Weiner v. Goldberg , 251 Ga. 470 ( 1983 )

Weltner, Justice,

dissenting.

I dissent.

“Equity considers that done which ought to be done and directs its relief accordingly.” OCGA § 23-1-8 (Code Ann. § 37-106). “Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done.” Bair v. Willis, 218 Ga. 563, 567 (129 SE2d 774) (1963), quoting Pomeroy, “Equity Jurisprudence,” Vol. 2 (5th Ed.) p. 14, § 365.

I am unable to understand any essential difference between this case and Reeves v. Reeves, 236 Ga. 209 (223 SE2d 112) (1976), and Curtis v. Curtis, 243 Ga. 611 (255 SE2d 693) (1979). In the latter case, we observed: “In Reeves, we held that where it is provided in a separation agreement incorporated into a divorce decree that the minor children of the parties are to be named beneficiaries of certain amounts of life insurance, or certain life insurance policies, the minors acquire a vested interest in the proceeds of such policies. We hold today that where a policy of life insurance replaces a policy or amount specified in such a separation agreement, the minors’ interest in the prior policy applies to the replacement policy.” 243 Ga. at 613.

That is exactly and precisely what happened in this case. The failure of Weiner to specify beneficiaries in accord with the divorce decree has the same effect as specifying beneficiaries in violation of the decree. We should not permit his inaction in that regard to deprive his children of their vested interests.

I am authorized to state that Chief Justice Hill and Justice Smith join in this dissent.