Cubley v. Barbee (123 Tex. 411, 1934)

Mr. Chief Justice CURETON

delivered the opinion of the court.

Mrs. Jessie Cubley, joined proforma 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 $195,000.00

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, Michigan. 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 three years of age, came to Longview, Texas, where Mrs. Partridge’s father, a railroad man, and his wife, the step-mother 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, Texas. Her step-mother not being able to or declining to care for the three 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 step-mother’s home at Long-view; 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, Michigan, 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 aft'erwards 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, Michigan, in January, 1888, Mrs. Partridge received a letter from Mrs. Thyng at Chicago, forwarded through her father at Longview, Texas, 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 o%on 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 him I wouldn’t sign any papers of adoption; then every day after that they talked about it until at last I decided I toould 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 toas 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-C tfc JjC Jji ^

“I did not see that paper until the day I signed it. Mr. Thyng took it out of his pocket ivhen 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 him 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 ivrote 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 ous.)

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 about four years.

The execution of the documents referred to by the witness at Chicago was in 1888, at a time when Jessie was not quite six years of age, so young in fact that she did not then know that Mrs. Partridge was her mother, and never learned it until years afterwards.

In the summer of 1888 a man by the name of Munzesheimer, a witness in this case, who lived in Dallas about fifty years, was doing some work at the Thyng residence in Dallas and heard a lawyer by the name of Mitchell read some papers, concerning which he in part testified:

“As to the nature of that instrument, it was a form of an adoption paper. As to what was done with the paper on that occasion, as well as I could remember, Mr. Mitchell had them with him when he left the house. The papers were delivered to him by Mrs. Thyng herself. I do remember a declaration that Mrs. Leonard (Thyng) made at the very time she delivered the papers to him. I remember Mrs. Thyng gave Mr. Mitchel, I think, some money, and asked him to have those papers recorded. I do not remember the amount of money she gave him.”

It will be recalled that Mrs. Partridge testified that she wrote Mrs. Thyng as to the adoption papers, and after some time received a reply that the papers were valid and had been filed for record. Subsequent to the transaction just detailed Mr. and Mrs. Thyng were divorced, and in the same year (in 1889) he died in the east, leaving no estate. Mrs. Cubley, (Jessie Partridge), as a child, about seven years of age, was at his funeral.

It will be recalled that Mr. and Mrs. Thyng had a music teacher for Jessie at the time of the execution of the adoption papers there in 1888. The fact is the child, Jessie, proved to be a musical genius, and Mr. and Mrs. Thyng no doubt knew of her unusual talents at the very time of the negotiations with the mother. We infer, in fact, from the evidence, that they were then touring the child as a musician.

Following the execution of the papers at Chicago, Jessie Partridge became in every essential respect the adopted child of Mr. and Mrs. Thyng. Mr. Thyng, however, lived only about one year thereafter; but the child continued in the same relationship to Mrs. Thyng, who after Mr. Thyng’s death was known as Mrs. Leonard. Mrs. Thyng educated Jessie, developed her musical genius to such a point that while yet a small child she appeared on Keith’s and other theatrical circuits through á large portion of the country, including the cities of New York, Boston, Chicago, and St. Louis, and many other places. In fact, she visited New York as a musical artist forty-five different times. She received a gold medal when she performed in her home town at the Dallas Fair. She married at fifteen, and at least temporarily retired from the stage; but for some nine years Mrs. Thyng enjoyed the society and income, whatever it was, of the daughter she had attempted to adopt. What the income was the evidence does not disclose. The record, however, justifies the conclusion that the earnings of Jessie were substantial; and, except that which went for her support, she did not receive any portion thereof. Mrs. Carter, a next door neighbor to Mrs'. Thyng (Mrs. Leonard), speaking with ■reference to Mrs. Thyng, said:

“She told me that Jessie was a great cornetist. She told me about her going to the different cities in the United States to perform as a little girl. She said that Jessie was very smart in her music and when she would play everybody was thrilled with the music. She did not say anything with reference to the size of the crowd. She told me that she went on the road with Jessie and Jessie played and they made good money.”

Mrs. Thyng (Mrs. Leonard), the adopted mother, died with nearly $200,000 in cash and property; but what part, if any, was derived from the childhood services of Jessie, this record does not show. Let this be said for the dead woman, Mrs. Thyng (Mrs. Leonard): She lived up to the obligation of an adoptive parent, save in the one particular, the entrusting of the adoption deed to a careless lawyer, who apparently did not file the same, although Mrs. Thyng thought and said it toas ■filed as the lato required. She reared and educated the girl, who took her name, “Leonard,” like a mother would, and loved her to the time of her death, when eighty-six years old. On. many occasions, from the summer of 1888, when she met Ben Cabell, whom she had known since 1874, and to whom she then stated that the child had been given to her by its mother, substantially until her death Mrs. Thyng said over and over, again to many witnesses that Jessie was her adopted daughter. She made these statements upon occasions of introduction or in explanation of the presence of the child with her. Jessie, however, did not know she was an adopted child until she was about twelve years of age, when she learned it for the first time from children with whom she attended school. That the child, Jessie, from the time of her adoption to the day of Mrs. Thyng’s death, performed the filial duties of a daughter, this record leaves no room for doubt. The mother, Mrs. Partridge. (Fuller), also kept her- part of the relinquishment agreement, although she knew from hearsay that Jessie was on the stage as a musician, and knew that she performed in Toledo, Ohio, where Mrs. Partridge (Fuller) resided.

When fifteen years of age Jessie married a twenty-year-old boy by the name of Amlong, who then lived, and yet lives, in Dallas. After the birth of a baby, that died in a few months, Jessie and Amlong separated and were divorced. Amlong subsequently married another woman, and Jessie married Mr. Cubley. Amlong explained the separation by saying that after the death of the child, “Jessie got music crazy and went away, met Mrs. Leonard and traveled around.”

Immediately after the marriage they went to Toledo, Ohio, and lived for a time with Mrs. Partridge, Jessie’s mother; but shortly returned to Dallas, and there remained for about a year. Before the baby was born Jessie returned to her mother’s at Toledo, to be followed later by Amlong, and there remained until the birth and death of the child, — after which the separation took place as stated above. Jessie, according to Amlong’s testimony, was fifteen or sixteen years of age at the time of the marriage; was living with Mrs. Leonard (Mrs. Thyng); and was known by the name of Leonard. Mrs. Leonard (Mrs. Thyng), however, told him that she was an adopted daughter; that her real name was Partridge; and the marriage license was taken out at Mrs. Leonard’s (Mr. Thyng’s) suggestion in the name of Jessie Partridge. Amlong in part testified: “Mrs. Leonard was friendly with Jessie and I during that year; she forgave us and came over to see us and talked to us. She would come over to see Jessie and I about two or three times a week. During that time she did talk to us with regard to the matter of the adoption.- She would talk to Jessie and 1 about the adoption quite often. She said she wanted us to know that Jessie was legally adopted and the papers toere on record here in Dallas. She did make a statement with reference to recording the papers; a lawyer here in Dallas recorded them; I believe his name was Mitchell;Colonel Mitchell. As to whether or not I ever heard her make a statement as to where the papers were signed up and acknowledged, they toere signed up in Dallas; that is, they were recorded here in Dallas. <{(