Gardner v. Denison

Rugg, C. J. The facts upon which the plaintiff seeks to recover are these: His father, who was on friendly terms with the defendant’s testator, Edward Gerrish, told the latter, in November, 1900, that the birth of a child was expected in his family. Gerrish, after several interviews, promised that if a boy should be born and named for him, Edward Gerrish Gardner, he would make some provision for the child. When the child was born, on January 1, 1901, he was named for the defendant’s testator. On January 23, 1901, the plaintiff’s father, at the request of Gerrish, wrote at the latter’s dictation the following: “Jan. 23,—1901. I Edward Gerrish promis to place in trust for Joseph A. Gardner’s — 494 — youngest son born Jan 1—1901 $10,000 for naming said son after me Edward Gerrish Gardner.” No specific sum of money had been mentioned before. Gerrish then signed the paper in the presence of the plaintiff’s father, who since has had the possession and control of it. Gerrish later lived in the family of the plaintiff’s father and showed special attention to the child, bestowing many gifts upon him and constantly referring to him as “my boy.” He died in 1906, leaving an estate of more than $200,000, never having made any provision for the benefit of the plaintiff. The privilege of naming a child is a valid consideration for a promise to pay money. The child has a direct and immediate interest in his name and is more affected by it than any one else. He loses the opportunity of receiving a more advantageous name, and is compelled to bear whatever detriment may flow from the name imposed upon him. The consideration moves in part from the child, although he is not in a position personally to yield an assent to the promise at the time it is made. It is a general rule that one who is not a party to a contract cannot bring an action on it even though it be made for his benefit. But the circumstances of the parties respecting the naming of a child are so peculiar, the nearness of the relation so great, and the obligation resting on the father and mother so important, and the consequences to the child so vital, that the inference may be drawn that the father is acting in the interests of and as agent for the son in making any contract as to giving him a name. Felton v. Dickinson, 10 Mass. 287, as interpreted by Marston v. Bigelow, 150 Mass. 45,53. It was said in Eaton v. Libbey, 165 Mass. 218, at page 220, respecting the naming of a child, “The right of the parents is one which they have as the natural guardians of the child, and they may be presumed to act in the matter for its interest. If, for exercising the right in a particular manner, they receive a reward which they recognize and treat as belonging to the child, it should be considered as its property, even if the parents could have kept the reward as their own.” This action is brought in the name of the son by his father as next friend. That is a relinquishment of the father’s personal rights, as far as they ever might have been antagonistic to the son, and is equivalent to an assertion that whatever he did was done as agent for the son. The writing, signed by Gerrish, while — 495 — inartificially expressed, in substance is a declaration by the defendant’s testator that he acknowledges himself indebted in the sum of $10,000 for the privilege granted him of having the plaintiff bear his name. The words “in trust for,” in the absence of any definition of the terms of any trust, may be treated as meaning nothing more than the expression of a general purpose that the promise was for the benefit of the plaintiff. No promisee being named in the instrument, all the attendant conditions may be examined for the purpose of determining to whom in fact the promise to pay was made. Such resort to extrinsic circumstances is not for the purpose of changing the writing, but of applying it to its proper object. Way v. Greer, 196 Mass. 237. Willett v. Smith, 214 Mass. 494, 497 and cases cited. Under all the circumstances we are of opinion that the plaintiff was entitled to go to the jury. Exceptions sustained.