■ The following opinion was filed February 7,1882:
Lyon, J.
I. A question of practice will first be disposed of. The court did not, in express terms, deny plaintiff’s motion to set aside the report of the referee; and it is claimed [559]*559that the omission is fatal to the judgment. Fairbank v. Newton, 46 Wis., 644, is cited to support this position. The precise point decided in that case is, that confirmation of the report of the referee must precede a judgment entered pursuant to such report, or the judgment cannot be upheld. In this case the report as modified was confirmed by the court. In substance and effect such confirmation was a denial of the motion to set the report aside. It was so held in Lemke v. Daegling, 52 Wis., 498; The cases are not distinguishable,
II. The judgment of the circuit court is based upon two propositions found by the court, to wit: first, that the defendants were ready and willing to furnish Mrs. Houghton suitable and proper maintenance at their home, and were not bound by their covenant to furnish it elsewhere; and second-, that the expenses incurred by the plaintiff for the maintenance of his mother were incurred gratuitously. If either of these findings is correct, the judgment should not be disturbed.
1. The contract of May 29, 1875, fairly construed, we think, gives Mrs. Houghton the right to. reside where sh.e pleases, and to charge the defendants to the exteut of $125 jyer annum for her maintenance, and in case of her sickness or other pressing necessity for a larger sum. By the terms of that instrument Aaron Houghton covenanted that his wife should have the right- to choose her own residence at her pleasure, and no right is reserved therein to the defendants to control her in that behalf. In fact, according to the testimony of the defendant husband, Mrs. Houghton did not reside with the defendants for three years after the contract was made, but during that time resided with her other children, and the defendants paid for her maintenance during that time without objection on their part. This shows that they understood the contract as we think it should be interpreted. We conclude, therefore, that the first finding above stated cannot be sustained.
[560]*5602. It appears that in 1878 the plaintiff was duly appointed guardian of the person of his mother; also that she is very aged and infirm. If her intellect is so enfeebled that she cannot make intelligent choice of her residence, it would seem that her guardian may choose for her. The proof is quite satisfactory that both herself and her guardian were desirous that she should live with the plaintiff; at least, from and aEter January, 1879, when she went there the last time.
There is sufficient evidence to support the finding that the plaintiff maintained Mrs. Houghton gratuitously up to January, 1879. The testimony is conflicting on the subject, and quite evenly balanced. In such a case the rule is that the finding must stand. But in respect to the plaintiff’s expenditures in that behalf after January, 1879, there is no conflict in the testimony. The defendant husband admits in his testimony that in that month the plaintiff made claim upon the defendants for the maintenance of his mother at the rate of $125 per annum. There is no foundation, therefore, for the finding that the plaintiff supported her gratuitously, so far as the expenses of her maintenance after that date are concerned. To that extent the finding cannot be upheld.
III. It is argued by the learned counsel for-the defendants that this action at law cannot be maintained by the plaintiff to recover for the support of Mrs. Houghton; that if he has any remedy, it is in equity only. The argument is founded upon the assumption that the $1,000 paid to the defendants by Aaron Houghton, pursuant to the contract of May 29, 1875, is a trust fund in their hands, of which Mrs. Houghton is the beneficiary; and that this action was brought to charge that fund.
Granting the soundness of the premises, there would be great force in the argument. But we do not think that the $1,000 is a trust fund in the hands of the defendants. They expressly accepted it in full satisfaction for the support and maintenance of Mrs. Houghton. There is nothing in the con[561]*561tract that looks like a trust except the clause requiring the unexpended money to be kept on interest for the purposé of increasing the amount so paid to the defendants for the benefit of Mrs. Houghton. It is reasonable to believe that this clause was inserted as a security or guaranty that the fund should not be squandered, but that it and the accumulated interest should be safely kept for the, uses and purposes intended. Had the parties intended to create a trust, very different language would have' been employed. We think the 'money belongs absolutely to the defendant. Had Mrs. Houghton died after the contract was made, and before the defendants had expended a dollar of it, neither Aaron Houghton nor the heirs of Mrs. Houghton could have recovered the money of the defendant. The money was paid absolutely and unconditionally to them, and it thereby became absolutely and unconditionally their money. The consideration for such payment was their agreement to support and maintain Mrs. Houghton. An action may be maintained in a proper case for a breach of such agreement, at not to charge the defendants as trustees in respect to the money paid them as the consideration for their agreement.
