"`Come as plaintiffs Mrs. Daisy F. Jordan, joined by her husband, Lawrence L. Jordan, and, leave of the court being requested and obtained, file this, their first amended original petition, filed in lieu of their original petition filed on September 11, 1902, with their grounds of complaint, against John McIlhany, of Lampasas county, Texas; W. B. Abney, of Lampasas county, Texas, in his capacity as administrator of the estate of Harriet E. McIlhany; Wm. B. Frith, of Frostburg, Maryland; Joseph S. Whittington and John W. Whittington, both of Martinsburg, Berkley county, West Virginia; John Barrett, Joseph Barrett, Sam Barrett, and Mollie Barrett Athey, all the said Barretts being residents of Bakerton, Jefferson county, West Virginia; John T. Dorsey, of Kearneysville, Jefferson county, West Virginia; and W. H. Golden and wife, Elizabeth, of New York City, New York, as defendants.
"`Aforesaid plaintiff Mrs. Daisy F. Jordan would represent and state to the court: That she was born at Leetown, West Virginia, in the year 1868; her parents being John W. Frith and Phœbe Ann Frith, both now long since deceased. That her said mother died when plaintiff was but a few months old. That her mother left a sister, namely, one Harriet E., who married one Joseph C. Ogle, of Galveston, Texas. That, some six years after the death of plaintiff's said mother, her aforesaid uncle and aunt, namely, Joseph C. and Harriet E. Ogle, having no children of their own, offered to adopt and did adopt the plaintiff. That said plaintiff's father and said Ogle and wife entered into a contract by which it was agreed that said plaintiff's father would surrender his said child to them; that they would rear said child, and legally adopt it as their own, and leave her their property at their death; and that at their death said plaintiff, as their said child, should and would have their property. That prior to said time, and shortly before the death of plaintiff's said mother, said Joseph C. and Harriet E. Ogle did agree and contract with plaintiff's said father and mother to take said plaintiff as their child, to rear her as their own child, and to adopt said plaintiff. That in accordance with the aforesaid contract, and that in furtherance of said contract and in compliance with its terms, said plaintiff was carried by her said aunt to Galveston, from her home in West Virginia— she being about six years old at the time; placed in the family of her said uncle and aunt; taught by them to look upon them as her father and mother; not allowed to visit or correspond with her own father, her sisters and brothers, but estranged and weaned away from her old family ties. That she took the name of Ogle; knew and had no other name; looked upon her uncle and aunt as her own father and mother; gave them all love, obedience, and service that a daughter could give.
"`Plaintiff would further state: That she was taught and led to believe, and was told by her said adopted parents, that she was their adopted child; that at their death she would inherit as their child, and acquire all property of which they died possessed; that she was their daughter, and she was led to believe that they would carry out said contract with her father, and leave her all their property at the death of both of them. That she was held out to the world by her said uncle and aunt as being their daughter, and always regarded and considered herself so to be. Plaintiff now sets out and charges the truth to be that she was their adopted child, and, as such child, entitled to their property at their death—they, her said adopted parents, never, at least since said adoption, having any children of their own, or any child or children or their descendants surviving their death; that, if they ever had a child of their own, it died prior to plaintiff's adoption.
"`Plaintiff would further state that, when she was about fourteen years old, her said adopted parents purchased a ranch in Lampasas county, abandoning their old home in Galveston; that the said ranch consisted of the following tracts or parcels of land, the same being, lying, and located in the aforesaid county of Lampasas, state of Texas: [Here follows a description of the land by metes and bounds.]
"`Plaintiff would further state: That she and her said adopted parents moved to Lampasas county, as aforesaid, on the foregoing property. That while on said ranch she not only performed daily household duties, which she had all along been performing since being old enough so to do, having all along since said adoption engaged actively in the household work, but that she assisted her uncle in outdoor work on the ranch, looking after the cattle, etc., and continued so to do as long as she remained with her said uncle and aunt, both prior and subsequent to her marriage. That on or about December 27, 1888, plaintiff married her coplaintiff, Lawrence L. Jordan, with the consent of her said adopted parents; she being married under the name of Daisy F. Ogle. That her said adopted father died
in the year 1894, leaving a will in which he devised plaintiff two small tracts of land, but left the bulk of his said estate, consisting of personal property and the foregoing described lands, which was community property of himself and wife, to his said wife. That plaintiff at said time gave no thought to said will or her adoption papers, she considering, and her adopted mother considering, it to be the wish and intent of said Joseph C. Ogle that his said wife should enjoy the estate during her lifetime, and at her death the same should and would go to plaintiff, as their child. That her said adopted mother so took said estate, considering the same to be her's only for life, and that the same was to go to said plaintiff at her death, and her said adopted mother took said estate charged with said trust. That she remained in possession thereof by and with the consent and approval of this plaintiff Daisy F. Jordan and her husband, always recognizing plaintiff's right therein, and agreeing with plaintiff to carry out said contract, and leading plaintiff to believe that she had been duly and legally adopted, and that after the death of said J. C. Ogle the plaintiff Daisy F. Jordan continued to live in the house of her said adopted mother for a considerable length of time, and continued to work for her, rendering valuable services. That she rented a boarding house and kept boarders for a short period, and turned over to her the revenues and gains therefrom, and worked for her in a great many other ways, under the express promise and agreement from her that she would carry out said contract with her father, and leave her all of said property at her death; and the said Harriet E. Ogle, in consideration of said services, care, and attention during the time she was a widow, agreed with plaintiff to carry out said contract, and leave her all her property at her death.
"`Plaintiff would state: That she continued to give her said aunt all respect, love, and obedience as a child after the death of her said adopted father. That her said aunt considered plaintiff her child, and had no intent or thought but that said plaintiff should and would have all of said property as aforesaid. That her said aunt did, after her husband's death, and as a single woman, ratify the said contract of adoption, and expressly agree to carry out the terms thereof; agreeing with said plaintiff to leave her all of her property at her said adopted mother's death. That never at any time were the relations of mother and child changed. That the plaintiff gave to her said adopted mother a great deal of her time and attention while she remained a widow. That her said aunt continued to look upon plaintiff as her daughter; did so hold her out to the world; and publicly declared that said plaintiff was her daughter, and would have all of her property at her said death. That she was so held out by her said adopted mother up to the time of her death. That some eighteen months prior to her said adopted mother's death, which occurred on or about May __, 1902, she married one John McIlhany, named as defendant in this cause. That W. B. Abney, named as defendant, has qualified as administrator of the estate of plaintiff's said deceased aunt and adopted mother. That John W. and Joseph S. Whittington are the surviving brothers of said deceased; the same being the sole surviving next of kin; deceased's father and mother having died long prior to her said death. That the Barretts named as defendants are the sole surviving children of one of the sisters of deceased, who has long since died;...
