Cavanaugh v. Davis

• Decision Date: 03 January 1951
• Docket Number: No. A-2819,A-2819
• Citation: 149 Tex. 573,235 S.W.2d 972
• Parties: CAVANAUGH et al. v. DAVIS.
• Court: Texas Supreme Court

Page 972

235 S.W.2d 972

149 Tex. 573

CAVANAUGH et al. v. DAVIS.

No. A-2819.

Supreme Court of Texas.

Jan. 3, 1951.

Rehearing Denied Feb. 21, 1951.

Louis Scott Wilkerson, Sneed & Vine, Silas J. Maxwell and Anna I. Sandbo, all of Austin, for petitioners.

Archer & Archer (Fancher Archer) Austin, for respondent.

CALVERT, Justice.

This was an action to declare heirship brought in the County Court of Travis County by Annie Laurie Barrow Davis under Chapter 23, Title 54, R.C.S. 1925, in which she sought to have the court declare that she was an adopted daughter and the only heir at law of George Ann Barrow who died intestate and who, at the time of her death, was the owner of an undivided one-half interest in certain real property situated in the City of Austin.

The County Court entered judgment declaring the collateral kin of the deceased to be her heirs, and establishing the relationship of respondent to the deceased as that of niece rather than that of daughter. On appeal to the district court and in a trial before the court without the aid of a jury judgment was there entered declaring the collateral kin of the deceased to be her heirs and establishing the relationship of respondent to the deceased to be that of niece.

The Court of Civil Appeals held that the evidence conclusively established an adoption by estoppel as a matter of law and reversed the judgment of the district court and rendered judgment establishing respondent's status as a child of George Ann Barrow. 231 S.W.2d 959.

Prior to the repeal in 1931 of Arts. 42, 43 and 44 of the Revised Civil Statutes of 1925, the statutes in effect at the time this adoption is alleged to have occurred, and the enactment at the same time of statutes, Vernon's Ann.Civ.St. art. 46a, providing for adoption by judicial proceedings, the statutory method of effecting an adoption was by the execution, authentication or acknowledgment and recording by the adopting parent of a written instrument of adoption. When the statutory requirements were fully and strictly complied with the adoption was, of course, complete. Strict compliance with the statutes, however, was not in all cases essential to the creation of an adoptive status. Thus, where the parties acting in good faith under an instrument of adoption, not filed of record as required by the statute but found by the jury to have been executed and acknowledged, assumed and lived in a relationship wholly consistent with that of parent and child this Court upheld the adoptive status of the child on the ground that those claiming under the adoptive parents were estopped to deny the validity of the instrument of adoption and its recordation. It was said by the Court that to hold otherwise would work a fraud upon the rights of the child which a court of equity would not permit. Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72. Thus, also, where a child was delivered by its natural parent into the custody of others, under an agreement between the parent and the custodians that the child would be adopted, and the custodians and the child thereafter assumed and lived in a relationship wholly consistent with that of parent and child, this Court held that the adoptive status of the child would be upheld. Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77. This holding was also based upon the equitable doctrine of estoppel.

Under the statutes and the cases referred to it was incumbent upon respondent to plead and prove according to recognized rules of law and evidence that: (1) George Ann Barrow executed, acknowledged and filed a statutory instrument of adoption in the office of the County Clerk; or (2) George Ann Barrow undertook to effect a statutory adoption but failed to do so because of some defect in the instrument of adoption or in its execution or acknowledgement, or because failure to record it; or (3) George Ann Barrow agreed with respondent, or with respondent's parents or with some other person in loco parentis that she would adopt respondent. The effort to comply with the statute in the second instance and the agreement to adopt in the third instance are a necessary predicate for the interposition of the equity powers of the courts to decree an adoption by estoppel in favor of one who, acting under and by virtue of such defective proceeding or such agreement, confers affection and benefits upon the other.

In no case has this Court upheld the adoptive status of a child in the absence of proof of an agreement or contract to adopt. In the case of Jones v. Guy, supra, there were both allegations in the pleadings and substantial evidence of the existence of an agreement to adopt made by the adopters with the natural parent of the child. The necessity for the existence of a contract or agreement has been recognized by the courts of many of our states. To cite a few, see Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Hutton v. Busaytis, 326 Ill. 453, 158 N.E. 156; In re Norman's Estate, 209 Minn. 19, 295 N.W. 63; Clemons v. Clemons, 193 Okl. 412, 145 P.2d 928. For many other cases to the same effect, see 171 A.L.R. 1321; 142 A.L.R. 102; 27 A.L.R. 1350.

