36 N.Y.S. 607 | N.Y. Sup. Ct. | 1895
The plaintiffs in the two actions were the children of Truman H. Whitcomb and Eleanor J. Whitcomb, his wife, and the defendant’s testator, Samuel Whitcomb, was the grandfather of the plaintiffs. This action was brought upon an agreement in writing entered into in 1879, between Truman H. Whit-comb, of the first part, Eleanor Whitcomb, of the second part, and the defendant’s testator, of the third part, whereby the latter agreed at his death to pay or cause to be paid to each of those grandchildren the sum of $1,000, and to provide by his last will and testament for the payment thereof; but, in case $2,000 should exceed one-half of his estate at the time of his death, one-half only of the-amount of his estate should be paid to them. By the agreement it was also provided that Eleanor, the wife, should have the custody of the two children, who were minors, and that certain provisions should be made by Truman H. Whitcomb to her and for the children. The defendant’s testator, by his will, gave nothing to those-grandchildren.
It is urged on the part of the defendant that the testator, by his agreement to do so, assumed no legal obligation to make in his will any provision for them, because there was no personal liability of' the mother to them. She, by the agreement, having the custody of the plaintiffs, then infants, assumed to take care of them, and such agreement of the testator may be deemed to have been one of the-considerations for her undertaking. In view of the relation of Mrs. Whitcomb to the children, her duty to them arising from it, and of the fact that she proceeded in its performance on the faith of the-provisions of the agreement, the promise of the testator would seem to come within the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases. This is not inconsistent with the legal proposition that a promise to pay an existing obligation of another is not effectual to charge the promisor where there is no liability of the
It is contended by the learned counsel for the defendant that the plaintiffs were denied the right of action on the promise by the failure of the mother to observe and perform the provisions of the agreement, in that she agreed to proceed with the prosecution of the action then pending for a divorce, and that, if the stipulations of contract were faithfully carried out, she would make no further demands upon Truman H. Whitcomb. It is true that the agreement contained those provisions. An action brought by her for divorce was then pending, and it was contemplated that she would proceed to judgment. She did this by a new action commenced for such purpose, in which were alleged further facts in its support. This substantially accomplished the object which the parties had in view by that provision of the contract. But because she took, by that judgment, direction for payment by Truman H. Whitcomb of a certain sum for alimony, it is urged that she violated the provision not to make further demands upon him. The recovery itself had no significance contrary to that provision, because she was not required to make it available, and it cannot be assumed that she would if he faithfully performed what he undertook by the contract; nor did she use the judgment to defeat the effect of any provision of the agreement, but, after its recovery, she accepted from him his notes for certain amounts, in discharge of his further
The final conclusion of law in the referee’s report was the direction of judgment against the defendant, with costs. Exception was filed to the award of costs. Upon the entry of the order of reference, the proceedings became actions in the supreme court; and the determination of the question of costs is governed by the provisions of the statute relating to costs in an action brought in such court against executors or administrators in their representative capacity, in which recovery is had against them. Code Civ. Proc. § 2718. The plaintiffs’ right to recover costs against the defendant was dependent upon a certificate of the referee that the payment of the claims was unreasonably resisted or neglected. Id. §§ 1835, 1836. No such certificate was made, and therefore no right to recover costs appears. Matson v. Abbey, 141 N. Y. 179, 36 N. E. 11. We think, nevertheless, that the plaintiffs should be allowed to recover their disbursements.
The judgments should be modified by striking out the award of costs, and inserting the amount of disbursements as such; and, as so modified, the judgments should be affirmed, with costs of these appeals payable out of the estate. All concur.