The rule is thoroughly established in this state and elsewhere, that when one person, for a valuable consideration, engages with another to pay money to or.do any other act for the benefit of a third person, the latter may maintain an action against such promissor for a breach of his engagement. Hodson v. Carter, 3 Pin., 212; Cotterill v. Stevens, 10 Wis., 422; Cook v. Barrett, 15 Wis., 596; Kimball v. Noyes, 17 Wis., 695; Putney v. Farnham, 27 Wis., 187. This rule applies as well to covenants under seal as to simple contracts. McDowell v. Laev, 35 Wis., 171; Bassett v. Hughes, 43 Wis., 319.
The covenant of the defendants, contained in the instrument of May 29, 1875, is, in substance and legal effect, a covenant to pay to any person with whom Mrs. Houghton chooses to [562]*562reside, the expenses incurred by such person for her maintenance, within the limitation of the contract, which is $125 per annum, unless, in case of her sickness or other pressing necessity, more shall be required. We think the plaintiff is within the rule above stated in respect to the expenses incurred by him for her support after January, 1879, and may maintain this action therefor. Of course he cannot recover expenses gratuitously incurred. Neither can Ire recover more than at the rate of $125 per annum, unless he proves the facts which, under the contract, justify and require a larger expenditure. The testimony preserved in the bill of exceptions docs not satisfactorily show that such facts existed after January, 1879.
The referee found the aggregate amount of all the expenses incurred by the plaintiff on account of his mother’s maintenance, but not of the portion thereof incurred after January, 1879. We are unable to determine such portion from the testimony. A new trial must therefore be ordered. This is a controversy between a brother and a sister and her husband, over the cost of the food which their aged mother eats, the garments which she wears, and the medicines which her infirmities require.
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■ The following opinion was filed February 7,1882:
Lyon, J.
I. A question of practice will first be disposed of. The court did not, in express terms, deny plaintiff’s motion to set aside the report of the referee; and it is claimed [559]*559that the omission is fatal to the judgment. Fairbank v. Newton, 46 Wis., 644, is cited to support this position. The precise point decided in that case is, that confirmation of the report of the referee must precede a judgment entered pursuant to such report, or the judgment cannot be upheld. In this case the report as modified was confirmed by the court. In substance and effect such confirmation was a denial of the motion to set the report aside. It was so held in Lemke v. Daegling, 52 Wis., 498; The cases are not distinguishable,
II. The judgment of the circuit court is based upon two propositions found by the court, to wit: first, that the defendants were ready and willing to furnish Mrs. Houghton suitable and proper maintenance at their home, and were not bound by their covenant to furnish it elsewhere; and second-, that the expenses incurred by the plaintiff for the maintenance of his mother were incurred gratuitously. If either of these findings is correct, the judgment should not be disturbed.
1. The contract of May 29, 1875, fairly construed, we think, gives Mrs. Houghton the right to. reside where sh.e pleases, and to charge the defendants to the exteut of $125 jyer annum for her maintenance, and in case of her sickness or other pressing necessity for a larger sum. By the terms of that instrument Aaron Houghton covenanted that his wife should have the right- to choose her own residence at her pleasure, and no right is reserved therein to the defendants to control her in that behalf. In fact, according to the testimony of the defendant husband, Mrs. Houghton did not reside with the defendants for three years after the contract was made, but during that time resided with her other children, and the defendants paid for her maintenance during that time without objection on their part. This shows that they understood the contract as we think it should be interpreted. We conclude, therefore, that the first finding above stated cannot be sustained.
