               IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE



TOMMY NEAL HOLT, Deceased                   )
                                            )
                                                        FILED
       Plaintiff,                           )
                                            )              April 15, 1998
VS.                                         )
                                            )            Cecil W. Crowson
MARILYN KAY HOLLINGSWORTH                   )          Appellate Court Clerk
HOLT,                                       )
                                            )
       Defendant/Third-Party Plaintiff/     )
       and Counter-Defendant/               )
       Appellee,                            )
                                            )     Appeal No.
ELLIOTT NATHAN HOLT,                        )     01-A-01-9707-PB-00314
                                            )
       Third Party Plaintiff and Counter-   )     Davidson Probate
       Defendant/Appellee,           )      No. 89D-1593
                                            )
VS.                                         )
                                            )
VICKIE LEWIS, Administrator Ad              )
Litem for the Estate of Sophia Holt, )
                                            )
       Third Party Defendant and     )
       Cross-Defendant/Appellant     )
                                            )
In Re: Proceeds of Old Line Life            )
Insurance Company of America                )
Policy Number 1878593L                      )


        APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY
                      AT NASHVILLE, TENNESSEE

                    THE HONORABLE FRANK G. CLEMENT, JUDGE




FOR APPELLEES:                                    FOR APPELLANT:

JOHN G. DOAK, SR.                                  JOHN L. WHITFIELD, JR.
2525 Lebanon Road                           95 White Bridge Road
Nashville, Tennessee 37214                  Nashville, Tennessee 37205




                             AFFIRMED AND REMANDED



                                                  BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                    OPINION

               In a marital dissolution agreement, Tommy Neal Holt agreed to procure a

$100,000 life insurance policy and name his ex-wife as beneficiary, to hold the proceeds in

trust for their minor child. when he subsequently obtained a life policy, he named his mother

as beneficiary instead. The Probate Court of Davidson County ordered the proceeds paid to the

ex-wife as trustee. We affirm.



                                               I.



               Tommy Neal Holt and Marilyn Kay Holt had one child, Elliott Nathan Holt,

born on June 27, 1978. The parents divorced in 1990 and the divorce court incorporated their

marital dissolution agreement in the final decree. In addition to giving the wife primary

physical custody of the child and setting child support to be paid by the husband, the agreement

divided the property and apportioned the marital debt. In section XII of the agreement the

parties agreed as follows:

                        The Husband and Wife agree that the Husband shall
               maintain and keep in full force and effect a life insurance policy
               in the amount of one hundred thousand dollars ($100,000.00) to
               secure his obligations for the payment of child support and other
               debts as set out in this Agreement. The Husband and Wife
               agree that the parties’ child, Elliott Nathan Holt, shall be named
               as the sole and irrevocable beneficiary of the Husband’s one
               hundred thousand dollars ($100,000.00) life insurance policy as
               set out in this Agreement. The Husband and Wife agree that the
               Wife will be named as Trustee for the benefit of the parties’
               minor child. In her capacity as Trustee, the Wife shall be, and
               is hereby authorized and directed to use the proceeds to provide
               generally for the child’s health, education and support. The
               Husband and Wife further agree that any monies in the Wife’s
               possession as Trustee for the benefit of the parties’ minor child
               will be given to the parties’ minor child at age twenty five with
               all proceeds that are remaining in trust for the benefit of the
               child to be paid over to the child at the child’s twenty-fifth
               birthday.



               At the time of the divorce Mr. Holt did not have any life insurance. In 1992,

when he and his son were living with his mother, he obtained a $50,000 policy but named his

mother as the beneficiary. In 1995, as one of the benefits furnished by a new employer, Mr.

Holt obtained a $40,000 policy and named his son as the beneficiary. When Mr. Holt died on



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January 12, 1996, the proceeds of the $40,000 policy were paid to his son, and they are not part

of this controversy.



                Marilyn Kay Holt filed a complaint in the divorce court to enforce the final

decree, and have the proceeds of the $50,000 policy paid to the clerk of the court pending a

final hearing. The complaint named Sophia Holt, Mr. Holt’s mother, and the insurance

company as defendants. The insurance company interplead the funds and was dismissed from

any further liability.



