Todd v. Weber

The complaint is two-fold : First: That the defendant’s testator, the father of the plaintiff, although not the husband of her mother, being applied to by Margaret Voris, Francis A. Knapp, Hester A. Knapp and Louisa A Story to provide for the plaintiff, promised them that he would pay for her maintenance, support and education, by making due and sufficient provision for her by his last will, in consideration that they would support her during the term of his natural life; avers that these persons were relatives of the plaintiff’s mother, and that upon this promise they maintained, cared for, educated and supported the plaintiff up to June 25, 1879, when the testator died.

Second: A promise by the testator to the plaintiff, and other persons acting in her behalf, that he would support and maintain her so long as she should live.

The testator made no provision for the plaintiff by will, or otherwise.

These promises were denied by the defendants, and the referee, to whom the issues were referred, found against the plaintiff, because in his opinion no legal claim had been established, lamenting at the same time “ that the simplicity and ingenuousness of the plaintiff and her witnesses ” — the persons above referred to — “had been practiced upon.” On appeal to the General Term that court held that the plaintiff might recover upon the first cause of action, but as to the second, that no case was made out; reversed the judgment which had followed the report of the referee and ordered a new trial. From that order the defendants appealed to this court, assenting that if the order should be affirmed, judgment absolute should be rendered against them. (Code, § 191.)

We think the referee and General Term came to a correct conclusion in regard to tne plaintiff’s right under the second

In 1863 or IS 64, when asked by the plaintiff’s mother, “do you remember about your promise to do for this child ? ” he said, “yes, and I will do well by her; if she outlives me I will remember her in my will.” Again in 1870, he inquired of her mother how she (his daughter) was ; how she was getting along with her music; if she was going to school; what music teacher she had; and being informed, he told her mother “to give her all the lessons she would take;” the mother replied “that would cost something,” and he said, “ you go on and have her take them ; never mind about that I will see that you are well paid.” In 1876 his attention was again called to his promise to provide for the plaintiff, and asked “ if he had forgotten it,” he said, “ I have not, I shall remember her in my will if she outlives me.”

She lived about two years, just after 1870, with her mother, and then with Mrs. Story and other relatives until 1879. During this time Mrs. Story boarded her and paid for her music

The plaintiff was informed by her relatives of these promises of the testator, and with that knowledge, and in reliance upon them, assured the different persons who were taking care of and providing for her, and among other times, after she was twenty-one years of age, that whatever they did for' her, she would when able repay. It is needless to recall more of the testimony. It is in no respect contradicted, and has been accepted as credible by the learned referee and General Term. The plaintiff from her birth to the commencement of this action has been cared for, maintained and educated by those relatives, each at different periods and at large expense. Its amount has been found and stated by the learned referee. He says : “ From the time of the birth of the plaintiff to the time she went to live with her cousin (Mrs. Story)

Notwithstanding all this, the learned referee felt constrained to dismiss the complaint. He thought the testator had practiced dissimulation, but so successfully that he was bound only by his own conscience, and that no action lay against him though he did not perform his promises. We cannot agree to this. In our opinion there is in the record, as above quoted, evidence of an agreement made upon valuable consideration, and, therefore, also binding in law upon him and consequently upon his estate. It is true that by the common law the child that is born before marriage is so far nulliusfilius that he cannot inherit; but he may acquire rights. Nor is his putative father under any legal liability at common law to support .him (Moncrief v. Ely, 19 Wend. 405 ), yet it is said he may take him out of the parish (Sherman's Case, 1 Ventris, 210) and maintain him, or by will leave any of his property to him,- or in his life-time make other provision for his support. So if he acknowledges or adopts the child as his own, and at his request it is cared for by others, he becomes liable in favor of the party providing for it (Moncrief v. Ely, supra ; Birdsall v. Edgerton, 25 Wend. 619 ), and remains so until he renounces •the child or otherwise notifies the persons who have it, that he will no longer be bound to them. From these or like circumstances a promise to make compensation may be implied, and of course such a promise may also be expressed by him. In either case the natural obligation arising out of the relation of the putative father to his child will uphold a contract upon which an action may be sustained (Hesketh v. Gowing, 5 Esp. 131; Nichole v. Allen, 3 C. & P. 36 ; In re Plaskett's estate, 30 L. J. Eq. 606 ; Moncrief v. Ely, supra; Birdsall v.

