alleged agreement was made [the putative father] was under no legal obligation whatever to complainant. It may be true that he had committed adultery with her, but, if he had, that fact cannot be regarded as a sufficient consideration to support a promise to make a will. It is a familiar rule of equity that a party seeking the aid of a court of conscience must come into court with clean hands. Here complainant violated her marriage obligation. When she became pregnant

she violated the laws of the state, and was guilty of adultery, and then, in turn, undertakes to make these violations of duty and law the foundation for a consideration to support a promise, which she calls upon a court of equity to enforce. A court would stultify itself should it grant relief under such circumstances."

IV. Effect of Statute of Frauds. An oral contract to provide for, support, or maintain the promisor's illegitimate child until it shall attain a certain age is not within the Statute of Frauds, inasmuch as the contract may be fulfilled within a year from the making of it by the death of the child, though that may or may not be in the contemplation of the parties. Francis v. Barnwell (1920) 25 Ga. App. 798, 105 S. E. 165; Wiggins v. Keizer (1855) 6 Ind. 252; Stowers v. Hollis (1886) 83 Ky. 544; Doty v. Doty (1904) 118 Ky. 204, 2 L.R.A. (N.S.) 713, 80 S. W. 803, 4 Ann. Cas. 1064; M'Lees v. Hale (1833) 10 Wend. (N. Y.) 426; Ewing v. Richards (1882) 8 Ohio Dec. Reprint, 357; Souch v. Strawbridge (1846) 2 C. B. 808, 135 Eng. Reprint, 1161.

Contra:

Goodrich V. Johnson (1879) 66 Ind. 258; Farrington v. Donohoe (1866) Ir. Rep. 1 C. L. 675. Thus, the promise of a putative father to pay for the past and future support of his illegitimate child is not within the Indiana Statute of Frauds, as that statute, a substantial re-enactment of the English statute (Statute 29 Car. II.), is applicable only to contracts which, by their express provisions, are not to be performed within one year, and not to

those which might not be performed within a year. Wiggins v. Keizer (1855) 6 Ind. 252. And there is a similar decision construing the New York statute, in M'Lees V. Hale (1833) 10 Wend. (N. Y.) 426. But see Goodrich v. Johnson (Ind.) infra, which weakens, if not overrules, the Wiggins Case (Ind.) supra.

And even where the oral contract is one to convey real property, and therefore cannot be specifically enforced, although there has been performance by one party, the court will award as damages for a breach of promise the value of the land promised. Benge v. Hiatt (1885) 82 Ky. 666, 56 Am. Rep. 912; Doty v. Doty (1904) 118 Ky. 204, 2 L.R.A. (N.S.) 713, 80 S. W. 803, 4 Ann. Cas. 1064.

Thus, where the father of an illegitimate child promised to give the child a sum of money and to convey to it a tract of land of a specified value, if the mother would surrender custody of the child and permit the father to raise and care for it during minority, the court in Benge v. Hiatt (Ky.) supra, held that although the promise to convey the land, not being in writing, could not be enforced, damages for the failure of the father to convey the land would be awarded to the child, to the amount of the property which the father promised to convey, inasmuch as the agreement, on the part of the mother, had been fully performed, and the contract had never been rescinded.

And, in this connection, see also Ewing v. Richards (1882) 8 Ohio Dec. Reprint, 357, where it was held that performance by one party under an agreement to support, care for, and give a portion of the promisor's estate. to his illegitimate child, if the mother would surrender control and custody of the child to him, takes the contract out of the statute.

And where the father of several illegitimate children made an oral contract with the mother to pay the latter a certain sum annually, so long as she should maintain and educate the children, the court in Knowlman v. Bluett (1874) L. R. 9 Exch. (Eng.) 307-Exch., held that, even though

the agreement was within the Statute of Frauds, recovery might be had for arrears due the mother under the contract, inasmuch as she had performed her part, and it would be unjust if she could not obtain repayment of sums which she had expended in the maintenance and education of the children.

So, in Francis v. Barnwell (1920) 25 Ga. App. 798, 105 S. E. 165, it was held that a petition filed in 1919, charging that in 1901 the plaintiff gave birth to a child of which the defendant was the father, and that the defendant at that time promised the mother that, if she would say nothing about his wronging her, he would furnish her and the child with a home, and supported and aided her at intervals until 1918, when he refused to comply with his promise to support, was not demurrable, because it alleged a parol contract contrary to the Statute of Frauds, or because it alleged an action barred by the Statute of Limitations.