[560]*5602. It appears that in 1878 the plaintiff was duly appointed guardian of the person of his mother; also that she is very aged and infirm. If her intellect is so enfeebled that she cannot make intelligent choice of her residence, it would seem that her guardian may choose for her. The proof is quite satisfactory that both herself and her guardian were desirous that she should live with the plaintiff; at least, from and aEter January, 1879, when she went there the last time.
There is sufficient evidence to support the finding that the plaintiff maintained Mrs. Houghton gratuitously up to January, 1879. The testimony is conflicting on the subject, and quite evenly balanced. In such a case the rule is that the finding must stand. But in respect to the plaintiff’s expenditures in that behalf after January, 1879, there is no conflict in the testimony. The defendant husband admits in his testimony that in that month the plaintiff made claim upon the defendants for the maintenance of his mother at the rate of $125 per annum. There is no foundation, therefore, for the finding that the plaintiff supported her gratuitously, so far as the expenses of her maintenance after that date are concerned. To that extent the finding cannot be upheld.
III. It is argued by the learned counsel for-the defendants that this action at law cannot be maintained by the plaintiff to recover for the support of Mrs. Houghton; that if he has any remedy, it is in equity only. The argument is founded upon the assumption that the $1,000 paid to the defendants by Aaron Houghton, pursuant to the contract of May 29, 1875, is a trust fund in their hands, of which Mrs. Houghton is the beneficiary; and that this action was brought to charge that fund.
Granting the soundness of the premises, there would be great force in the argument. But we do not think that the $1,000 is a trust fund in the hands of the defendants. They expressly accepted it in full satisfaction for the support and maintenance of Mrs. Houghton. There is nothing in the con[561]*561tract that looks like a trust except the clause requiring the unexpended money to be kept on interest for the purposé of increasing the amount so paid to the defendants for the benefit of Mrs. Houghton. It is reasonable to believe that this clause was inserted as a security or guaranty that the fund should not be squandered, but that it and the accumulated interest should be safely kept for the, uses and purposes intended. Had the parties intended to create a trust, very different language would have' been employed. We think the 'money belongs absolutely to the defendant. Had Mrs. Houghton died after the contract was made, and before the defendants had expended a dollar of it, neither Aaron Houghton nor the heirs of Mrs. Houghton could have recovered the money of the defendant. The money was paid absolutely and unconditionally to them, and it thereby became absolutely and unconditionally their money. The consideration for such payment was their agreement to support and maintain Mrs. Houghton. An action may be maintained in a proper case for a breach of such agreement, at not to charge the defendants as trustees in respect to the money paid them as the consideration for their agreement.
The rule is thoroughly established in this state and elsewhere, that when one person, for a valuable consideration, engages with another to pay money to or.do any other act for the benefit of a third person, the latter may maintain an action against such promissor for a breach of his engagement. Hodson v. Carter, 3 Pin., 212; Cotterill v. Stevens, 10 Wis., 422; Cook v. Barrett, 15 Wis., 596; Kimball v. Noyes, 17 Wis., 695; Putney v. Farnham, 27 Wis., 187. This rule applies as well to covenants under seal as to simple contracts. McDowell v. Laev, 35 Wis., 171; Bassett v. Hughes, 43 Wis., 319.
The covenant of the defendants, contained in the instrument of May 29, 1875, is, in substance and legal effect, a covenant to pay to any person with whom Mrs. Houghton chooses to [562]*562reside, the expenses incurred by such person for her maintenance, within the limitation of the contract, which is $125 per annum, unless, in case of her sickness or other pressing necessity, more shall be required. We think the plaintiff is within the rule above stated in respect to the expenses incurred by him for her support after January, 1879, and may maintain this action therefor. Of course he cannot recover expenses gratuitously incurred. Neither can Ire recover more than at the rate of $125 per annum, unless he proves the facts which, under the contract, justify and require a larger expenditure. The testimony preserved in the bill of exceptions docs not satisfactorily show that such facts existed after January, 1879.
