Downs vs. Ensminger, Tippecanoe County, Indiana

In 1845 or '46, MR. ENSMINGER and his wife, who were then comparatively poor, were living on a farm in this county; MRS. ENSMINGER was then about forty-four years of age, and was without children. Her sister, MRS. TUTTLE, (the mother of the claimant, MARY F. DOWNS), who was then living with her husband at Attica, Indiana, had several children, and among them the claimant, MARY F. DOWNS, who was then about eight years of age. The ENSMINGER and TUTTLE families were very intimate, and visited each other once or twice yearly.

In 1845 or '46 MR. ENSMINGER and his wife, when on a visit to the TUTTLE family at Attica, in pursuance of some contract or understanding they had between them, and the father and the mother of MARY, took the child, who was then about eight years of age, home with them to keep and raise as their own child. Up to the point as we understand it, the facts are not disputed; the dispute relates to what the contract between MR. ENSMINGER and the parents of the child was.

MRS. DOWNS claims that MR. ENSMINGER not expecting to have children of his own, agreed with her parents that if they would release all their claim on the child and gave her to him absolutely as his own child and permit her to live with him as his own until she was of age or married, that he would at his death, make her his heir and divide his property equally between her and his wife, and that it was solely and alone upon this condition that her parents gave her up.

The defense deny any such contract was made. This forms the only issue between the parties. It is admitted that MRS. DOWNS lived with MR. ENSMINGER from the time she was first taken away until she grew up and married, and that she was, during all this time, subject to his exclusive direction and control the same as if she had been his own child. It is also true that MR. ENSMINGER loved her as his own child, and intended to give her a liberal share of his estate. But she married against his will, and for this reason alone he willed all his real estate to others, not giving her a cent.

MRS. DOWNS at once began suit; she at first limited her demand to $10,000, and the jury gave her a verdict for the full amount. On account of some technicality of the law JUDGE VINTON, upon the motion of the executor, MR. ROYSE, granted a new trial. The plaintiff then increased her demand to $60,000.

A second trial was had in this county, but the jury disagreed - eleven of the jury being in favor of granting her a verdict for the full $60,000.

The defense now prayed for a change of venue from this county, and the case was sent to Warren County. Last week the case was tried in Williamsport, before JUDGE DAVIDSON, and the jury, after being out but about two hours, gave her a verdict for the full amount of her claim.