                Sophia Holt died before process could be served on her. She left a will in which

she bequeathed all of her property to Vickie Lewis. Ms. Lewis was named administrator ad

litem of Sophia Holt’s estate, and made her appearance in this case. Both sides filed motions

for summary judgment, and the trial judge held that Sophia Holt had been named beneficiary

of the policy to hold the proceeds for the use and benefit of her grandson, Elliott Nathan Holt;

that Tommy Neal Holt intended to substitute his mother as trustee in place of his ex-wife. The

court therefore ordered the proceeds paid to Marilyn Kay Holt, to hold them and apply them

in accordance with the marital dissolution agreement.



                                              II.



                It is well settled in this state that an agreement within a marital dissolution

agreement, to keep an existing insurance policy in force with the other spouse as the

beneficiary, deprives the policy owner of the right to change the beneficiary. See Goodrich v.

Massachusetts Mutual Life Ins. Co., 240 S.W.2d 263 (Tenn. App. 1951). This result is based

on estoppel by judgment or on a theory that the beneficiary spouse acquired a vested interest

in the proceeds of the policy. Id. at 270. See also Bell v. Bell, 896 S.W.2d 559 (Tenn. App.

1994); First National Bank v. Mutual Benefit Life Ins. Co., 732 S.W.2d 278 (Tenn. App. 1987);

Herrington v. Boatright, 633 S.W.2d 781 (Tenn. App. 1982).



                The appellant relies on an unreported case by the Eastern Section of this court

which held that where the policy was not in existence at the time of the divorce, the other


                                             -3-
spouse did not acquire a vested interest in any particular policy. Brooks v. Brooks, No. 03A01-

9309-CH-00323, Knoxville, March 3, 1994 (perm. to appeal denied July 11, 1994). In Brooks,

the court affirmed the lower court’s determination that the first wife did not have an interest

in a policy the deceased obtained after the divorce, in which he designated his second wife as

the beneficiary. We distinguished Brooks in the subsequent case of Moore v. Moore, No.

01A01-9603-CH-00139, Nashville, Sept. 13, 1996 (perm. to appeal granted Jan. 27, 1997,

dismissed Feb. 10, 1997), and held that the ex-wife did obtain a vested interest in a policy

subsequently acquired with her as the beneficiary, but which had been changed at the time of

the insured’s death. We said, “We are of the opinion that plaintiff obtained a vested interest

in the insurance proceeds once Mr. Moore complied with the court’s order.” Id. at *3.



                Of course, this case is not like either Brooks or Moore. But to dismiss the

appellee’s claim solely on the vested rights theory would ignore the theory of estoppel on which

the Goodrich court also relied. If the deceased had lived he could have been compelled to

designate his ex-wife as the beneficiary under the policy. A donee beneficiary under the

subsequently-acquired policy stands on no higher ground than he did. Goodrich, 240 S.W.2d

at 270. This assumes that the designated beneficiary did not acquire a vested interest based

upon a valuable consideration. See First National Bank v. Mutual Benefit Life Ins. Co., 732

S.W.2d 278 (Tenn. App. 1987).



                The result we reach in this case is in line with several maxims of equity, notably

that “Equity considers done that which should have been done.” Applying that maxim,

“Agreements based on a valuable consideration are, in equity, considered, in the interests of

the person entitled to their performance, as performed, and performed at the time when, and

in the manner in which, they ought to have been performed.” Gibson’s Suits in Chancery, 6th

ed. § 21. When no other rights intervene to cut off the equitable interest, the courts will enforce

the equity. Wallace v. P’Pool, 4 Tenn. App. 30 (1926).



                We are satisfied that the lower court’s judgment should be affirmed. The cause

is remanded to the Probate Court of Davidson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.


                                              -4-
                                        ____________________________
                                        BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



_____________________________
WILLIAM C. KOCH, JR., JUDGE




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