Ellis v. Jesup and Wife
| Decision Date | 14 October 1875 |
| Citation | 74 Ky. 403 |
| Parties | Ellis v. Jesup and wife. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CHRISTIAN CIRCUIT COURT.
JOHN FELAND, WALTER EVANS, WINFREE & McCARROLL, For Appellant.
LANDES & CLARK, PHELPS & SON, For Appellees.
This suit in equity was instituted in the court below by George W. Jesup and Susan M., his wife, against Allen W. Ellis and James O. Ellis, on the 24th of January, 1874, and in a very extended petition the following facts are alleged substantially: That in the year 1859 the defendant Allen W. Ellis married the sister of the plaintiff, Susan Jesup; that shortly after his marriage said Ellis, with his wife, removed to the state of Missouri; that on the 14th of August, 1860, Mrs. Ellis gave birth to a daughter, and as a token of the great affection she bore to her sister, Mrs. Susan Jesup, gave to her infant daughter the name of her sister, "Susan," or "Sudie;" that Mrs. Ellis survived the birth of the daughter but a short period, and while on her death-bed asked her husband, in the event of her death, to take her infant to Kentucky and give her to her sister whose name she bore; that Ellis promised her he would do so; that after the death of Mrs. Ellis her husband returned to Todd County, Kentucky, where George W. Jesup and his wife Susan resided, told them the sad news of the death of his wife, and the promise he had made her to bring her infant daughter and give her to the aunt, Mrs. Jesup, and said he had not the means to bring his child with him, but if they would furnish him $200 he would have her brought and would give her up to Mrs. Jesup; that upon this communication being made to Jesup and wife, Mrs. Jesup obtained the consent of her husband for her to take the child and to advance the money to have her brought to them; that she did advance the amount required, and the child was brought from Missouri and given up by her father to them, and she has lived with them ever since; that they have raised, maintained, and educated her at great cost, at least $2,000; that since they have had her, her father has not contributed one cent to her support or education, nor has he ever offered to contribute any thing therefor; that the father executed the agreement to give Susan up to them, and has acquiesced in their having her without complaint, and never expressed a desire to take her from them, to their knowledge, till within a few days before the institution of this suit; that, being childless themselves, and on account of their relationship to Susan, the name she bears, the manner she was given to them, and the promise made by her father that they should keep her, they have learned to love her as their own, and that she has the affection for them that a devoted child has for its parents, and that a disruption of these relations would bring the deepest sorrow to the parties, and work great injustice to the child; that they have ample means to support her, and have her raised and educated in a style quite equal to the social position of her family; that it is their pleasure to have her, to educate her, contribute all they can to her happiness, and to provide for her in the future according to her expectations induced by the manner in which she has been supported, and that they are the proper persons to have her; that although her father has lived for the last ten or twelve years in the adjoining county of Christian, not more than twelve or fifteen miles from their residence, and privileged to visit her when and as often as he pleased, and always kindly received by the plaintiffs, he rarely came to see her.
They allege that Susan's father has married a second wife, has quite a family of children, is a man of limited means, and to improve his fortune and to lighten the burden of supporting his family he was then about to remove to Colorado, and his purpose is to take Susan with him; that he is wholly unable to support her in the social position in which they have placed her, and to provide for her according to her expectations created by their care and expenditures.
That a small interest in some real estate situate in Christian County came to Susan by descent; the estate was not susceptible of division among those entitled to it; that a sale of it was desirable and necessary, and to procure a sale it was necessary that a statutory guardian should be appointed for Susan; that on the 25th of April, 1868, her father appeared in the Christian County Court and recommended the appointment of John L. Brame, the maternal uncle of his daughter, waiving the position himself; Brame was appointed, and is now her statutory guardian, and he not only has assented to, but is desirous that the plaintiffs may retain the custody and management of Susan.
That said A. W. Ellis has recently sued out two writs of habeas corpus for the purpose of obtaining the possession of Susan, the first one to Todd County, to compel the plaintiff G. W. Jesup to deliver her up, that was dismissed by the judge; the other was granted by James O. Ellis, brother of defendant A. W. Ellis, and judge of the Christian County Court, but made returnable before Thomas E. Lawson and K. Twyman, two justices of the peace for said county. On the trial before them the writ was dismissed.
They allege, on the same day, and immediately after the last-named writ was dismissed, the said James O. Ellis, presiding judge of the Christian County Court, at the request of said Allen W. Ellis, and to aid him to get possession of Susan Ellis, and to remove her out of the state of Kentucky, professing to act in the capacity of a county court, illegally, and without notice to said John L. Brame, caused to be entered on the order book of said court a writing purporting to remove said Brame as guardian of Susan Ellis, and that, confederating together, it is the purpose of said Allen W. and James O. Ellis to seize said Susan Ellis and remove her out of the jurisdiction of the court and from the state of Kentucky against her will, and to the great distress and grief of the plaintiffs and the said Susan.
They therefore pray that the defendants, the said Ellises and all others, be restrained from taking the child Susan Ellis into their possession or into the possession of either of them and from removing her from the county of Todd, and that on final hearing they be perpetually enjoined from interfering with her in any way whatever.
Allen W. Ellis, in his answer, admits his marriage with the sister of Mrs. Susan Jesup, their removal to Missouri, and the death of his wife, leaving the daughter, whose name he avers is "Mary Sue," but he denies that he made the promise to his wife on her death-bed, or at any other time, to give his said daughter to Mrs. Susan Jesup, and he denies that on his return to Kentucky after the death of his wife, he stated to plaintiffs he had promised to give the child to them. He says he did not then have the means nor the inclination to bring his child to Kentucky; that he had left her with his brother and co-defendant, James O. Ellis, and his wife, who were then living in Missouri, and were able and anxious to keep her. He admits that the plaintiffs urged him to bring his daughter to Kentucky, and that he agreed with them that if they would furnish the necessary means he would send for her, and give her up to them until he should desire to take her; that he had sisters of his own who were anxious to adopt his child, and who were able to provide for her, and give her a first-class collegiate education, but that he yielded to the urgent entreaties of Mrs. Susan Jesup, and permitted her to take his child for the time being, not solely to gratify her and her husband, but to have her nearer to him than she would be in Missouri, and being unmarried and without any permanent home he could not properly care for her, and therefore permitted Mrs. Jesup to take her temporarily and care for her until he should choose to take her into his own custody; this he says he did, although his own sister offered to take her and make of her an educated and accomplished woman, much more than Mrs. Jesup has offered to do.
He denies that he ever contracted or agreed with the plaintiffs, or either of them, or with any other person, that Mrs. Susan Jesup should take his child as her own, or that she ever did so take her, and especially does he deny that he ever entered into a contract by which he sold and bargained off his child for a pecuniary consideration, or that he ever entered into any agreement by which he surrendered his right to the custody, care, and education of her, and his parental authority over her.
He admits that he has not remunerated plaintiffs for the expenditures they have made in the nurture and education of his child, and says he did not offer to do so because he did not believe they desired or expected him to do it; but that in all his visits to her, which he says were frequent, he never by act or word intimated that he had surrendered or intended to surrender any of his parental rights over his child; that after his second marriage he frequently took her to his house; that she always appeared glad to visit him, his brothers...
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