But, on the other hand, the Indiana court has held (Goodrich v. Johnson (1879) 66 Ind. 258) that an oral agreement between the father and mother of an illegitimate child, made when the child was about a year old, whereby the father, in consideration of the dismissal of a prosecution for bastardy instituted by the mother, contracted to take the child into his care and keeping, and maintain, support, educate, and clothe her in the manner of other children in creditable circumstances in life during and until she was twenty-one, is a promise or agreement that, by its terms, cannot be performed within one year, and is for that reason within the Statute of Frauds and void. The court said: "The agreement or promise.

upon

which the appellee sued in this action, by its express terms, was not to be, and could not be, performed within. one year from the making thereof. It was a continuing promise, extending through the period of twenty-one years from the making thereof, and was not to be fully performed until after the lapse of all those years. However binding in ethics or good conscience the decedent's agreement

or promise, as stated in appellee's complaint, was, or may be supposed to have been, we are clearly of the opinion that, under the provisions above quoted from the first section of the Statute of Frauds, no action can be brought and maintained upon such an agreement or promise." No reference was made to Wiggins v. Keizer (Ind.) supra, which is apparently contra.

And it has been held that an oral contract to maintain an illegitimate child until it should be able to maintain itself, made when the child was five years old, is within the Statute of Frauds, for, although susceptible of being terminated within one year by the death of the child, it does not fairly contemplate performance within a year. Farrington v. Donohoe (1866) Ir. Rep. 1 C. L. 675.

V. Where obligor is a minor.

A putative father of an illegitimate child cannot plead as a defense to his liability on a contract with the child's mother to support the child, in consideration that bastardy proceedings should not be taken against him, that at the time the contract was entered into he was a minor, inasmuch as this contract is a discharge of an obligation imposed upon him by law. Stowers v. Hollis (1886) 83 Ky. 544.

VI. Who may enforce contract. With apparently but one exception, the courts which have discussed the question of who is legally entitled to enforce a contract by a putative father to provide for or support his illegitimate child have held that, since the contract is for the child's benefit, it may be enforced by the child in its own name, although the contract was between the father and the mother, and the child was not a privy thereto. Allen v. Davison (1861) 16 Ind. 416; Marlett v. Wilson (1868) 30 Ind. 240; Clarke v. McFarland (1837) 5 Dana. (Ky.) 45; Todd v. Weber (1884) 95 N. Y. 181, 47 Am. Rep. 29; THAYER V. THAYER (reported herewith) ante, 428; Ewing v. Richards (1882) 8 Ohio Dec. Reprint, 357.

Thus, in Allen v. Davison (Ind.) supra, it was held that an action for

specific performance of a contract to convey real property to the plaintiff, an illegitimate child, made between the defendant intestate and the child's paternal grandfather upon condition that the latter would care for the child until it reached the age of fourteen, was well brought in the name of the child, as the contract had been made for his benefit.

The cases "seem to have established the doctrine that, if there be a sufficient consideration between the contracting parties to make the contract legally binding as between themselves, the relation of parent and child between the promisee and the person to whom the promisor has undertaken to pay will be sufficient to give to the child, as beneficiary, a legal right to demand and enforce the performance of the promise; for, though such relationship would not, alone, be a sufficient consideration for an enforceable promise by the parent to the child, yet it will convert the valuable consideration passing from the parent, to the benefit of the child, just as if it had actually passed from the latter directly to the party promising, in consideration of value received from the parent, to pay the child, instead of the parent, in consequence of the relation between them, which induced the latter thus to pro

vide for the former, not by an executory parol contract between themselves, but by the promise of a stranger to pay the child what the parent purchased for, and, in this mode, actually advanced to, the child." Clarke v. McFarland (1837) 5 Dana (Ky.) 45.

And the reported case (THAYER V. THAYER, ante, 428) holds that the rule that, where a contract is made between two parties for the benefit of a third, the latter may sue thereon, although he is not strictly a privy to the contract, permits an illegitimate minor to enforce a contract with his mother, made at his birth by his reputed father, to support and educate him.

But, on the other hand, the Georgia court has held that the mother of an illegitimate child, and not the child, has the right to sue on a contract made by the putative father of the child with the mother, binding the former to pay the latter a specified sum a month for a period of ten years for the child's support; she has a legal right to sue the father for each month's instalment as it comes due, or she can wait until the expiration of the ten years, and sue for the entire amount covered by the contract. Franklin v. Ford (1913) 13 Ga. App. 469, 79 S. E. 366. G. S. G.

39 A.L.R.-29.