I do not believe that the case of Gaines et al. v. Gaines, 99 S.W. 600, 30 Ky. Law Rep. 710, should be overruled. I think it is sound in principle and just in result. While it is true that the husband in the instant case as well as in the Gaines Case had the right to change the beneficiary of his insurance policy, that right certainly can rise no higher than his right to dispose absolutely of his personal estate, such as stocks and bonds and tangible personal property, during his life. But this right of the husband is met with the correlative right of the wife that the husband in exercising his rights of disposition as to property must not so exercise them as to perpetrate a fraud upon her marital rights. If he makes proper provision for his wife, then the husband may deal with his personal estate as he wishes, but, if he does not, he cannot, in the exercise of his right to deal with his personal estate as he wishes, so use that right as to strip her of her marital rights in his estate when he dies. Murray v. Murray, 90 Ky. 1,13 S.W. 244, 11 Ky. Law Rep. 815, 8 L.R.A. 95; Payne v. Tatem et al., 236 Ky. 306, 33 S.W.2d 2. It is impossible for me to see how the right to change the beneficiary in a life policy stands on any better ground than the right to sell stocks and bonds or any tangible personal property the husband may own. His right to change the beneficiary may be exercised at his will, but, in the exercise of that right, he must not perpetrate a fraud upon his wife's marital rights. It may be argued that had the policy been made payable directly to the wife, he could have changed the beneficiary, and therefore, Why can he not do so when the policy is payable to his estate? The answer is obvious. Where the policy is payable to the wife, she takes whatever rights she may have to the proceeds of the policy under the terms of the policy, and one of those terms is the right to defeat her as beneficiary. But here her rights are not to the proceeds of the policy. Her rights are marital rights the statute gives her in the estate of her husband when he dies. The law throws around that right the correlative duty of the husband to deal with that estate so that the wife's right may not become an empty one. The curb is not upon the right to change the beneficiary as given him by the policy. The curb is on his dealing with his personal estate so as to defraud his wife in her marital rights. The distinction is clear and plain. The Gaines Case recognized it. The rule of the *Page 156 Gaines Case obtains a wholesome public policy. It is a just rule and a fair one, and no good reason is advanced in the majority opinion for abandoning it.

For these reasons, I must dissent.