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Naimo v. Fianza

Decided: December 20, 1976.


Kentz, J.s.c.


Plaintiff, individually and as guardian ad litem of Mario Bruno, Jr. (Bruno, Jr.), seeks specific performance of an oral agreement allegedly made by Mario Bruno (Bruno) to make a testamentary gift for the benefit of Bruno, Jr.

The controlling facts are not disputed. It appears from the evidence that plaintiff, while seeking employment in this country, met Bruno in 1949. He was the owner of the business enterprise where plaintiff became employed. On occasion Bruno would drive the plaintiff home from work, and in the summer of 1950 while his family was away on vacation he invited the plaintiff out for dinner. This was repeated several times thereafter and during the course of these meetings Bruno engaged in conversations about his wife and adopted child. He indicated that his reason for the dinner meetings with plaintiff was because he disliked eating alone and was lonesome. This relationship between plaintiff and Bruno continued and he then started buying her presents and showing other acts of kindness and affection. He lamented the fact that he was not able to have children with his wife and he frequently expressed his desire to have a child of his own. He asked plaintiff to have his child and she refused. Bruno kept repeating his desire

to have a child and finally offered to support any child that might be born of plaintiff. As a further inducement he said he would get a divorce from his present wife and marry plaintiff. He also promised to leave money for the child upon his death. By this time the relationship between plaintiff and Bruno had grown into a close and amorous one. In view of this, and as a result of his promises on which she relied, plaintiff changed her mind and agreed to have a child with Bruno.

Plaintiff became pregnant in 1950. She miscarried after three months of pregnancy. She testified that she saw Bruno regularly on Saturday mornings and Wednesday afternoons and continued to have sexual relations on these occasions with him in an effort to produce a child for him. Plaintiff further testified that she did not have sexual relations with any other men during this period. Not until 1963 did the plaintiff become pregnant again. Thereafter, a child was born to her on February 11, 1964. As agreed between plaintiff and Bruno, the child was named Mario Bruno, Jr. Plaintiff was admitted into the hospital under the name of Mrs. Mario Bruno. During her hospital stay Bruno visited her every day, and upon her discharge brought her home with the baby. All expenses in connection with the pregnancy and delivery of the child were paid by Bruno.

After the birth of the child Bruno paid the sum of $60 a week for support and also paid plaintiff's rent. He continued to show his great affection and love for plaintiff and his son by visiting the home each day. As the child grew older Bruno gave much of his time and attention to his son and participated as a father in many of his activities. In addition to weekly support payments he bought many gifts for Bruno, Jr. on holidays and other special occasions. He also purchased clothes for his son when they were needed.

Plaintiff testified that Bruno was "crazy" about his son. Although Bruno never actually lived with plaintiff after the child was born, he spent much of his time with plaintiff

and his son. He was a very dutiful and interested father. On various occasions he sent plaintiff and his son on summer vacations. It is abundantly clear that he had a very close and affectionate relationship with Bruno, Jr. There can be no doubt that Bruno was the father of this child.

Bruno died suddenly on October 5, 1975. He left a last will and testament which was duly admitted to probate. There was no provision made therein for the benefit of plaintiff or his son.

Plaintiff contends that there was an agreement which should be enforced by specific performance. It is well established law that a person may bind himself by contract to make a particular will. Poloha v. Ruman , 137 N.J. Eq. 167 (Ch. 1945), aff'd 140 N.J. Eq. 396 (E. & A. 1947); Hendershot v. Hendershot , 135 N.J. Eq. 232 (Ch. 1944); Davison v. Davison , 13 N.J. Eq. 246 (Ch. 1861). Equally well established is the proposition that a third-party beneficiary is himself entitled to maintain a suit for specific performance of an agreement between third persons to provide for him by will Hufnagel v. Scholp , 138 N.J. Eq. 16 (Ch. 1946); Hendershot, supra; DiGirolamo v. Di Matteo , 108 N.J. Eq. 592 (Ch. 1931). Similarly, it has been recognized that a promisee of an agreement for the benefit of a third-party donee has sufficient interest in the enforcement of the promise to entitle him to sue. Drewen v. Bank of Manhattan , 31 N.J. 110 (1959); see also, O'Neill v. Supreme Council, Amer. Leg. of Honor , 70 N.J.L. 410 (Sup. Ct. 1904); Annot. , 20 A.L.R. 3d 541 (1968). However, such agreements must be subjected to close scrutiny. Klockner v. Green , 54 N.J. 230 (1969); Hufnagel, supra.

Defendants maintain that even if there is a contract, it is illegal and unenforceable since it was made in consideration of the commission of a future ...

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