The complaint as construed by plaintiffs’ counsel seeks specific performance of an alleged contract between the defendant Nellie Tholens, the grandmother of plaintiffs, and Nellie Tholens Seager, deceased, who was plaintiffs’ mother. The other defendants are children of the defendant Nellie Tholens.
The complaint alleges that Peter Tholens died September 20, 1900, leaving him surviving his widow, the defendant Nellie Tholens, and his children, the defendants Elizabeth C. Tholens, Charles P. Tholens and Eugene A. Tholens, and Susanne Tholens and Nellie Tholens Seager, his only heirs at law and next of kin; he owned two pieces of real property in the city of Syracuse which, by his will, he devised to his widow, the defendant Nellie Tholens; that while this devise was absolute in form, the-true intent of the testator was that the property should go to said Nellie Tholens during her natural life and upon her death to her heirs; that in September, 1914, defendant Nellie Tholens conveyed one of these parcels of land in- exchange for another parcel in the same vicinity, and subsequently and about May 2, 1915, conveyed to her codefendants the remaining parcel and the parcel received by her on such exchange. It is alleged that this last conveyance was obtained from said Nellie Tholens by her codefendants without consideration and by fraud and undue influence and at a time when she Was incompetent to transact business, and the title now remains in said other defendants. It is further
*319alleged that plaintiffs’ mother, Nellie Tholens Seager, died intestate December 8, 1906, leaving her surviving the plaintiffs, her only children and heirs at law; that before her death and after the death of said Peter Tholens, a contract was made between Nellie Tholens and Nellie Tholens Seager with reference to such real property. It is by virtue of this contract that plaintiffs claim to have a standing to maintain this action. We quote in full the allegation in reference to" this contract:
“ Ninth. On information and belief, that after the death of the said Peter Tholens, his said widow, the defendant Nellie Tholens, for a valuable consideration, agreed with her daughter Nellie Tholens Seager, now deceased, the mother of these plaintiffs, to devise or convey the said property, or her undivided share therein to her, or in the event of her death to devise or convey the same to these plaintiffs and particularly to the plaintiff C. Eugene Seager, Jr.”
It is also alleged that the defendants, other than the defendant Nellie Tholens, have repeatedly admitted that Peter Tholens intended to devise his property as above stated and consented and acquiesced in such disposition thereof, and have repeatedly recognized the alleged interest of the plaintiffs herein “ and consented and agreed that upon the death of the defendant Nellie Tholens, the plaintiffs should receive and become the owners of the interest claimed by their deceased mother in such property.”
The relief demanded is: First. That it be adjudged that the execution of the deeds by the defendant Nellie Tholens to her codefendants was obtained by fraud and undue influence and were void, and that they be delivered up and canceled. Second. If said deeds are adjudged to be valid, then the defendants other than the defendant Nellie Tholens be ordered and directed to convey one undivided fourth part of said premises to the plaintiffs, or such other right or interest therein as they are entitled to. Third. That defendants be enjoined from disposing of the property dining the pendency of the action. Fourth. That defendants be required to account for the rents and profits. Fifth. That plaintiffs have such other and further relief as shall be' just and equitable.
The defendants by their answer put in issue the allegar *320tions as to the intention of Peter Tholens, the contract between Nellie Tholens and Nellie Tholens Seager, the fraud and undue influence, and incompetency of Nellie Tholens, and, in fact, all the allegations upon which plaintiffs base their right of recovery, except the fact that Nellie Tholens did make the exchange of one parcel of real estate and had conveyed the other parcel and the one received in exchange to her codefendants.
According to the construction placed upon the complaint by plaintiffs’ counsel, the only cause of action alleged is for specific performance of the alleged contract. He concedes that the plaintiffs would have no standing independent of that contract fco maintain an action as heirs at law of their mother to set aside the deeds which Nellie Tholens has made to her codefendants, even though they were obtained by fraud and undue influence.
Such a cause of action can be asserted only by Nellie Tholens while she lives, or a committee of her estate if she is adjudged incompetent. But the claim is that these allegations are proper as showing grounds for the present enforcement of the contract.
We need to consider only the question as to whether the complaint states a cause of action for the specific performance or other enforcement of the alleged contract.
We think it is insufficient. It seeks enforcement of an alleged contract between the defendant Nellie Tholens, the grandmother of plaintiffs, and Nellie Tholens Seager, deceased, who was plaintiffs’ mother.
The contract alleged is that “ the defendant Nellie Tholens, for a valuable consideration, agreed with her daughter Nellie Tholens Seager, now deceased, the mother of these plaintiffs, to devise or convey the said property, or her undivided share therein to her, or in the event of her death to devise or convey the same to these plaintiffs and particularly to the plaintiff C. Eugene Seager, Jr.”
It is not alleged that plaintiffs were parties to the contract or furnished the consideration or were privies to it. On the contrary, the plain import of the allegation is that the valuable consideration for the promise proceeded from the promisee, Nellie Tholens Seager, alone. Nor is it alleged that *321the contract was made for the benefit of plaintiffs, or that at the time plaintiffs’ mother was under any equitable or legal liability or obligation to plaintiffs which the contract was intended to fulfill. It is not alleged that plaintiffs, or either of them, were then infants entitled to support from their mother.
That performance of the contract would benefit plaintiffs is not alone sufficient to give them a standing to enforce it; nor is their kinship to the parties sufficient, unless their mother was under some duty or obligation to them which by the contract "she undertook to discharge.
A mother’s contract with a third party to provide support for her infant children can, no doubt, be enforced by the children, but the fact of this infancy from which alone the mother’s obligation or duty springs must be alleged.
- So far as appears from this complaint, no such obligation or duty exists. The mother owed no legal duty to plaintiffs •to provide them with an inheritance, and this seems to have been the object of her contract.
On the face of this complaint, plaintiffs are volunteers seeking to enforce a contract between other parties in which they have no legal interest. The following authorities, we think, support these views: Durnherr v. Rau (135 N. Y. 219); Vrooman v. Turner (69 id. 280); Townsend v. Rackham (143 id. 516); Sullivan v. Sullivan (161 id. 554); Gates v. Dames (8 N. Y. Supp. 287). In so far as the decision in Babcock v. Chase (92 Hun, 264) is predicated upon the relationship of the parties, it is not in harmony with Durnherr v. Rau (supra) and Buchanan v. Tilden (158 N. Y. 109) where the relation of husband and wife was considered as alone insufficient. The decision in Babcock v. Chase is, however, well supported upon other grounds. (See Gardner v. Denison, 217 Mass. 492; 51 L. R. A. [N. S.] 1108, and cases cited in note.)
The judgment and order should be affirmed, with costs.
All concurred, except Lambert and Merrell, JJ., who dissented in an opinion by Merrell, J.