Cubley v. Barbee

• Decision Date: 30 May 1934
• Docket Number: No. 5777.,5777.
• Citation: 73 S.W.2d 72
• Parties: CUBLEY et al. v. BARBEE et al.
• Court: Texas Supreme Court

73 S.W.2d 72

CUBLEY et al. v. BARBEE et al.

No. 5777.

Supreme Court of Texas.

May 30, 1934.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Mrs. Jessie Cubley and husband against Mrs. J. H. Barbee and others. Judgment for plaintiffs was reversed by the Court of Civil Appeals [25 S.W.(2d) 689], and they bring error.

Judgment of the Court of Civil Appeals reversed, and that of the district court reformed and affirmed.

Lee R. Stroud, J. C. Patton, and W. H. Clark, Jr., all of Dallas, for plaintiffs in error.

Claude C. Westerfeld, Carden, Starling, Carden & Hemphill, Handley & Handley, and Davis & Hatchell, all of Dallas, for defendants in error.

CURETON, Chief Justice.

Mrs. Jessie Cubley, joined pro forma by her husband, brought this suit against Mrs. J. H. Barbee, W. M. Spillars, and others for the establishment of claimed rights in the estate of Mrs. M. L. Leonard. Mrs. Leonard (formerly Mrs. B. F. Thyng) died intestate in the city of Dallas in 1927, leaving an estate consisting of real estate, cash, and other personal property, valued at approximately $195,000.

Mrs. Cubley's claim is predicated upon an adoption or attempted adoption, while the defendants in error claim to be heirs of a deceased son of Mrs. Leonard.

Mrs. Jessie Cubley was born Jessie Partridge, on July 4, 1882, in Bay City, Mich. Her father died in 1884. After his death, in the fall of 1884 or early in 1885, Mrs. Partridge (Jessie's mother), with Jessie, then less than 3 years of age, came to Longview, Tex., where Mrs. Partridge's father, a railroad man, and his wife, the stepmother of Mrs. Partridge, then lived, and stayed about three months. She sought and obtained employment through an employment agency with a Mrs. Brown, who ran a boarding house in Fort Worth, Tex. Her stepmother not being able to or declining to care for the 3 year old child, Jessie, Mrs. Partridge took the child to Fort Worth and kept her at the boarding house where employed. She worked at Fort Worth four months, became ill, and returned to her father's and stepmother's home at Longview, and, being ill and unable to care for Jessie, left her with Mrs. Brown, who said she would care for her and was "coming North in the course of a few months and she would bring the child." From Longview, where she remained three weeks, Mrs. Partridge went to East Saginaw, Mich., and from there to Flynt in the same state. Before leaving Longview, however, she received a letter from Mrs Brown asking her to send a power of attorney relative to the custody of Jessie, as parties wanted to take the child, but would not do so without some authority. She afterwards learned that by virtue of the power of attorney Mrs. Brown had turned the child over to Mrs. B. F. Thyng, generally known in this record as Mrs. Leonard. While working at Flynt, Mich., in January, 1888, Mrs. Partridge received a letter from Mrs. Thyng at Chicago, forwarded through her father at Longview, Tex., stating that the child, Jessie, was very sick and not expected to live. She left Flynt that night for Chicago, and found the child, who was better, at a hotel with Mr. and Mrs. Thyng. She remained at the hotel with Mr. and Mrs. Thyng about a week. During this time they told Mrs. Partridge how much they thought of Jessie, that they thought as much of her as if she were their own child, and that they would like to "keep her as their own." They stated they were able to and would educate, clothe, and care for her. In fact, they were then giving her music lessons, and had her teacher present, while Mrs. Partridge (at the time of this trial she was Mrs. Fuller) was in Chicago. Mrs. Partridge at first declined to sign and acknowledge the relinquishment of the child, but finally, on the day before she left the city, did do so; and Mr. and Mrs. Thyng signed and acknowledged an "adoption paper." As to the circumstances preceding the signing of this paper, Mrs. Partridge in part said:

"I think the second day was the first time Mr. Thyng said anything about adopting the child. He said he didn't have any children of his own, and thought as much of Jessie as if she was his own child. They said they would like to adopt her. I don't know if I can remember all they said about adopting her. He said they wanted to adopt her and I told them I wouldn't sign any papers of adoption; then every day after that they talked about it until at last I decided I would let them adopt her." (Italics ours.)

