Leal v. Leal , 291 S.W. 340 ( 1927 )

COBBS, J.

E. R. Leal, appellant, sued his brother, Santos Leal, Jr., and sister, Sarah Leal Del Yalle, for a discovery and accounting against defendant Santos Leal, Jr., for the collection of rents, income, and revenues from the community estate inherited by appellant and appellees from their parents,, and alleged to be owned by appellant and appel-lees as tenants in common and for the partition of said property.

Appellant alleges in his petition,- and shows: '

“That plaintiff and the two defendants, Santos Leal, Jr., and Sarah Del Yalle, are the children and sole heirs of their father, Santos Leal, Sr., who died February 17, 1903, and Joaquina G. Leal, their mother, and that said heirs and their mother thereby became tenants in common of the Laredo street property in San Antonio, consisting of thirteen lots which was the community property of their said parents. That said property rented for $275 per month, and by an agreement between those interested said property was to be held intact by said Joaquina G. Leal and not partitioned until the death of the latter. That plaintiff, said defendant Santos Leal, Jr., and their mother lived upon, enjoyed, and used said property until same was sold in July, 1915.

“That during said time said defendant, Santos Leal, Jr., did manage said property and collect the rents and income from all of the said community property for those interested therein. That said defendant collected the rents from said Laredo street property from the year 1908 to 1916, amounting to about $29,700. That the living expenses of said family, consisting of plaintiff, said defendant, and their mother, and the taxes on said property amounted to about $10,000 during said tíme, and were paid by said defendant out of said fiduciary funds in cash.

“That said property was duly sold in July, 1915, for $21,000, and said defendant became the custodian of said fiduciary funds. That in August, 1915, a block in San Antonio, known as block 20, C. B. SOI, bounded on the east by Pecos street on the south by Monterrey street, known as the Pecos street property, was purchased by said defendant for the mother and said heirs with $14,000 of the proceeds of the sale of the said Laredo street property, and said defendant caused the legal title to said property to be conveyed to him without the knowledge of plaintiff, and he held the same in trust for all those interested therein. That said defendant expended of said trust funds, said rents and the remainder of said purchase money, about $10,000, in building five new houses on said property, and plaintiff, said defendant, and their mother then moved to, lived upon, and used said Pecos street property as tenants in common after the said purchase until the death of their mother, on or about the 12th day of April, 1922. That she died intestate. That an undivided five-sixth interest in said property by reason of the premises became a resulting trust in favor of plaintiff, defendant Sarah Del "Valle, and their mother in 1915, and said four persons including Santos Leal, Jr., owned, held, and used said property as tenants in common until the death of said Joaquina G. Leal, as aforesaid. That the community interest of the mother in said property was inherited by said heirs.

“That said property rented for about $1,000 per month from January, 1916, until the death of plaintiff’s mother, and said defendant collected said income from said property during said time, which amounted to about $60,000, after paying the living expenses of the said family and the taxes thereon; and during the last four years up to the present time said defendant has collected the income from said . property, amounting to about $40,000 above said expenses.

“That from the year 1909 to 1925 said defendant purchased with said fiduciary funds, the rents and income from said Laredo and Pecos street properties, fifteen other lots and tracts of land in San Antonio. That defendant paid out of said fiduciary funds for said property amounting to about $30,000, and that plaintiff thereby, after the death of his mother, became the owner of an undivided one-third interest in all of said lots and land so purchased by said defendant.

“That there are a dozen or more houses on said property so purchased by said defendant, not including said Pecos street property, from which he has collected the rents of about $300 per month from the date the same was purchased.

“That in June, 1908, plaintiff borrowed $260 from one A. A. Gray, and as security therefor conveyed to said Gray the interest he inherited from his father in said Laredo street property, but thereafter his mother, for the benefit of plaintiff, in September, 1913, delivered to said defendant $350, and the latter paid said Gray said money for and at the instance of his mother, and said Gray for said consideration conveyed said interest to said defendant for the benefit of plaintiff, and thereby a resulting trust was created in said property for plaintiff, and he again acquired the equitable and superior title to said interest in said Laredo .street property, which he .inherited, as aforesaid, from his father, and plaintiff, by reason of the premises, owned said interest in said Laredo street property, which was a resulting trust, when the same was sold as aforesaid in July, 1915.

“That upon the death of his mother, in accordance with said agreement, plaintiff demanded of defendant an accounting of all of the rents and income collected by him from said Laredo and Pecos street properties, as well as from all of said other properties from the year 1908, up to the present time, which exceeds $100.000, and also asked for a partition of all of said real estate, which now exceeds in value $100,000, but defendant failed and refused to render any accounting whatever of said rents, income, or profits from said property and refused to partition said property.

“Plaintiff prays that the defendant make a full and true discovery, disclosure, and accounting of all of said rents and funds concerning all the transactions and matters aforesaid, that plaintiff have judgment vesting in him the title to an undivided one-third interest in all of said property, both real and personal, and for a partition of said property, and for such other and further relief, legal and equitable, to which lie may be entitled to.”

It is not apparent upon what theory the general demurfer was sustained. The insistance of appellees in their brief is:

.“Appellant, in his fourth amended original petition, sought to recover a one-third undivided interest in the community estate of his father, Santos Leal, Sr., and his mother, Joaquina G. Leal, basing his claim upon heirship. Appellant’s trial pleading nowhere alleges that no administration upon the estates of his deceased father and mother was necessary; there is no allegation- of any fact or facts which could be construed to mean that no administration upon either of such estates was necessary.”

Appellant, in his petition, alleged:

“That Santos Leal, Sr., and Joaquina G. Leal were husband and wife, and that E. R. Leal, Santos Leal, Jr., and Sarah Del Valle are children born of the marriage of said Santos Leal, Sr., and Joaquina G. Leal, and are the sole surviving heirs thereof.

“That Santos Leal, Sr., died intestate on or about the 17th day of February, A. D. 1903, that there was no administration upon his estate, and that said Joaquina G Leal died intestate on or about the 12th day of ^pril, A. D. 1922, and that there has been no administration upon her estate.”

This was a suit for discovery and for an accounting between the heirs, growing out of the alleged breach of trust relations and the conversion of property of an estate in which appellant had an interest as an heir. The bill so clearly stated a cause of action against a general demurrer, which for its purpose admits as true all the facts-stated, that we shall not discuss any issue raised in the pleading other than to state appellant was entitled to a hearing on the same.

Hence the judgment of the court below is reversed and the cause remanded.