellant, as the owner of an interest in such community funds. Therefore it must be said that in rendering the judgment complained of the trial court did not err. For the right of the husband to dispose of community funds is an absolute one, so long as it is not exercised for the purpose of defrauding the wife. Sayles’ Stat., art. 2968; Stramler v. Coe,
As supporting her contention appellant relies upon Martin v. Moran, 11 Texas Civ. App., 509. There the question, as stated by the Court of Civil Appeals, was “whether money collected upon an endowment insurance policy upon the life of the husband, payable ‘as directed *592 by will/ is community property of the husband and wife, -or separate property of the husband, he having left a will making disposition thereof, and it being made to appear that the premiums were paid out of community funds.” The court reached the conclusion that such proceeds were community property. It can not be denied that there are expressions in the opinion disposing of that case which fully support appellant’s contention. But we think such expressions must be regarded as dicta merely. They applied to a state of facts not before the court at the time they were made. As remarked by the court in that case, a will speaks from the date of the testator’s death, while a contract speaks from the time it is made. The right of the husband to dispose of the community estate, except for the purpose of defrauding his wife, -is an absolute one only while the marriage relationship exists. While that relationship continues, if not under a disability — as lunacy, for instance — he may expend their joint estate ever so unwisely — may squander it in “riotous living”— or may give it away to objects meritorious or without merit, yet she can not be heard to complain. It is only when he disposes of it for the purpose of defrauding her that the law will afford her relief. But with the termination of the marriage relation the absolute right of the husband to dispose of the common property also terminates. He can not while alive, by a will to take effect at his death, dispose of such property and thereby bind the wife. The property at his death being still a part of the community estate, it remains such, and his desire expressed in his lifetime to have it otherwise can not be given effect. It is in this respect that the case before us differs from the ease relied upon by appellant. In that case, at the time of the testator’s death the funds had not been disposed, but were to be, as directed by the testator’s will. Their character could not be so changed. At the time his will could be heard to speak, his absolute power of disposition had ceased. Another distinction between the two cases lies in the fact that in that one the effort on the part of the testator in effect was to give to himself property belonging to the community estate. The husband’s power to dispose of such property we think could not be so exercised. Either during his life or by will to take effect at his death, he had no right to so change the character of the property. He could not by gift to himself make the common property his separate property. In this case whether the disposition made of the community funds should be regarded as gift at the time the premiums were paid or as investments for the benefit of the beneficiaries named in the policies, it was completed during- his lifetime and while the marriage relationship continued; and moreover was for a purpose he had a right to accomplish. Eor it was not less clearly the right — and it may be said as well, the duty —of Shoulders to provide for the children of his first marriage .should they survive him, than it was his right and duty to provide for appellant and his children by her. That while discharging a duty he owed those children he may have neglected to discharge a corresponding duty he owed to appellant and his children by her, furnishes no legal reason why the children of the first marriage should be deprived of the provision made by him for them. Such a reason would ap *593 pear only after it was shown that in providing for them his purpose and intent was to defraud appellant.
As supporting the judgment rendered by the trial court appellee cites the case of Martin v. McAllister,
“The money derived from the policy on the life of Mrs. Martin was not acquired during the marriage, but was received by the husband after her death, in pursuance of a contract of insurance made during her life and belonged to Thos. P. Martin in his separate right. . . . The right to the proceeds of the policy, whether upon the life of the wife in favor of the husband, or upon the life of the husband in favor of the wife, rests upon the same principle, which is that the proceeds of" the policy belong to the person named as payee, and it becomes property upon the Contingency of the death of the insured in the lifetime of the payee. Therefore, as it would not become the property of the husband or the wife during the lifetime of both of them, it can not be held to be community property, and is, therefore, the separate property of the one to whom it is made payable.”
It will be observed that the contention was not that the husband should be charged with the wife’s part of the community funds applied to paying the premiums, but was that the proceeds of the policy should be declared to be community property. In support of the conclusion reached by it that the proceeds of the policy' were never a part of the community estate, the Supreme Court quoted the declaration of the Louisiana Court in Succession of Hearing,
The judgment is affirmed.
Affirmed.