Allen v. Mulkey

• Decision Date: 15 June 1929
• Docket Number: (No. 10557.)
• Parties: ALLEN et al. v. MULKEY et al.
• Court: Texas Court of Appeals

19 S.W.2d 936

ALLEN et al. v. MULKEY et al.

(No. 10557.)

Court of Civil Appeals of Texas. Dallas.

June 15, 1929.

Opinion Modified July 6, 1929.

Rehearing Denied July 13, 1929.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by Lydia Allen and others against Ike Mulkey and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Cockrell, McBride, O'Donnell & Hamilton, of Dallas, for appellants.

Crane & Crane, of Dallas, for appellees.

VAUGHAN, J.

Appellants were plaintiffs and appellees defendants in the court below. This is an appeal from a judgment sustaining a general demurrer addressed by appellees to the following amended original petition filed by appellants:

"Now come the plaintiffs, Lydia Allen, joined pro forma by her husband, C. L. Allen, Mrs. Odessa Wilson, a widow, Mrs. Cyrene Duff, joined pro forma by her husband, F. H. Duff, Mrs. Adell Fowler, joined pro forma by her husband, L. P. Fowler, and Fletcher Allen, all plaintiffs residing in Dallas county, Texas, and complain of the defendants, as follows, whose residences, so far as plaintiffs know, are set forth opposite the respective names: Ike Mulkey, Pickett Mulkey, Lattie Mulkey, Mrs. Addie Ward, a widow, Fletcher Ward, L. A. Patterson, a feme sole, Mrs. Jett Parks, a widow, Mrs. M. E. Caffee, a widow, Mrs. Hettie Field Herrington and husband, Bert Herrington, Mrs. Lela Wells and husband, E. L. Wells, Mrs. Marian Getzwiller and husband, P. C. Getzwiller, Mrs. Emma Arnold and husband, Claude Arnold, Frank Calfee, Mrs. Fleta Beaty and husband, Wilber Beaty, Frank Mitchell Gray, Mrs. Alice Gillespie, and husband, Jack Gillespie, Mrs. Birdie Lett, a widow, Mrs. Grace Gilbert and husband, R. R. Gilbert, Fletcher Mulkey, E. P. Hawkins, F. L. Hawkins [residences as alleged omitted], the three last mentioned being sued herein in their individual capacities, as well as in the capacity of trustees (only) of the estate of Mrs. A. T. Mulkey, deceased, under appointment of the last will and testament of Mrs. A. T. Mulkey, of date March 30, 1925, as probated in Dallas county, Texas, and plaintiffs for cause of action represent as follows:

"(1) That J. F. Mulkey and A. T. Mulkey were husband and wife at and long prior to the date of the birth of the said Lydia Allen, and were such up to the date of their respective deaths, the said J. F. Mulkey having died intestate at Dallas, Texas, on the ____ day of January, 1925, and the said A. T. Mulkey having died at Dallas, Texas, on the ____ day of June, 1927. That the said J. F. Mulkey and A. T. Mulkey were ever childless.

"That the plaintiff Lydia Allen was the natural child of Thomas Smith and ____ Smith; that in or about the year 1872, when the said Lydia was of about the age of seven years, her mother having died and her father being ill-prepared to look after her, the said J. F. Mulkey, having become enamoured of her, did desire to adopt her; that after entering into negotiations with the said Lydia's father, Thomas Smith, the said J. F. Mulkey obtained the consent of the said Lydia's father that he might legally adopt the said Lydia as his child, under the name of Lydia Mulkey, she to become a part of the Mulkey family, live with them as a member of the family as if she were the only child of the said Mulkeys, with the understanding and agreement of the said J. F. Mulkey that upon the death of the survivor of the said J. F. or A. T. Mulkey the said Lydia should be and become entitled to the said J. F. Mulkey's one-half of the property, as if she were his natural child; that the said J. F. Mulkey, beginning shortly after the said Lydia Allen began to live in his family, made like assurances to the said Lydia, and gave her to understand that she was his adopted child and would become entitled to his property, and the said Lydia throughout all the duration of her remaining as a child in the family of the said J. F. Mulkey and wife, rested and abided under and in the light of such assurances and agreement and bestowed her love and affection and rendered services as his child, to the said J. F. Mulkey, implicitly relying upon the assurances of the said J. F. Mulkey that such was his understanding and agreement with her.