From the pleading on which she went to trial it is obvious that respondent recognized that the existence of an agreement to adopt her was essential to the establishment of her claim to the status of an adopted child. She alleged that 'George Ann Barrow took this plaintiff from her natural mother, Lou Cavanaugh Harvey, when plaintiff was an infant only a few days old with the understanding and agreement between Lou Cavanaugh Harvey and George Ann Barrow that George Ann Barrow would adopt plaintiff and make her her adopted daughter * * * that pursuant to such agreement and undertaking the natural mother of plaintiff delivered her to said George Ann Barrow with whom plaintiff continued to live until she was grown and married * * *'; that thereafter she lived with George Ann Barrow and her husband William Barrow as their daughter, she calling them 'mama' and 'daddy' and they introducing and holding her out to the public as their daughter; that the Barrows fed, clothed and educated her and she in turn waited on them when they were sick and did all the kinds of work they required of her and such as was ordinarily required of a child by a parent.

The record reflects without dispute that respondent was born in August or September, 1924, the natural daughter of Lindsay Harvey and Lou Cavanaugh Harvey, a sister of George Ann Barrow; that Lindsay Harvey, her father, died before respondent's birth and Lou Harvey, her mother, died when respondent was about fifteen months old; that after her mother's death respondent lived a portion of the time with George Ann (then the wife of Israel Whitley) and a portion of the time with Eugene Cavanaugh, an uncle; that having secured a divorce from Israel Whitley in June 1929, George Ann married William Barrow on August 9, 1930, and about fifteen months thereafter when respondent was about seven years of age she went to live with the Barrows where she continued to reside until George Ann's death in January, 1947, William having died in July, 1943.

Having entered judgment as heretofore indicated the trial judge, in response to a request therefor, filed findings of facts and conclusions of law. Only finding of fact Number 10 and conclusion of law Number 4 have any material bearing on the issue to be decided here. The finding of fact is as follows:

'10. The evidence is insufficient to sustain a finding that George Ann Barrow ever agreed with any person at any time to adopt the plaintiff herein.'

The conclusion of law is as follows:

'11. The necessary elements for an adoption of plaintiff by estoppel being absent, the facts do not justify a decree establishing same as prayed for by plaintiff.'

The holding of the Court of Civil Appeals that the evidence conclusively established an adoption by estoppel as a matter of law and its judgment reversing the judgment of the trial court and rendering judgment for respondent necessarily negative the existence of any evidence of probative force in support of the trial court's finding of fact Number 10. Whether there is any such evidence is a question of law which this Court may review.

Both of the parties to the alleged agreement were dead at the time of the trial and no direct evidence of the agreement was offered on the trial. The inference from the record is that the agreement was oral but no witness testified to having heard any conversation which could be made the basis of such an agreement. It was not necessary, however, that there be direct evidence of the agreement. It like any other ultimate fact could be proved by the acts, conduct and admissions of the parties and other relevant facts and circumstances. Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836; Johnston v. Eriksson, 71 S.D. 268, 23 N.W.2d 799; Roberts v. Sutton, 317 Mich. 458, 27 N.W.2d 54; Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609; 2 C.J.S., Adoption of Children, § 26, page 396; Roberts v. Roberts, 8 Cir., 223 F. 775, 138 C.C.A. 102, certiorari denied, 239 U.S. 639, 36 S.Ct. 160, 60 L.Ed. 481.

Was the agreement as alleged by respondent conclusively established by the collateral facts and circumstances in evidence? All the evidence, oral and written, offered on the issue on the trial of the case was offered by respondent. Several witnesses testified but it will be necessary to detail the testimony of but a few.

The testimony of the witnesses established without dispute that until respondent went to live with the Barrows in 1931 she went under the surname of Harvey but that within a short time thereafter she became known in the neighborhood and in school as Annie Laurie Barrow; that she was reared, cared for, clothed and educated by the Barrows and that she, in turn, performed household and other duties about the home and always called George Ann 'mama' or 'mom' and William 'dad...