Eaton v. Libbey , 165 Mass. 218 ( 1896 )

Barker, J.

The defendants concede that the privilege which was given to their testator of naming the plaintiff was a valid consideration for the testator’s promise to the plaintiff’s parents to pay him the sum of one hundred dollars, for which' sum the testator then gave his promissory note, payable to the plaintiff. But they contend that the plaintiff was a stranger to the consideration, and that he could not recover upon that note, and that he cannot recover upon the note in suit, which the testator afterwards gave to the plaintiff in renewal of the original note.

We have no doubt that the privilege of naming a child is a valid consideration for a promise. It was so held in Wolford v. Powers, 85 Ind. 294, 307. See also Parks v. Francis, 50 Vt. 626. Gifts to a child because of its name are common, and a change of name is often made the condition of a gift or bequest. In many jurisdictions the change of a name is regulated by statute.

If we assume that the right to name a child belongs to its parents, and ultimately to its father, - the child cannot be said to have no interest in the name imposed. The consequences affect the child more than any one else. He is deprived of the advantage of receiving any other name, and is subjected to the possibility of detriment because he bears the name imposed.

Assuming that the privilege belongs to the parents, if they waive the right in favor of another, we think the child has an interest in the name which it shall bear analogous to the interest which the child has in its own services, which belong to the father, but which, if the father waives his right, furnish a good consideration for a promissory note given to the child by a person to whom they have been rendered. Nightingale v. Withington, 15 Mass. 272.

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.

In this case it is fair to say that in the transaction in which the original note was given the parents were acting for the child, and were understood by the defendant’s testator to be so acting. The plaintiff has continued to bear the name, and has accepted the present note since he arrived at years of discretion, and he has further ratified the contract by bringing this suit since he became of age.

We are of opinion that there was a valid consideration for the note moving from the plaintiff himself.

It is unnecessary to consider whether the action could be maintained on any other ground.

Exceptions overruled.