131 Wis. 216 | Wis. | 1907
The following opinion was filed December 4, 1906:
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&
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
By the Court. — Judgment reversed, and the cause remanded with directions that the circuit court award judgment ■ dismissing the complaint.
A motion for a rehearing was denied April 9, 1907.