Present: All the Justices 

LUCY WILLS HARRISON JONES, ET AL. 

v. Record No. 941229 OPINION BY JUSTICE HENRY H. WHITING 

 June 9, 1995 

MARY DONNAN TODMAN HARRISON, ETC. 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 In this appeal, we decide whether the provisions of a 

property settlement and support agreement entitle a decedent's 

children of a former marriage to impose a constructive trust upon 

 part of the proceeds of his life insurance policies payable to 

the decedent's second wife. 

 John Burton Harrison, Jr., (Harrison) and his wife, Lucy 

Boyd Harrison, were divorced on February 24, 1971. At that time, 

they had three minor children, Lucy Wills Harrison, born July 18, 

1955, Lewellen Thurman Harrison, born December 11, 1957, and John 

Burton Harrison, III, born July 31, 1959.1

 The final divorce decree incorporated a property settlement 

and support agreement between the parties as contained in a 

contract and stipulation dated February 5, 1971 (the contract). 

Paragraph seven of the contract stated: 

 Husband is presently the grantor of a revocable 

unfunded life insurance trust agreement pursuant to 

which the proceeds of certain life insurance policies 

or contracts insuring his life are payable upon his 

death to Fidelity National Bank, as Trustee under said 

Agreement, to be held and administered for the 

 

 1Harrison's daughters, Lucy and Lewellen, later married and 

took the last names of their husbands, respectively Jones and 

Simek. 
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beneficiaries named in said Agreement at the time of 

Husband's death. Husband agrees either to continue 

said trust agreement in effect changing the 

beneficiaries thereunder to the children and to keep 

said life insurance policies in full force and effect 

or to simply make the children beneficiaries of said 

policies, whichever he may elect, from time to time. 

Nothing contained herein shall limit or restrict 

Husband's right to alter, amend or revoke said trust 

agreement, except that should he elect to remove Wife 

as a beneficiary thereof, he must make the children 

beneficiaries thereof. However, he may provide that 

the children's shares will be held as a single fund by 

the Trustee until the youngest child reach[es] 

twenty-five. 

 In November 1971, nine months after the divorce, Harrison 

modified the trust agreement provisions relating to the payment 

of the insurance proceeds upon his death in the following 

respects: 

 1. He eliminated the provisions for his former wife and 

provided that each child would be entitled to receive $220 per 

month from the proceeds of his life insurance policies until 

reaching the age of 21, but directed that those monthly payments 

continue while that child was in an "accredited school." 

However, all payments to that child were to cease when the child 

reached the age of 25. These support provisions for the children 

were substantially the same as those in Harrison's contractual 

support agreement. 

 2. Harrison directed that the trustee pay $150 per month to 

each of his parents for their respective lives. 

 3. Harrison directed that the trust terminate on January 1, 

1984, more than seven months prior to the time that John Burton 
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Harrison, III, would attain the age of 25 on July 31, 1984, and 

that the trust assets be paid, one-half to the plaintiffs and the 

other half to Harrison's "legal wife." Harrison married the 

defendant, Mary Donnan Todman, in 1972. 

 In January and February 1984, Harrison canceled all the 

policies listed in the trust agreement, the face amounts of which 

aggregated $70,000. However, Harrison obtained other life 

insurance policies in which he named the defendant as 

beneficiary. When Harrison died on August 10, 1991, the net 

proceeds of those policies aggregating $553,805 were paid to the 

defendant. 

 Harrison's estate was insolvent upon his death; debts and 

claims totalled $433,225, and assets available to pay those debts 

and claims totalled $195,592.63. Asserting rights under 

paragraph seven of the contract, Harrison's three children by his 

marriage to Lucy Boyd Harrison sued the defendant in her 

individual capacity and as executrix of Harrison's estate. The 

children claimed that Harrison breached the contract and, among 

other remedies requested, sought to impose a constructive trust 

upon $70,000 of the life insurance proceeds and a money judgment 

against the estate and the defendant individually. 

