IN RE:                          )
                                )
     ESTATE OF FRED MOORE, JR., )
                                )
     JENNIFER ELLEN MOORE AKIN, )
                                )
        Plaintiff/Appellant,    )       Appeal No.
                                )       01-A-01-9603-CH-00139
v.                              )
                                )
MRS. FRED (LONDA) MOORE, JR.,   )       Williamson Chancery
                                )       No. P-91-680
     Defendant/Appellee.        )

                                                        FILED
                COURT OF APPEALS OF TENNESSEE          September 13, 1996

                 MIDDLE SECTION AT NASHVILLE            Cecil W. Crowson
                                                       Appellate Court Clerk

  APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY

                   AT FRANKLIN, TENNESSEE


         THE HONORABLE HENRY DENMARK BELL, CHANCELLOR




E.E. EDWARDS, III
JAMES A. SIMMONS
1707 Division Street, Suite 100
Nashville, Tennessee 37203-2701
     ATTORNEYS FOR PLAINTIFF/APPELLANT



JAMES V. DORAMUS
GREGORY MITCHELL
Doramus & Trauger
The Southern Turf Building
222 Fourth Avenue North
Nashville, Tennessee 37219-2102
     ATTORNEYS FOR DEFENDANT/APPELLEE




               AFFIRMED IN PART, REVERSED IN PART,

                          AND REMANDED
                                                SAMUEL L. LEWIS, JUDGE
                                O   P I N I O N


        Plaintiff/appellant, Jennifer Ellen Moore Akin, appeals from

the chancery court's decision to deny her motion for summary

judgment   and    to   grant    the    motion   for    summary    judgment   of

defendant/appellee, Mrs. Fred (Londa) Moore, Jr.



        The facts out of which this matter arose are as follows.

Fred Moore, Jr. was divorced from Jeanette Garrison Moore on 6 June

1980.   They entered into a property settlement agreement which the

court incorporated into the divorce decree.               While married, the

parties had      one   child,   Jennifer    Ellen     Moore.     The   agreement

provided that Fred Moore, Jr. was to obtain a life insurance policy

on his life "in the minimum amount of $50,000.00 payable to wife as

beneficiary for the use and benefit of Jennifer Ellen Moore."                The

agreement also provided that Mr. Moore would pay the sum of $350.00

per month as child support.           On 1 October 1981, the court entered

an amended order which decreased the amount of the child support to

$150.00 per month.       The amended order did not refer to the life

insurance provision.



        On 26 June 1981, Fred Moore married defendant. In obedience

to the property settlement agreement and the decree of the trial

court, Mr. Moore obtained and maintained a life insurance policy in

the amount of $250,000.00 through Lincoln Income Life Insurance

Company.   He listed plaintiff as a beneficiary as required by the

property settlement agreement and the decree.



        On or about 19 January 1989, Fred Moore deleted plaintiff

as a named beneficiary.             As a result, defendant was the only

remaining named beneficiary of the policy.                Mr. Moore died in

February 1990, and Lincoln Income Life Insurance Company paid the


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entire face amount of the policy to defendant.



          Defendant filed a petition to probate Mr. Moore's will in

July 1991.    The record in that case reveals that Mr. Moore owned a

policy of insurance in the amount of $250,000.00 at the time of his

death.     The court entered a final settlement of the estate on 11

February 1992 with all proceeds being paid to defendant.



          Plaintiff filed suit on 12 July 1993 seeking $50,000.00 of

the proceeds from the life insurance policy.                  Both parties filed

motions     for   summary     judgment       in   September    1995.     Shortly

thereafter, the chancery court entered its final judgment.                   The

court denied plaintiff's motion, granted defendant's motion, and

dismissed plaintiff's complaint.              Plaintiff filed her notice of

appeal on 14 Decemer 1995.         On appeal, plaintiff simply asks that

this court determine whether the chancery court's decision was

correct.



          Defendant makes two arguments in support of the court's

order.     First, defendant contends that plaintiff's only claim

against defendant individually is one for a constructive trust.

Moreover, defendant argues that plaintiff can not prevail on such

a claim because she failed to allege any improper conduct on the

part of defendant.        Second, defendant contends that plaintiff is

simply a creditor of her father's estate with a possible claim for

breach of contract because plaintiff did not have a vested right to

the insurance proceeds.        We address these arguments individually.


          Defendant argues that plaintiff can not prevail on her

constructive trust claim because plaintiff can not establish a

necessary element of a constructive trust, i.e., that defendant

comitted     fraud   or     some   other      unconscionable     conduct.     "A

constructive trust may only be imposed against one who, by fraud,


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actual or constructive, by duress or abuse of confidence, by

commission of wrong, or by any form of unconsciousable conduct,

artifice,    concealment       or   questionable          means,   has   obtained   an

interest in property which he ought not in equity or in good

conscience retain." Intersparax Leddin KG v. Al-Haddad, 852 S.W.2d

245, 249 (Tenn. App. 1992).               We agree that there is no proof in

this record that defendant was individually guilty of fraud or

other unconsciousable conduct; however, we are of the opinion that

Mr. Moore and defendant were privies.



