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Statement of case.

It is undisputed that if the computation of values be made in this way the testator does not bequeath more than half of his estate to these corporations.

The result is that the judgment of the General Term should be reversed, and that of the Special Term modified so as to conform to this opinion; the costs of all parties upon the appeals to the General Term, and to this court, to be paid out of the estate.

All concur except RUGER, Ch. J., not voting.
Judgment accordingly.

JOSEPHINE TODD, Respondent, v. ALBERT WEBER et al., Ex

ecutors, etc., Appellants.

Where the putative father of a bastard recognizes and adopts the child as his own, and at his request it is cared for by others, he is liable for the expenditures so incurred, and remains so until he renounces the child or otherwise notifies the persons so caring for it that he will no longer be liable.

The natural obligation arising out of his relation to the child is also a sufficient consideration for a contract on his part to pay for its support and

maintenance.

Plaintiff, an illegitimate child, of whom W., defendant's testator, was the putative father, which relationship he acknowledged, was supported, cared for and educated by relatives of her mother from the time of her birth until the death of W., at his request and on the strength of repeated representations and promises on his part that they would be paid, that in case she survived him, he would provide for her by his will sufficient to pay for such maintenance and care. Plaintiff after she became of age, having been informed of these promises, and in reliance upon them, promised to pay the expenditures so incurred for her benefit. No such provision was made in the will. Held, that the facts established an agreement binding in law upon W., and enforceable against his estate; that the action, therefore, was maintainable, and was properly brought in plaintiff's name.

Duncan v. Pope (47 Ga. 445), Nine v. Starr (8 Oreg. 49), Moncrief v. Ely (19 Wend. 405), distinguished.

A party for whose benefit a promise was made may maintain an action

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Statement of case.

thereon, although the consideration was one between the promisor and a third person.

(Argued February 1, 1884; decided February 26, 1884.)

APPEAL from order of the General Term of the Supreme Court, in the first judicial department, made March 22, 1883, which reversed a judgment in favor of defendants, entered upon the report of a referee.

The nature of the action and the material facts are stated in the opinion.

Robert S. Green for appellants. Mrs: Story had no standing to enforce the alleged promise. This is not a case of mutual promises, where one has performed and calls on the other for performance. (Watkins v. Perkins, 1 Ld. Raym. 224; Birdsall v. Egerton, 25 Wend. 619.) The plaintiff cannot recover as the beneficiary of a promise made to a third person. (Alderson v. Maddison, L. R., 5 Ex. Div. 293; Guernsey v. Rogers, 47 N. Y. 240; Vrooman v. Turner, 69 id. 284, 285; John v. Morgan, 68 id. 497; Munson v. Dyett, 56 How. 333; Goelet v. Farley, 57 id. 175; Blunt v. Boyd, 3 Barb. 212; Rogers v. Union Stone Co., 130 Mass. 581; Mellen v. Whipple, 1 Gray, 317; Erch. B'k v. Rice, 107 Mass. 37; Tweddle v. Atkinson, 1 B. & S. 393; Carr v. Nat. Sec. B'k 107 Mass. 45.) There being no precedent legal obligation to pay, the moral obligation will not render the promise obligatory. (Moncrief v. Ely, 19 Wend. 405; Shelton v. Springett, 11 C. B. 452; Mortimore v. Wright, 6 M. & W. 482; Raymond v. Loyd, 10 Barb. 489; Freeman v. Robinson, 9 Vroom, 383.) A mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not suf ficient to support an express promise. (Geer v. Archer, 2 Barb. 420; Smith v. Ware, 13 Johns. 258; Ehle v. Judson, 24 Wend. 97; Freeman v. Johnson, 9 Vroom, 383; Farnsworth v. Clark, 44 Barb. 601; Wennell v. Adney, 3 B. & P. 247; Eastwood v. Kenyon, 11 A. & E. 438; Beaumont v. Reeve, 82 B. 486; Mills v. Wyman, 3 Pick. 207; Dodge v.

Statement of case.