 The court referred the issues to a commissioner in chancery, 

who heard the evidence. The defendant successfully persuaded the 

commissioner (1) that Harrison had not breached the contract 

because his insurance obligations under paragraph seven of the 
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contract continued only for a "reasonable time," which, the 

commissioner held, was the period in which Harrison was legally 

obligated to support the children under the agreement, and (2) 

that even if Harrison had breached the contract, a constructive 

trust could not be imposed upon the life insurance proceeds in 

the defendant's hands since she had nothing to do with Harrison's 

breach. 

 Overruling the plaintiffs' exceptions to the commissioner's 

report, the trial court agreed with the defendant's first 

contention and did not address her second contention. The 

plaintiffs appeal. 

 The plaintiffs contend that since the contract provided no 

earlier termination date for Harrison's insurance obligation, it 

continued until his death. The defendant asserts the same 

contentions in this appeal as she did in the trial court.2

 In support of her claim that the contract must be construed 

to require Harrison to provide life insurance benefits to his 

 2In neither the trial court nor this Court did the parties 

address the effect of the provision in paragraph seven that 

"[n]othing contained herein shall limit or restrict Husband's 

right to alter, amend or revoke said trust agreement, except that 

should he elect to remove Wife as a beneficiary thereof, he must 

make the children beneficiaries." Accordingly, we do not 

consider the effect of this provision. 
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three children for a "reasonable time," the defendant observes 

other provisions in the contract referring to Harrison's 

obligation to support his "minor children." From this 

observation, defendant concludes that a "reasonable time" had 

passed when Harrison canceled the insurance policies described in 

the contract. There are two flaws in this contention. 

 First, the contract makes specific provision for Harrison's 

right to require that the children's shares be held as a single 

fund until the youngest child reaches the age of 25. Thus, it 

contemplates that Harrison's insurance obligation would continue 

beyond the children's minorities. The second flaw is that 

Harrison's contract indicates that the performance of his 

insurance obligation terminated at his death, no earlier time 

having been specified. And, if a time is specified in a contract 

for the performance of an act, we do not imply a promise to 

perform at an earlier and possibly more reasonable time. See

Galloway Corp. v. Wise, 244 Va. 344, 346 n.*, 421 S.E.2d 431, 433 

n.* (1992). 

 Although the defendant argues that it would be unreasonable 

to assume that Harrison had agreed to provide this insurance 

coverage to his children if he had lived to be 90 years old, the 

contract contains no such limitation. And, we have stated on a 

number of occasions that we do not rewrite contracts to insert 

provisions that have been omitted by the parties. Westbury Coal 

Mining Partnership v. J. S. & K. Coal Corp., 233 Va. 226, 229, 
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355 S.E.2d 571, 572-73 (1987); Lipps v. First American Serv. 

Corp., 223 Va. 131, 139, 286 S.E.2d 215, 220 (1982). Indeed, in 

one case we indicated that we would not circumvent this principle 

by construing contracts without termination dates to imply a 

reasonable time for its period of performance. Plaskitt v. Black 

Diamond Trailer Co., 209 Va. 460, 467-68, 164 S.E.2d 645, 650-51 

(1968) (service contract with no fixed period deemed contract 

terminable at will). 

 We think that the contractual provisions required Harrison 

to maintain the life insurance coverage described therein for the 

balance of his life. Hence, we conclude that Harrison breached 

the contract by canceling that coverage. 

 Next, the defendant notes that even if Harrison had breached 

the contract, two of what she contends are essential requirements 

for the imposition of a constructive trust are missing in this 

case. The defendant claims that the plaintiffs were required to 

prove (1) that Harrison's wrongdoing was either a breach of a 

fiduciary duty he owed the plaintiffs or an act of actual or 

constructive fraud on his part, and (2) that she either 

participated in such conduct or knew that Harrison's gift was in 

breach of his contract. We do not agree. 