          In LeMay v. Dubenbostel, No. 03-A-01-9110-CH-00354, 1992 WL

74584 (Tenn. App. 15 April 1992), this court held:

          [The second wife] was in privity with the deceased.
          Privies are not only those persons who are related
          by blood or law, but also those who are related
          through facts showing identity of interest.
          Privies are often said to have "derivative"
          interests.   Examples of persons in privity each
          with the other, include heirs and ancestors, donees
          and donors, lessors and lessees. Where an insured
          changes the beneficiary on a life insurance policy
          and expires, the newly named beneficiary is in
          privity with the deceased insured.

Id. at *2 (citations omitted); accord Goodrich v. Massachusetts

Mut. Life Ins. Co., 34 Tenn. App. 516, 530, 240 S.W.2d 263, 270

(1951).     In the past, courts have also held that a beneficiary is

liable    for    the   acts    of   the    insured    without      questioning      the

relationship between the beneficiary and the insured. For example,

in a case decided by the western section of this court, the

decedent's ex-wife sued the decedent's sister to recover life

insurance proceeds guaranteed the ex-wife in a divorce decree.

Harrington v. Boatright, 633 S.W.2d 781, 782 (Tenn. App. 1982).

The chancery court found that the sister held the proceeds of two

life insurance policies in a constructive trust for the decedent's

ex-wife's       benefit   as   a    result     of   the    decedent      changing   the

beneficiary in contravention of the divorce decree.                       Id. at 783.

The chancellor awarded the proceeds to the ex-wife and this court


                                           4
affirmed the decision.    Id.



       Defendant also argues that plaintiff can not recover the

money because plaintiff never acquired a vested interest in it.

Most Tennessee cases which have addressed this issue have dealt

with the situation where at least one life insurance policy existed

at the time the trial court entered the divorce decree.     In these

cases, the courts begin their discussions with the following

general rule:   When the insured retains the right to change the

beneficiary, the beneficiary has only the mere expectancy of

receiving the benefits under the policy.    See, e. g., Bell v. Bell,

896 S.W.2d 559, 562 (Tenn. App. 3 March 1994).     Courts then go on

to conclude that the beneficiary's interest vests when a court

enters a decree requiring the insured to maintain the policy and

prohibiting the insured from changing the beneficiary.     Id.



       In Brooks v. Brooks, No. 03-A-01-9309-CH-00323, 1994 WL

71528 (Tenn. App. 1994), the decedent's ex-wife brought a cause of

action against the decedent's second wife and his estate for the

deficiency in the ex-wife's life insurance proceeds.      Id. at *1.

Pursuant to the ex-wife and the decedent's divorce decree, the

decedent was to acquire and maintain $175,000.00 in life insurance

and to name his ex-wife as the beneficiary.       There were no life

insurance policies in effect at the time of the divorce.     Id.   At

the time of his death, the decedent had a $150,000.00 insurance

policy naming his ex-wife as the beneficiary and other policies

naming his second wife as the beneficiary.      Because there were no

policies in effect at the time of the divorce, the court held that

the ex-wife's interest in the proceeds from the other policies did

not vest.   Id. at *2.   Thus, the court did not allow the ex-wife to

recover the $25,000.00 deficiency.        Id.   The eastern section

affirmed the trial court's decision on appeal.      Id.


                                   5
           The decision in Brooks would seem to foreclose any recovery

on   the     part   of    plaintiff;   however,   the   present   case   is

distinguishable.         In the instant case, the father obtained the

appropriate insurance, albeit after the decree, and then changed

the beneficiary.         We are of the opinion that plaintiff obtained a

vested interest in the insurance proceeds once Mr. Moore complied

with the court's order.         In Brooks, the decedent never complied

with the court's order.          The eastern section of this court has

stated that "in all doubtful cases the doubt should be resolved

against the one who has changed the beneficiary in defiance of a

court order."       Holbert v. Holbert, 720 S.W.2d 465, 468 (Tenn. App.

1986).     In a case which was factually similar to the instant case,

the court held as follows:

             It is a general rule in this jurisdiction where a
           judgment requires a party to maintain a life
           insurance policy for the benefit of another, a
           Court of equity will not allow the Court's judgment
           to be defeated by changing the beneficiary or
           cancelling the policy, but will impose the judgment
           obligation on any policy owned by the defendant at
           his death.

LeMay, 1992 WL 74584 at *3.



           We hold that the second wife, the defendant, was in privity

with the deceased and that plaintiff obtained a vested interest in

the insurance proceeds when Mr. Moore complied with the court's

order.



           We have also considered plaintiff's issue of whether the

trial court erred in failing to grant her motion for summary

judgment.     We are of the opinion after fully reviewing this record

that there are material factual issues which preclude the granting

of plaintiff's motion for summary judgment.



           Therefore, it results that the judgment of the trial court

is affirmed in refusing to grant the plaintiff's motion for summary

                                       6
judgment and reversed in granting the defendant's motion for

summary judgment.     The cause is remanded to the trial court for

further   necessary   proceedings.       Costs   are   taxed   one-half   to

plaintiff/appellant, Jennifer Ellen Moore Akin, and one-half to

defendant/appellee, Mrs. Fred (Londa) Moore, Jr.




                                     __________________________________
                                     SAMUEL L. LEWIS, JUDGE



CONCUR:



_________________________________
HENRY F. TODD, P.J., M.S.



_________________________________
BEN H. CANTRELL, J.




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