Duncan v. Pope ( 47 Ga. 445 ), cited by the appellant, goes no further than to hold that in the absence of a contract for its support a bastard cannot maintain an action against his putative father, or his estate. On the other hand it holds that if he voluntarily makes an agreement for it, not only may the father be bound but his representatives, while Nine v. Starr (8 Oreg. 49), also cited by him, decides only that when the mother alone is bound to maintain the child she cannot maintain- an action upon the father’s agreement to pay her 'for doing so. But even in such a case, if any provision for the child beyond such legal maintenance be included in the consideration, it is sufficient, and the promise valid. (Smith v. Roche, 6 C. B. [N. S.] 223; Follit v. Koetzow, 2 E. & E. 730.) In Moncrief v. Ely (supra), it is .held that at common law an action will lie against him for the support of his child upon an express promise, or if he had adopted the child as his own, upon an implied promise in favor of the party maintaining it; but the plaintiff in that case failed to recover, because there was no evidence of a promise express or implied. This case was followed in Birdsall v. Edgerton (supra). Indeed it has never yet been held that there was any thing illegal in an undertaking by a putative father to support his bastard, or to pay a sum of money in consideration of such support being furnished by .another, though that other person was the mother of the child. Upon principle and authority such a promise must be regarded as valid.

But notwithstanding this, the learned counsel for the appellant argues that the promises made by the testator to Mrs. Voris, Mrs. Iinapp and Mrs. Story were without consideration — mere naked promises, and not enforceable. The learned referee finds that the testator did not expressly promise to pay the plaintiff’s relatives, nor anyone else, for the expenses incident “ to her maintenance and support, and whatever was said by him was contingent on the plaintiff’s outliving him, and was limited to such provision as he might make for her by his

The books are full of cases where such contracts are sup

At the death of the testator the consideration had been fully performed, and the promise attached. Its enforcement therefore may stand upon the principle that where one person assumes a charge, or alters his position, or does any act by reason of a promise or representation made by another, the person making the promise or representation cannot withdraw from it, but is bound by it, although he did not intend to be. Moreover in the case before us the testator did have a full qnidjrro quo. What he desired was that his daughter should be well cared for and educated. He wanted also that this should be done by his daughter’s relatives, and to stimulate them to do that which they were in no sense bound to do, he represented or promised that provision should be made for her by will. It was as if he had said, “ Take good care of her, clothe and feed her and educate her during my lifetime, and at my death she shall have from my estate a sum at least equal to the cost of all you do and

If I am right in these conclusions there is before us a valid contract made between the testator and the several persons named, for the benefit of the plaintiff. The only remaining question is one of parties—who should bring the action for its enforcement. As she had the sole beneficial interest in the contract, it was, we think, properly brought in her name. This would seem plain enough upon principle, but it is also well established by authority. In Dutton and Wife v. Poole (2 Levinzs, 210), decided in the time of Charles II, a son promised his father, upon a consideration moving from him, to pay his daughter one thousand pounds. Hpon default the daughter sued. After verdict for the plaintiff it was argued in arrest of judgment that the action should have been by the father, not the daughter, for the promise it was said was made to the father, and the daughter was neither privy nor interested in the consideration, nothing being due to her. The court seemed to hesitate, but after more than one hearing and citation by counsel of cases fro and con, it was held in favor of the plaintiff, the chief justice saying that there was such apparent consideration of affection from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children, and the judgment then given was, on error brought, affirmed in the Exchequer Chamber.

A century later Lord Mansfield,- in Martin v. Hind (Cowper 437-443), referring to Dutton v. Poole (supra) said, “ It was matter of surprise how a doubt could have arisen in that case.”

A few years after (1806) a similar question came before the Supreme Court of this State, in Schemerhorn v. Vander

A different rule is said to prevail in those tribunals at the present time (per Wightman, J., in Tweddle v. Atkinson, 1 Best & Smith, Q. B. 393; 101 Eng. Com. Law R. 393), and there even in equity the doctrine of the earlier cases may be considered as unsettled. (Pollock’s Principles of Contract, 196.) But in this State it has, I believe, been uniformly adhered to. In 1817 it seems to have been approved by Chancellor Kent. (Cumberland v. Codrington, 3 Johns. Ch. 254 ) The question came directly before him in 1823, and it was answered in the same way upon the principle asserted in Dutton v. Poole, (supra), and the learned chancellor held that where a father conveyed land to his son on his covenanting to pay an annuity to his mother during her widowhood, she might maintain an action on the covenant so made for her benefit (Shepard v. Shepard, 7 J. Ch. 56 ), and in 1845 his successor says it has been the settled law from the time of the decision of the case of Dutton v. Poole (supra), down to the then present time, that a party for whose benefit a promise is made may sue in assumpsit upon such promise, although the consideration for such promise was a consideration between the promisor and a third person.

Such also was the conclusion of the late Supreme Court of this State after a full examination of the authorities in Barker v. Bucklin ( 2 Denio, 45 ). Also by the present Supreme Court in 1859 in Judson v. Gray, affirmed by this court ( 17 How.

It may be conceded that if the plaintiff had not outlived the testator, no action at all would lie, for that she should, of the two, be the longest liver was one of the conditions upon which his promise was made. He died first. The condition then was fulfilled. The plaintiff is, therefore, entitled to recover of the defendants the amount found by the referee to have been paid, laid out and expended for her by her relatives, as above stated, together with interest from the death of the testator.

The order of the Greneral Term should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs.

All concur, except Andrews, J., who dissents.

Order affirmed and judgment accordingly.