 In another context, we recently reviewed the principles of a 

constructive trust in Cooper v. Cooper, 249 Va. 511, ___ S.E.2d 

___ (1995). When property is given or devised to a defendant in 

breach of a donor's or testator's contract with a plaintiff, 
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equity will impose a constructive trust upon that property in the 

hands of the recipient even though (1) the transfer is not the 

result of breach of a fiduciary duty or an actual or constructive 

fraud practiced upon the plaintiff, and (2) the donee or devisee 

had no knowledge of the wrongdoing or breach of contract. See

Story v. Hargrave, 235 Va. 563, 569, 369 S.E.2d 669, 672-73 

(1988); Williams v. Williams, 123 Va. 643, 647 96 S.E. 749, 750-

52 (1918). In Story and Williams, although the testators' 

devises of real estate were merely breaches of contract, 

constructive trusts were imposed upon the property in the 

devisees' hands even though there was no evidence that they had 

knowledge of the breach. 

 The defendant cites Overby v. White, 245 Va. 446, 449, 429 

S.E.2d 17, 19 (1993), for the proposition that the plaintiffs 

must prove improper conduct on her part in order to establish a 

constructive trust in the insurance proceeds in her hands. 

Overby is inapplicable because there the plaintiff sought to 

divest the defendant of an interest in property she had properly 

acquired long before the conduct occurred that allegedly gave 

rise to the constructive trust. Here, as in Story and Wright, 

the defendant did not own the property sought to be subjected to 

a constructive trust before the breach, she merely became a 

gratuitous donee of the property as a result of the breach. 

 And because the other elements necessary to establish a 

constructive trust are present, the defendant's gratuitous 
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receipt of a portion of the insurance proceeds forms the basis 

for imposing a constructive trust on that property. Constructive 

trusts "occur not only where property has been acquired by fraud 

or improper means, but also where it has been fairly and properly 

acquired, but it is contrary to the principles of equity that it 

should be retained, at least for the acquirer's own benefit." 

Richardson v. Richardson, 242 Va. 242, 245, 409 S.E.2d 148, 150 

(1991); Leonard v. Counts, 221 Va. 582, 589, 272 S.E.2d 190, 195 

(1980) (quoting 1 Minor on Real Property § 462 at 616 (2d ed. 

Ribble 1928)). 

 In Richardson, the transferee of the property had done 

nothing improper in bringing about the transfer. However, since 

the transferee had furnished no consideration for the transfer, 

her unjust enrichment at the plaintiff's expense was the 

equitable justification for imposing a constructive trust upon 

the property in the defendant's hands. Richardson, 242 Va. at 

247, 409 S.E.2d at 151. Likewise, in this case, the defendant's 

lack of participation in the contractual breach or knowledge 

thereof is not a defense to the imposition of a constructive 

trust upon the property the plaintiffs should have received under 

the contract.3

 

 3We find no merit in the defendant's summary contentions 

that the children had no right to enforce Harrison's agreement 

against her since (1) there were no life insurance policies in 

existence for the children's benefit at the time he made the 
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 Accordingly, we conclude that the court erred in failing to 

impose a constructive trust upon $70,000 of the insurance 

proceeds in the defendant's hands, together with interest at the 

judgment rate from the date of Harrison's death. Therefore, we 

will reverse the judgment and remand the case for entry of a 

decree consistent with this opinion. 

Reversed and remanded. 

(..continued) 

contract, (2) they were not the beneficiaries of his life 

insurance trust when he made the contract, and (3) the life 

insurance policies in effect at the time Harrison made the 

agreement were no longer in effect at the time of his death. In 

our opinion, the provisions of paragraph seven of the contract 

gave these children a contractual claim against Harrison's estate 

for $70,000. And because the estate is insolvent, we think they 

could claim a constructive trust in $70,000 of the proceeds of 

the insurance policies on Harrison's life.