#### WHITCOMB v. WHITCOMB (two cases).

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Action on Contract—Persons not Parties.

A wife, who was prosecuting an action for divorce, her husband, and his father made an agreement by which she was to continue the action and was to have custody of her children, who were infants, the husband was to make certain provisions for her and the children, and further than that she was to make no demand on him, and the husband’s father was by will to leave a. certain amount to the children. *Held*that, for failure of the promisor to make such provision in his will, action could be maintained against his executor by the children.

2. Agreement—Performance.

An agreement between a wife, who was prosecuting an action for divorce, her husband, and his father, by which she was to proceed with the action, the husband and father were to make certain provisions for her and her children, and she was to make no further demands on the husband, is not violated by the wife’s commencing another action, and obtaining divorce under it, instead of under the action pending at the time *608oí the agreement, or by her obtaining judgment for alimony, she having undertaken, after entry thereof, not to enforce it if the husband complied with his obligations under the contract.

3. Costs—Against Executors.

Costs on reference of a claim against a decedent’s estate, under Code Civ. Proc. § 2718, being, as therein declared, regulated by sections 1835, 1836,_ providing that costs shall not be awarded against an executor unless it appears that payment of the claim was unreasonably resisted or neglected, and declaring that the facts must be certified by the referee, cannot be recovered against the executor, in the absence of the referee’s certificate to such resistance or neglect of payment.

Appeal from judgment on report of referee!

Claims by Charles S. Whitcomb and by Ida S. Whitcomb, respec- - tively, against Flynn Whitcomb, as executor of Samuel Whitcomb, deceased. The claims were disputed by the executor, and were referred under the statute. The referee found in favor of claimant in each case, and defendant appeals.

Modified.

Argued before LEWIS, BRADLEY, and WARD, JJ.

George A. Benton, for appellant

W. H. Whiting, for respondent.

BRADLEY, J.

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*609promisee to pay it, and the persons entitled to receive its payment and liable to pay it are strangers to the promise. Vrooman v. Turner, 69 N. Y. 280. In such case there is no privity between the promisee and the person who is entitled to the payment of the obligation. The support of a promise made by one person to another for the benefit of a third person requires no privity between the promisor and him for whose benefit it is made, but, between the latter and the promisee, privity is essential in so far that some duty is owing by the promisee to the person to be benefited by the promise, or some reciprocal duties are undertaken or assumed by them in respect to which the promise may have some beneficial relation. Such, as before suggested, was the relation between the mother and the plaintiffs, and, in taking the agreement of the defendant’s testator, she may be deemed to have acted in their behalf. As the promise was made with a view to aid in the support and maintenance of those children, it was within reasonable contemplation that the mother might be entitled to reimbursement from the fund for supplying the means necessary for such' purpose. Ex parte Bostwick, 4 Johns. Ch. 100; Wilkes v. Rogers, 6 Johns. 566; Voessing v. Voessing, 4 Redf. Sur. 360; In re Ogg’s Estate (Surr.) 4 N. Y. Supp. 341. The promise of the defendant’s testator was not only made for the benefit of the plaintiffs, but was one to pay to them, respectively, the specified amounts in the manner mentioned. It was founded upon a good consideration. By his default a right of action accrued to each of the plaintiffs, and they were entitled to recover unless some further reason appears to defeat the actions. Todd v. Weber, 95 N. Y. 181; Rector, etc., v. Teed, 120 N. Y. 583, 24 N. E. 1014.

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 *610obligation upon the contract, and undertook, in case they were paid, not to enforce such direction in the judgment so recovered against him. This precautionary provision of the judgment, and the consequences of it, therefore, constituted no substantial violation on the part of Mrs. Whitcomb of the contract. No opportunity on that account was furnished to the defendant’s testator to assert relief from his promise in question. Nor does any other reason appear to relieve him from liability upon it.

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.