Freeman v. Morris
109 N.W. 983
Wis.
1907
Check Treatment

The following opinion was filed December 4, 1906:

Siebecker, J.

It is not seriously contested but that the privilege of naming plaintiff, given the testator by her parents, was a valuable one in the eye of the law, and that it has been treated as a sufficient consideration to support a contract in respect to it. This subject was considered, and such privilege held a valid consideration for a contract based on it, in the following decisions: Babcock v. Chase, 36 N. Y. Supp. 879; Parks v. Francis’s Adm’r, 50 Vt. 626; Wolford v. Powers, 85 Ind. 294; Eaton v. Libbey, 165 Mass. 218, 42 N. E. 1127; Daily v. Minnick, 117 Iowa, 563, 91 N. W. 913. These and other authorities cited therein also support the proposition that, though the privilege of naming a child may be one which is regarded as belonging to the parents as the natural guardians of the child, they may waive it and bestow the benefit derived from it on the child, and, when so bestowed in a contract with a third person, it rests on such privity between the parent and child as to enable the child to ratify the transaction and enforce the contract in its favor. See cases cited above.

It is contended that the court erred in finding the contract between plaintiff’s parents and the testator was a sufficient and enforceable one. In support of the claim it is averred that the terms of the agreement shown by the evidence were so indefinite and uncertain that they cannot be ascertained and enforced. The agreement proven and found by the court is that testator promised and agreed with the plaintiff’s parents that, if he were accorded the privilege of naming the child, he would in consideration thereof leáve her something at hi& *219death, and that this was understood by the parties that he would give, devise, or bequeath to her some of his property.. It is undisputed that testator named plaintiff pursuant to this-arrangement and at various times stated to third persons that he was going to leave her some of his property for having had the privilege of bestowing on her the name Martha. He provided for a bequest of $500 to her in three wills made by him; but these were revoked before he made and executed his last will, wherein she is wholly omitted as a beneficiary. Erorn an examination of the terms of the agreement upon which plaintiff predicates her claim, it is apparent that they wholly omit to specify any amount or particular property as agreed upon to be left to plaintiff by testator. This leaves absolutely indefinite and uncertain what plaintiff was to receive. It is true the agreement specified that he would leave plaintiff something, but what that something was to be it is simply impossible to ascertain, and, if it be claimed to apply to money, then we approach no nearer' to definiteness, and are still as to the particular amount within the field of uncertainty. The terms give us no standard, either expressly or by necessary implication, by which performance of the agreement can be measured.

It is contended, however, that testator removed this difficulty by fixing $500 as the amount he would leave plaintiff under his agreement, and that this made it a definite and certain consideration. This claim is based upon the facts that he made such declarations to third persons and in wills which he revoked before his death. The terms of the agreement, however, are not that plaintiff was to receive such property or sum of money as testator might suggest to third persons or specify in a will made by him. The agreement contains nothing to show that any such designation was to bind testator and 'make such specification the amount agreed upon by the parties. Its terms wholly fail to determine the amount or to provide a means by which it can be ascertained or measured. We *220receive no such, aid from testator’s conduct or declarations as removes the infirmities inherent in the contract, and must hold it invalid for indefiniteness and uncertainty. Adams v. Adams, 26 Ala. 272; Walls’s Appeal, 111 Pa. St. 460, 5 Atl. 220; Daily v. Minnick, supra.

By the Court. — Judgment reversed, and the cause remanded with directions that the circuit court award judgment ■ dismissing the complaint.

Timlin, J., took no part.

A motion for a rehearing was denied April 9, 1907.