This is a suit for damages for alleged fraud in a partition of the community estate of August Krueger and his deceased wife, Louise Krueger. The appellants (plaintiffs below) are five of the seven children of August and Louise , Krueger, namely, O. H., Emma (Mrs. Wendland), H. A., W. P., and Minnie (Mrs. Teichelman) Krueger. The appellees (defendants below) are August Krueger and the two remaining children, Alfred and P. H. Krueger. The appeal is by plaintiffs from a judgment in favor of defendants, rendered upon a verdict which the court directed, upon motion of defendants, at the close of plaintiffs’ evidence.
Louise Krueger died April 5, 1932, and the partition was consummated April 28, 1932. It embraced the entire estate of both spouses, all of which was community; and was based upon an inventory valuing the entire estate at $86,076.26. Of this $2,400 in money was set aside to August Krueger, and the balance ($83,676.26) was equally divided among the seven children, the share of each being $11,953.75. Later it was discovered that a time certificate of deposit had been overlooked, a division of the proceeds of which enhanced each child’s share ($130.45) to $12,084.20. Each child agreed to contribute $200 per annum to August Krueger during his life, $1400 of the above $2,400 representing the first payment. The remaining $1,000 was to provide a monument to mark the graves of Louise and August Krueger. Additionally, it appears that a $500 note not included in the inventory was left with August Krueger. Other than this note, the $2,400 and the $200 per an-num from each child, August 'Krueger denuded himself in the partition of all his property, including his homestead right in 200 acres of farm land. The falsity of the inventory as pleaded consisted of various items of cash or checks in the way of advancements to Alfred Krueger, rental on land which it was claimed he owed, and some personal property. The aggregate was alleged at $25,000. Additionally, $1,000 rental on land was alleged to be owing by P. H. Krueger. It was charged that August and Alfred Krueger acted together in the alleged fraud “for the purpose of concealing the facts.” The petition further charges undue influence of Alfred Krueger over his father, as regards the advances of money and personal property to the former, but, as this was a matter of which only August Krueger could complain, it need not he further noted.
Whether the remedy sought he damages or rescission, the principle is firmly established by adjudication in this state that an affirmative showing of damage is essential to the maintenance of an action sounding in fraud or deceit. Russell v. Industrial T. Co., 113 Tex. 441, 251 S. W. 1034, 258 S. W. 462, 51 A. L. R. 1, where the authorities are collated, and extensively reviewed.
At the time the partition was made each of the children owned a one-fourteenth undivided interest in the entire community estate, subject to the homestead estate of August Krueger; and they were entitled to a partition of the entire estate other than *686the homestead. August Krueger owned, in his own right, a one-half undivided interest in the entire estate, plus his homestead estate. There was no legal obligation on his part to divest himself of his half interest in the property or of his homestead estate. What he received for this divestiture besides the $506 note and the $1,000 was the sum of $1,400 per annum during his life. -Under the agreed value of the property in the partition, Louise 1 Krueger’s interest was worth $42,000 (using round figures), less, however, one-half the value of August Krueger’s homestead estate. Each plaintiff was, therefore, entitled only to $6,-OOO, less one-fourteenth of the value of the homestead estate. Each plaintiff received, however, $12,000. In exchange for this excess of $6,000, plus one-fourteenth of the value of the homestead estate, each plaintiff agreed to pay August Krueger $200 per an-num during his life. As we interpret the above rule, it was incumbent upon plaintiffs to allege and prove that the assets of the estate fraudulently chai'ged to have been withheld from the inventory exceeded the value of August Krueger’s interest in the estate, less the value of the $1,400 per an-num which August Krueger was to receive for it.
There was no allegation or proof of the value of the homestead estate. For all the record shows, it might have equaled or exceeded the $1,406 per annum which the children agreed to pay. If so, it was essential to plaintiffs’ case to show by pleading and proof that one-half of the alleged fraudulently withheld assets exceeded in value $42,000, the value of August Krueger's interest in the estate.
The petition only alleges some $26,000 of fraudulently withheld assets, to the value of only one-half of which would the children be entitled in a partition. They received some $42,000 of August Krueger’s individual property, to which they had no legal claim, or approximately $29,000 in excess of their share, had the alleged fraudulently concealed assets been taken into consideration in the partition.
Under our above holding it is unnecessary to review the evidence. The statement of facts is quite voluminous (some 200 typewritten pages), and is replete with charges and counter charges as between plaintiffs, on the one hand, and Alfred Krueger, on the other. To give further publicity to the details of a family quarrel would serve no useful purpose. We have carefully perused the entire statement of facts, and deem it sufficient to say that, applying the rule that the evidence must be viewed most strongly in favor of the losing party under a directed verdict, it falls far short of supporting the allegations of the petition as regards the value of the alleged fraudulently concealed assets.
The trial court’s judgment is affirmed.
Affirmed.