The referee found the aggregate amount of all the expenses incurred by the plaintiff on account of his mother’s maintenance, but not of the portion thereof incurred after January, 1879. We are unable to determine such portion from the testimony. A new trial must therefore be ordered. This is a controversy between a brother and a sister and her husband, over the cost of the food which their aged mother eats, the garments which she wears, and the medicines which her infirmities require. It banishes the daughter from her mother’s presence and society, and deprives the latter of those kindly offices which a daughter can best bestow. It -plants the seeds of bitterness and hate in the family, and banishes sympathy and love. It is an unseemly controversy,.and ought to be ended at once. No doubt the parties regret that it exists, and would gladly terminate it and resume their former pleasant fraternal relations. We shall be pardoned for earnestly counselling them to do so, and to that end to make mutual concessions, and, if necessary, to avail themselves of the aid and advice of discreet mutual friends.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.
[563]*563Upon a motion for a rehearing there were briefs, by Button Brothers for the appellant, and by Edwin White Moore for the respondents.
For the respondents it was argued that Caroline S. Milburn is and was a married woman and not liable on the contract. Manhattan B. & M. Co. v. Thompson, 58 N. Y., 80; Robinson v. Rivers, 9 Abb. Pr. (N. S.), 144; Nash v. Mitchell, 71 N. Y., 199; McVey v. Cantrell, 70 id., 297; Huyler v. Atwood, 26 N. J. Eq., 504; Heath v. Van Cott, 9 Wis., 516; Yale v. Dederer, 18 N. Y., 265; Todd v. Lee, 15 Wis., 368; Wells on Mar. Women, sec. 316; Harshberger v. Alger, 31 Gratt., 52 ; O'Daily v. Morris, 31 Ind., 111 ; Bank v. Partee, 99 U. S., 325; Whitworth v. Carter, 43 Miss., 61; Barnum v. Young, 10 Neb., 309; Maguire v. Maguire, 3 Mo. App., 458; Hansee v. De Witt, 63 Barb., 53; Pippen v. Wesson, 74 N. C., 437; Stillwell v. Adams, 29 Ark., 346; West v. Laraway, 28 Mich., 464; Neef v. Redmon, 12 Reporter, 434. This contract cannot be held to be for her benefit, nor has it any on-nection with her separate property. Being signed by husband and wife, it is the contract of the husband alone. Shartzer v. Love, 40 Cal., 93; Swasey v. Antram, 24 Ohio St., 87.
The motion was disposed of by the following opinion filed April 5, 1882:
The judgment in this action, for the defendants, was reversed as to both of them. The defendant Caroline S. now moves for a rehearing of the cause, on the ground that she was a married woman when the contract which is the basis of thé judgment was entered into, and hence that she is not bound by it. This point was made in the brief of counsel for the defendants, but was not argued, and it was not noticed in the opinion reversing the judgment.
In Dayton v. Walsh, 47 Wis., 113, it was held that a married woman, having no separate estate, might purchase a farm of some person other than her husband, entirely on credit, and [564]*564the farm and proceeds thereof would constitute her separate property.
In Conway v. Smith, 13 Wis., 125, it was held that a married woman is liable in actions at law on her contracts relating to her separate estate, necessary or convenient to its enjoyment. I3y chapter 155, Laws of 1872, the earnings of a married woman, except for labor performed for her husband, are declared to be her.separate property. R. S., p. 660, sec. 2343.
It was held in Meyers v. Rahte, 46 Wis., 655, that since the enactment of that statute a married woman may carry on business in her own name and for her own benefit, and may make valid contracts in respect thereto, which may be enforced at law in actions against her. See also Krouskop v. Shontz, 51 Wis., 204.
The principles of the above cases apply to this case. The one-half interest of Mrs. M.ilbwm in the $1,000 which she and her husband received from her father for the future maintenance of her mother, constituted her separate estate, the same as a stock of goods, or a farm purchased by her on credit, would be separate estate. The money came from a source other than her. husband ; and it is not perceived how the circumstance that her husband had a joint interest with her in the money can affect her liability. Her interest in the money being her separate estate, it follows that an action at law may be maintained against her, jointly with her husband, on their covenant to support her mother. This action is based upon that covenant, and we hold that it may be maintained against her as well as against her husband.
By the Court. — The motion for a rehearing is denied.