Adams, 19 id. 429; Wheaton v. Wilmarth, 13 Metc. 422; Cook v. Bradley, 7 Ct. 57.) As to maintenance and support furnished subsequent to the promise, they having been furnished by her relatives, the law does not infer that the parties contemplated compensation. (Van Kuren v. Saxton, 5 T. & C. 567; Robinson v. Cushman, 2 Denio, 152; Williams v. Hutchinson, 3 N. Y. 312; Sharp v. Cropsey, 11 Barb. 224; Wilcoe v. Wilcox, 48 id. 327; Duffey v. Duffey, 44 Penn. St. 399.) No promise to pay will be inferred even against the plaintiff; none can be inferred against Weber. (Livingston v. Rogers, C. & C. 331; Conway v. Macfarlane, Penn. Sp. Ct. 25; A. L. J. 23.) If the plaintiff is entitled to recover on any grounds, the evidence by her relatives, parties to conversations with Weber was inadmissible under sections 828-829, of the Code of Civil Procedure. (Church v. Howard, 79 N. Y. 415; Miller v. Montgomery, 78 id. 282; Foote v. Beecher, id. 155; Hill v. Hotchkiss, 23 Hun, 414; Wilkins v. Baker, 24 id. 32.) The promises were of a gratuity, which were revocable at pleasure. (Duncan v. Pope, 47 Ga., 445; Nine v. Starr, 8 Oreg. 49.) There was no mutuality. (Trustees Hamilton College v. Stewart, 1 Comst. 581; Anthony v. Harrison, 14 Hun, 198; Stoddard v. Cleveland, 4 How. Pr. 148; Coleyear v. Mulgrave, 2 Kern. 82; Pearson v. Pearson, 7 Johns. 26; Fink v. Cox, 18 id. 145; Harris v. Clark, 3 Comst. 93; Eckert v. Eckert, Paige, 354; Cottage St. Church v. Kendall, 121 Mass. 528; Curry v. Rogers, 1 Foster, 247.) The promise is not enforceable, because of its uncertainty. (2 Pars. on Cont. [6th ed.] 561; Buckmaster v. Consumer's Ice Co., 5 Daly, 316; Adams v. Adams, 26 Ala. 278.)

Wm. H. Arnoux for respondent. The promises made by defendant's testator to the mother and grandmother of plaintiff, that he would remunérate them for her support and maintenance, by providing for plaintiff in his will, were not barred by the statute of limitations. (Wood's Master and Servant, $83.) Where continuous services are rendered under an entire contract, and no time for payment is fixed, the statute does

Statement of case.

not begin to run until the termination of the relation between the parties. (Schack v. Garrett, 69 Penn. St. 144; Hale v. Wood, 9 Gray, 60; Patterson v. Patterson, 13 Johns. 379; Quackenbush v. Quackenbush, 5 Barb. 469; Ryer v. Stockwell, 14 Cal. 134; Lincoln v. Purcell, 2 Head [Tenn.], 143; Morgan v. Brown, 12 La. Ann. 157; Wood's Master and Servant, § 125.) The right of action accrued only on the death of defendant's testator and the probate of his will. (Wood on Limitation of Actions, chap. 10, p. 254; Morrison v. Mullen, 34 Penn. St. 12; Pittsburg, etc., R. R. v. Ryers, 32 id. 22; Fenton v. Embler, 1 W. Bl. 353; Savage v. Alden, 2 Stark. 232; Bacon's Abridgment, Limitation, 230 D. 3; Thompson v. Gordon, 3 Strobh. [S. C.], 196; Mackey v. Hawkins, 4 C. B. 664; Sanders v. Coward, 15 M. & W. 56; Nimmo v. Walker, 14 La. Ann. 581; Bash v. Bash, 9 Penn. St. 260; Price v. Price, Cheves [S. C.], Eq. 167; Jilson v. Gilbert, 26 Wis. 637; Titman v. Titman, 64 Penn. St. 486; Riddle v. Backus, 38 Iowa, 81.) Whenever an offer is made and outstanding which is acted upon by a competent party, such performance by the promisee makes a binding contract and renders the promise obligatory. (Pierson v. March, 82 N. Y. 503; Jones v. Phonix B'k, 8 id. 228; Williams v. Cowardine, 4 B. & A. 621; Assizes, 5 C. & P. 566; Ryer v. Stockwell, 14 Cal. 134; Loring v. City of Boston, 7 Metc. 411; Freeman v. City of Boston, 4 id. 56; Lymmer v. Frazier, 6 Mass. 344; Wentworth v. Day, 3 Metc. 352; Gilmore v. Lewis, 12 Ohio, 281; England v. Davidson, 11 A. & E. 856; Lancaster v. Walsh, 4 M. & W. 16; Thatcher v. England, 3 C. & B. 254; Smith v. Moore, 1 id. 438; Neville v. Kelly, 12 id. [N. S.], 740; Turner v. Walker, L. R., 1 Q. B. 641; L. R., 2 Q. B. 301; Furman v. Parker, 1 N. J. 310; Cramshaw v. Roxbury, 7 Gray, 374; Denton v. Great N. R'y, 5 El. & Bl. 860; Fallich v. Barber, 1 M. & S. 108; 11 Mass. 31; 14 id. 172; Hurlyn v. Albany, 1 Cro. Eliz. 67; Train v. Gold, 5 Pick. 380; Hempler v. Schneider, 17 Mo. 258; Barnum v. Barnum, 8 Conn. 469; 21 Am. Dec. 689; Marsh v. Pigot, 3 Burr. 2802; Lindell v. Rokes, 60 Mo. 249; 21 Am. Rep. 395; Eagan v. Thompson,

