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tends to support the view of the defendant. The foregoing considerations lead to a reversal.
Judgment and order reversed, and new trial ordered, costs to abide the event.
HARDIN, P. J., concurs.
MARTIN, J., not voting.
BABCOCK V. CHASE.
(Supreme Court, General Term, Fourth Department. December 26, 1895.) 1. CONTRACTS-CONSIDERATION-CHANGING NAME.
Changing a child's Christian name is a sutticient consideration to support a promise by the person at whose request the name was changed to
leave the child a certain sum. 2. ACTION-PARTY NOT PRIVY TO CONTRACT.
A promise by a grandfather, made to his grandchild's parents, to leave the grandchild a certain sum if her Christian name was changed, may be enforced by the child. Appeal from special term, Chenango county.
Action by Harriet Babcock against Eugene A. Chase, executor of Christopher J. Babcock, deceased, for breach of contract. A demurrer to the complaint was overruled, and defendant appeals. Affirmed.
Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.
MERWIN, J. It is alleged in the complaint that the plaintiff was born on the 28th October, 1875, and soon after her birth was by her parents named Catharine, and so christened; that she was called, and her name continued to be, Catharine Babcock, until February, 1876, when Christopher J. Babcock, the defendant's testator, and the grandfather of the plaintiff, requested and urged her parents to change her name from Catharine to Harriet, which they were unwilling to do; that the decedent desired such change, as the name of Harriet was a favorite name with him, and he desired it should be kept in the family; that thereupon the decedent, in consideration that the parents of the plaintiff should change the name of the plaintiff from Catharine to Harriet, promised and agreed to and with the plaintiff, and with her parents for her use and benefit, that he would at his death, and in and by his last will and testament, pay to, leave for, and give to the plaintiff the sum of $500; that the parents of plaintiff, in consideration of such promise of the decedent, agreed to make the proposed change, and thereupon immediately, in performance of their said promise, did change the name of plaintiff from Catharine Babcock to Harriet Babcock, and from that time to the present that has been her name; that the decedent did not perform the agreement on his part, and did not pay to, leave for, or give to plaintiff the sum of $500, or any sum,
by his will, which has been duly admitted to probate, and letters issued to the defendant, the executor therein named; that the decedent, by his will, gave all his property to other parties, and made no provision for plaintiff. Judgment is demanded for $500, and for such other relief as shall be just and equitable.
It is claimed by the appellant (1) that there was no consideration for the promise with which it is sought to charge the estate of the testator; and (2) that there was no privity of contract between the testator and the plaintiff, and the plaintiff cannot, therefore, enforce the promise of the testator to plaintiff's parents.
1. In Wolford v. Powers, 85 Ind. 294, it was held that a promissory note, executed in consideration of a parent naming a child after the maker of the note, and in pursuance of a promise made by him that, if the child were so named, he would provide generously for its education and support in life, is based on a sufficient consideration. In that case it is said:
“The surrender, at the intestate's request, of the right or privilege of naming the appellant's child, was the yielding of a consideration. The right to give his child a name was one which the father possessed, and one which he could not be deprived of against his consent. If the intestate chose to bargain for the exercise of this right, he should be bound, for by his bargain he limited and restrained the father's right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the intestate's request was of no value. It is difficult, if not impossible, to invent even a plausible reason for affirming that such a right or privilege is absolutely worthless. The father is the natural guardian of his child, and entitled to its services during infancy; and within this natural right must fall the privilege of bestowing a name upon it. In yielding to the intestate's request, and in consideration of the promise accompanying it, the appellant certainly suffered some deprivation and surrendered some right.
It will not do to say that a bestowal of a name is a valueless act, and, if once it be granted to be of some value, then, in the absence of fraud and oppression, it must be held to possess the value placed upon it by the contracting parties.”
In Diffenderfer v. Scott (Ind. App.) 32 N. E. 87, it was held, following the Wolford Case, that naming a child after the maker of a note is a sufficient consideration for the note given to the child.
In general, a waiver of any legal or equitable right at the request of another party is a sufficient consideration for a promise. 1 Pars. Cont. (8th Ed.) 444. “A valuable consideration, in the sense of the law, may consist either in some right or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.” Currie v. Misa, L. R. 10 Exch. 162, referred to in Hamer v. Sidway, 124 N. Y. 545, 27 N. E. 256, where it is also said that courts "will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.” It is also said, quoting from Pol. Cont. 166, that “consideration means not so much that one party is profiting as that the other abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the
promise of the first." In Hamer v. Sidway a promise to pay the promisee $5,000 if he would refrain from drinking liquor, using tobacco, swearing, or playing cards or billiards for money until he should become 21 years of age, was held to be based on sufficient consideration. A similar view was taken in Lindell v. Rokes, 60 Mo. 249. In Earle v. Angell, 157 Mass. 294, 32 N. E. 164, it was held that a promise to pay the promisee $500 if he would attend the funeral of the promisor was enforceable. In view of the doctrine of the Wolford Case, and the general principle enunciated or approved in the Hamer Case, we are of the opinion that a sufficient consideration is alleged for the promise of the decedent. There is no question here about the adequacy. Earl v. Peck, 64 N. Y. 598. That has been fixed by the parties.
2. Can the plaintiff enforce the promise? It was made expressly for her benefit, and by reason of the relationship between her and the promisee, and also by reason of her connection with the consideration there was such a privity between her and the promisee that she had a right to enforce the contract. This view is sustained by authority. In 1 Com. Dig. (5th Ed.) 304, and note p, the rule is stated:
"When one for whose benefit a contract has been expressly made is nearly related to the party from whom its consideration moves, either may sue for the breach of it, though the pendency of either's suit will preclude the other's action."