The contents of this "adoption paper" and the "relinquishment" of Jessie are not before the court, except by the testimony of Mrs. Partridge and repeated statements of Mrs. Thyng made to other persons. Both instruments were taken by Mr. and Mrs. Thyng at the time, and have never been found. As to their contents, Mrs. Partridge in part testified:

"As to whether any instrument was drawn to adopt my daughter by those people, Thyng and wife, they had papers with them that they had brought from Texas.

"I say a paper was presented to me about adoption. It was not signed. After it was presented to me, it was signed by Mr. and Mrs. Thyng. I signed a paper; I signed a paper of relinquishment; relinquishment of my child to them; I signed a relinquishment paper and they signed an adoption paper. Mr. and Mrs. Thyng took both papers; they kept the papers; they kept both of the papers, the paper that they signed and the paper I signed.

"Mr. Thyng came in one night after supper and brought in a notary and the papers were signed before him; they were acknowledged before the notary public. * * *

"I did not see that paper until the day I signed it. Mr. Thyng took it out of his pocket when I first saw it. That was the last day I was there. I didn't leave until the next morning; I didn't leave that night; I left Chicago in the morning.

"He took the paper out of his pocket and had the notary with him at the time. I had told them I would sign the relinquishment. I told them I wanted them to bring Jessie up right; educate her and take care of her. I did not tell them what kind of a paper I wanted them to sign; I didn't know anything about it. They said they would sign the adoption papers.

"They took the paper out and read it over and the notary wrote on that; it seems that the paper they had brought didn't have just what they wanted to do for the child, and the latter part, of what I gave testimony was in that paper, was written on there; the notary wrote it on there. I think the rest of it was typewritten. I don't recollect what was in the typewritten part only in regard to taking Jessie as their heir; that was in the typewritten part. This part I have testified about was in the handwriting of the notary. After he wrote it, they signed it; Mrs. Thyng signed it first and Mr. Thyng signed it, and the notary asked them if they were signing it of their own free will and they said they were, and he wrote that in it. I read the paper before I signed it. I read it before the notary put this in, that I have testified about, and read it afterwards. * * *

"That night after signing the papers, I made a request to them: I said, `Mrs. Thyng, do you think this paper will be all right?' I said, `You said you brought this paper from Dallas.' I said, `It has been signed here in Chicago and I am from Michigan,' and she said that she, when she came back, she would have it examined and see if it was all right, and she would write me, but she didn't write me; it went along a number of months and I wrote her in Dallas.

"She told me she brought the paper with her from Dallas.

"I signed the relinquishment papers at the same time, and acknowledged them before the same notary, while we were all there together in the room. * * *

"I say I had the promise of Mrs. Thyng that she would write me about this paper. It went along about three or four months and she didn't write me and I wrote her, to Dallas. I addressed the letter, `Mrs. M. L. Thyng, Dallas.' No street number; I didn't know her street number. Then I got a letter from her; not right away, but quite a while after that, that I got a reply. * * *

"Mrs. Thyng wrote me and said she had had the papers examined by a lawyer here in Dallas, and she said they were all right, and she said they had been properly recorded and I could rest assured she would do what she claimed she would. * * *

"I testified that I read the adoption papers before I signed them. I read the ones that they signed. The papers stated that they took Jessie for their heir, and also said that at Mr. Thyng's death she was to have half of what they left; the other half was to go to Mrs. Thyng's son; that Jessie was to be taken as their heir, and after their death she was to have half of the estate; the other half to go to Mrs. Thyng's son.

"The paper that I signed was that I relinquished her to them; that they were to take her and bring her up, and that I was to have nothing further to do with her; the paper that I signed was that I was giving Jessie up to them. That she would, by me signing the paper, that I would have nothing more, nothing furthermore to say about her. * * *

"I have never seen the adoption paper since that time. As to whether those papers have been filed in Dallas County, all I know is what Mrs. Thyng said in that letter. The last I seen the adoption paper was when I signed it in Chicago. I never seen it after that. I have never made inquiry to find out where it is; in fact, I never thought that the paper was lost. I supposed, of course, it was recorded, the way she said she had." (Italics ours.)

After the execution of the instruments referred to above, the child, Jessie, who had been in the custody of Mr. and Mrs. Thyng for some three years previous, continued in their custody, and was supported and cared for by Mrs. Thyng until Jessie married some nine years later. On the day following the execution of the instruments, Mrs. Partridge left Chicago, and afterwards lived in Michigan and Ohio. She continued ill for...