Statement of case.

57 How. Pr. 324; Parks v. Francis, 50 Vt. 626; 28 Am. Rep. 517; Wolford v. Powers, 85 Ind. 294; 44 Am. Rep. 16; Long v. Battle Creek, 39 Mich. 323; 33 Am. Rep. 384; Stevens v. Corbett, 33 Mich. 461, Shadwell v. Shadwell, 30 L. J. 145; Gunion v. Cromartie, 11 Ired. 174; Alderson v. Madderson, Exch. Div., 29 Week. R. 105; Hammersly v. De Beil, 12 C. & F. 457; Luders v Ansbey, 4 Ves. 501; Proale v. Soady, 8 Week. R. 131; 2 Giff. 1; Loffus v. Maw, 10 Week. R. 513; 3 Giff. 592; Coles v. Pilkington, 23 Week. R. 41; L. R., 19 Eq. 174; Addison on Cont., § 11; L'Amoreux v. Gould, 7 N. Y. 349; Sanders v. Gillespie, 59 id. 251; Bohm v. Goldstein, 53 id. 634; White v. Baxter, 71 id. 254; Marie v. Garrison, 83 id. 14; Willetts v. Sun Mut. Ins. Co., 45 id. 45; Thompson v. Case, 9 U. S. Ct. of Claims, 187.) When a promise is made by the putative father of a natural child to pay to the mother a sum of money for the support of such child the court will enforce such promise as a binding contract, upon proof that the child had been so supported. (Hook v. Pratt, 78 N. Y. 371; Knowlton v. Bluett, 9 L. R. Exch. 1307; Birn v. Winthrop, 1 Johns. Ch. 337; Hicks v. Gregory, 6 C. B. [N. S.] 223; Nichole v. Allen, 3 C. & P. 36; Jennings v. Brown, 9 M. & W. 496; Kuyl v. Moore, 2 S. & S. 260; Hall v. Palmer, 8 Jur. 459.) Where a valid promise is made to one for the benefit of another the latter may maintain an action thereon in his own name. (Brewer v. Maurer, 38 Ohio St. 543; 43 Am. Rep. 436; Lawrence v. Fox, 20 N. Y. 268; Vrooman v. Turner, 69 id. 280; 25 Am. Rep. 195; Wolford v. Powers, 85 Ind. 294; 44 Am. Rep. 16; Hook v. Pratt, 85 N. Y. 377; Coster v. Mayor, 43 id. 399; French v. Donaldson, 57 id. 496; Little v. Banks, 85 id. 258; Claflin v. Ostrom, 54 id. 581; Barlow v. Myers, 64 id. 41; Clinton v. Hope Ins. Co., 45 id. 454; Glen v. H. M. Ins. Co., 56 id. 379; Carr v. Bartlett, 72 Me.; 24 Alb. L. J. 450; Coverdale v. Eastwood, 20 W. R. 216; L. R., 15 Eq. 21; Vroomans v. Turner, 69 N. Y. 284; Dodge v. Pond, 23 id. 69; Wallace v. Rapelye, 26 Alb. L. J. 316; In re Plaskett's Estates, 9 W. R. 628; 30 L. J. Ch. 606.) Although Mrs. Story voluntarily assumed the SICKELS VOL. L.

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