This is based mainly on the case of Dutton v. Poole, 2 Lev. 210, where the right of the child to sue was asserted. The authority of that case has been often recognized. Shepard v. Shepard, 7 Johns. Ch. 63; Todd v. Weber, 95 N. Y. 193; Knowles v. Erwin, 43 Hun, 152, affirmed 124 N. Y. 633, 26 N. E. 759; Sackett v. Sackett, 14 N. Y. St. Rep. 253. The principle that relationship may be the basis of a privity sufficient for the action is also recognized in Bogardus v. Young, 64 Hun, 404, 19 N. Y. Supp. 885; Coleman v. Hiler, 85 Hun, 547, 33 N. Y. Supp. 357. In Vrooman v. Turner, 69 N. Y. 283, 284, it is said:
"To give a third party who may derive a benefit from the performance or the promise an action, there must be: First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally."
The plaintiff here has certainly an equitable claim to the benefit of the promise. The parents acted for her as well as for themselves in the transaction. They owed her a duty in that regard, from which it may well be said a privity arose sufficient for the maintenance of the action.
The case of Townsend v. Rackham, 143 N. Y. 516, 38 N. E. 731, cited by the appellant, related to a matter widely different from the present, and the general rule there stated had no reference to the somewhat exceptional cases like the one now under review. We are
of the opinion that upon the facts alleged the plaintiff had a right to sue.
It is suggested by the appellant that no damages are alleged. If there was a breach of the contract, there were, at least, nominal damages. Besides, the allegation of the complaint is that the de. cedent would pay to the plaintiff the specified amount. We are of the opinion that a cause of action is alleged.
Interlocutory judgment affirmed, with costs, with leave to defendant to answer in 20 days upon payment of the costs of the demurrer and of the appeal. All concur.
In re WILSON'S ESTATE. (Supreme Court, General Term, Fourth Department. December 26, 1895.) 1. ADMINISTRATORS-RighT TO APPOINTMENT— WiFE.
Under Code Civ. Proc. $ 2060, providing that administration must be granted to the relatives of the deceased "entitled to succeed to his personal property, * in the following order: (1) To the surviving husband or wife," etc.,-a surviving wife is entitled to letters, though, before her husband's decease, she had released her right to share in the distribution
of the estate. 2. Sane-RENUNCIATION OF Right.
A written agreement between husband and wife, whereby the latter relinquishes all interest in her husband's estate, is not a renunciation of her right to administer thereon, under Code Civ. Proc. § 2663, providing that a person may renounce his right to administer, by a written instrument acknowledged, etc., and tiled in the surrogate's office. Appeal from surrogate's court, Oneida county.
Petition by Larned K. Wilson for letters of administration upon the personal estate of Larned K. Wilson, Jr., deceased. From a decree awarding letters to Emma E. Wilson, decedent's widow, petitioner appeals. A ftirmed.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
MERWIN, J. The question on this appeal is whether the respondent, as the surviving wife of the decedent, is entitled to letters of administration upon his estate. It is practically conceded that she is entitled, unless she is disqualified by reason of the effect to be given to the provisions of an agreement of separation made between the respondent and her husband and a trustee on the 14th September, 1894. By this agreement the respondent, in consideration of the payment of a certain sum of money to the trustee for her, in substance, agreed to receive the same in satisfaction of any right of dower she then had or might thereafter have in any real estate of her husband, and in full payment and satisfaction of and for her distributive portion of all his personal property which he then had or might thereafter acquire, and in full satisfaction and payment of all statutory exemptions given by law to widows, to which she might at any time be entitled from his estate; and she
thereby released all claims of dower or other interest in any of his property then or thereafter to be owned by him, and agreed that she would make no claim of dower or other interest in it.
The argument of the appellant is that the respondent is not entitled to share in the distribution of the personal property, and is therefore not entitled to administer, as against the appellant, who is the father of the decedent, and his next of kin. The ground taken by the appellant in his petition to the surrogate's court is "that the said widow, Emma Wilson, has, by an instrument in writing, released and assigned all of her right, title, and interest in the real and personal property of said deceased.” By Rev. St. pt. 2, c. 6, tit. 2, § 27, it was provided as follows:
“Administration, in case of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased; and the creditor first applying, if otherwise competent, shall be entitied to a preference; if no creditor apply, then to any other person legally competent."
Under this statute it was held in Lathrop v. Smith, 24 N. Y. 417, that it was not essential to the right of administration that the person administering should stand in a position to take a share or portion of the decedent's personal estate; that, when the father who was entitled to the personal estate had renounced, the brother was entitled to administration before a creditor, although the brother had no interest in the estate. Apparently the order of preference stated in detail was deemed to control the expression, "who would be entitled to succeed." The statute upon this subject now in force is section 2660 of the Code of Civil Procedure, which reads, so far as the question here is concerned, as follows:
“Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same in the following order: (1) To the surviving husband or wife. (2) To the children. (3) To the father. (4) To the mother. (5) To the brothers. (6) To the sisters. (7) To the grandchildren. (8) To any other next of kin entitled to share in the distribution of the estate. (9) To an executor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee. If the person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons. If no relative, or guardian of a minor relative, will accept the same, the letters must be granted to the creditors of the deceased; the creditor first applying, if otherwise competent, to be entitled to preference.”
It will be observed that the expression in the Revised Statutes, “who would be entitled to succeed to his personal estate," is changed to, "entitled to succeed to his personal property.” It is argued that this change does away with the effect of the decision in the Lathrop Case. That, however, does not clearly appear. On the contrary, the reasoning of the Lathrop Case would practically apply with as much force to the present section as to the former one. In