"(2) In or about the year 1872, when the plaintiff was a child of tender years, not more than seven years of age, J. F. Mulkey entered into a written contract with Thomas Smith, the natural father of the plaintiff, Lydia Allen, by the terms of which contract the said J. F. Mulkey specifically, in writing, contracted and agreed with the said Thomas Smith that, if he, the said Thomas Smith, would surrender the child Lydia, plaintiff herein, to the said J. F. Mulkey, he the said Mulkey would execute a statutory adoption of the plaintiff, that he the said Mulkey, and his wife, would rear said child as their own, and that he would give said child, the plaintiff herein, his one-half of all the property belonging to himself and his wife, upon the death of the survivor of the said J. F. Mulkey and wife. Said contract provided for the absolute and complete termination of the relation of father and child between said Thomas Smith and said child, and the delivery to the said Mulkey and wife of the exclusive and full custody and control of her. Immediately upon the execution of said contract, and in compliance with the understanding and agreement therein expressed, substantially to the effect that her father should surrender her custody completely and unconditionally to the said Mulkey and his wife, to be reared in their home as their own child, and to be adopted by them on the conditions above stated, to the effect that said child, the plaintiff, should receive the said J. F. Mulkey's part of the property at the death of the survivor of himself and his said wife, delivery of said child and the custody of her were given over to the said J. F. Mulkey and his wife, and thereby said written contract on the part of the said Thomas Smith became fully executed.

"Thereafter, while the child Lydia, plaintiff herein, was living in the family of the said J. F. Mulkey and wife, as their daughter, and bestowing upon them all the affections of a daughter, and performing all the services and duties properly to be performed by a daughter, the said J. F. Mulkey specifically and definitely agreed with said plaintiff that, in consideration of her being and remaining in his home in the relation to him of child to parent, as she did until her marriage, she should receive, upon his death, or upon the death of his wife, should the latter survive him, all his one-half of the property belonging to the community estate of himself and wife, and that said contract and understanding and agreement between said plaintiff and the said Mulkey were repeatedly reaffirmed by the said J. F. Mulkey through express agreements, declarations and course of conduct.

"(3) These plaintiffs are unable to state with more particularity than as in this petition set forth, the terms of the contracts and agreements upon which they rely, the date thereof, or the circumstances under which made, save that said contracts and agreements to adopt this plaintiff, Lydia Allen, and to give her the said J. F. Mulkey's one-half of his property, all as set forth herein, were made and entered into originally about the year 1872, when this plaintiff was of the age of about seven years, and said agreements and contracts were, as these plaintiffs believe and allege the fact to be, partly oral and partly in writing. That said agreement to adopt this plaintiff and for her to have said property, in so far as same was partly in writing, was in the form of a written agreement executed by the said J. F. Mulkey along or about said time, the exact date being unknown to this plaintiff. Said written agreement was in possession of the said J. F. Mulkey and as this plaintiff is informed and believes, thereafter in the possession of his wife, A. T. Mulkey, and same should now be in the possession of the defendants sued herein, and defendants are given notice to produce same upon the trial of this cause, or secondary evidence of same and the contents thereof will be offered. That said agreement of the said J. F. Mulkey to adopt this plaintiff, and for plaintiff to have his one-half of said property, all as set forth herein, was made and entered into by the said J. F. Mulkey, not only on or about the year 1872, or thereabouts, but many times thereafter repeated and reaffirmed by the said J. F. Mulkey by express agreement, declaration and course of conduct, all as set forth more particularly elsewhere in this petition. That the plaintiffs are unable to state with more particularity the terms, dates or conditions of such agreements or contracts, whether oral or in writing, but plaintiffs upon information and belief allege the facts to be that the defendants, or some of the defendants, have long known of such contracts and agreements, and have more specific and particular information concerning same, and the contents thereof, than have these plaintiffs. That besides the contracts and agreements, oral or written, in this paragraph (III) mentioned, the said J. F. and A. T. Mulkey did execute a further written instrument dated August 8th, 1923, as set forth in Paragraph VII hereof; that said instrument was in the possession of the said J. F. Mulkey and A. T. Mulkey, and is or should be in the possession of the defendants at this time, and defendants are given notice to produce same upon the trial hereof, or secondary evidence of the contents thereof will be offered.

"That in obedience to the said understanding and agreements, the said Lydia's own father did surrender to the said J. F. Mulkey the custody and control of the said Lydia, himself completely relinquishing such control and custody, and continuously thereafter until her marriage to the plaintiff, C. L. Allen, the said Lydia so continued as a member of the family of the...