On Motion for Rehearing.
The following excerpts from an elaborate motion for rehearing give the substance of appellants’ analysis of the issues and of their theory of recovery in the case: “This court seems to have overlooked the fact that the appellants were complaining, principally, against'the appellee, Alfred Krueger. It appears from the testimony, that it was he who, after acquiring an undue influence over his father, acquired the management and control of his father’s and mother’s property, and by and through this means acquired and appropriated to his own use and benefit approximately $20,000.66' worth of their property. That in the partition he concealed this from the appellants, although he had agreed with them that all should participate equally, and that each should account for and be charged with such amounts as had been received from their parents. That in the fraud thus practiced upon them be controlled and directed the conduct and actions of their father. He, with all of his brothers and sisters, contracted and agreed with their father that each should pay to the father the sum of $200.00 per annum as long as the father lived, and that this sum should be secured, in that those getting land in the partition of their mother’s estate, and by purchase from their father, would each give a lien on all of said land received; and those getting no land would execute bonds. I-Ie, alone of all of the children, failed to comply with this condition. He contracted to pay his father for the property his father was selling him, accepted the property, and then failed to pay. * ⅜ * Although the appellee, Alfred Krueger, alone is morally responsible for the fraud eomqjittcd and is the only person that profited thereby, yet, since this court is dealing with legal and not moral liability, August Krueger must also be held to be liable for the fraud committed. Alfred Krueger had been his agent in the management and control of the property, and Alfred Krueger, by reason of his position as such, and by reason further of his undue influence over his father obtained the large sums that were withheld from the partition.”
In broad outline the picture presented by the record shows:
August and Louise Krueger had, through years of toil and thrift, accumulated a community estate, principally of land, worth over $80,000. Each of their children, except Alfred, upon marriage or reaching majority, left home; upon which event August made each a gift of personal property (chat*687tels, money, or both). The gifts to each were not equalized. Alfred remained at home and eventually became the manager of the property for his father. In this he had complete charge, including handling his father’s bank account. Early in the year 1931, or prior thereto, the five plaintiff children became dissatisfied with Alfred’s management, charged that he was gambling in cotton futures, neglecting the farms, squandering their father’s money, and the like. In tbe spring of 1931, there was á meeting at the Krueger home of all the children for the purpose of arriving at añ agreement of partition of the entire estate. This meeting terminated quite unpleasantly, whosesoever version is accepted, and the general result was to intensify the personal animosity that had grown up between plaintiffs and Alfred. About a year passed; and finally on March 30, 1931, Otto swore out a complaint of lunacy against his father, and asked that a guardian be appointed of his estate. The factual allegations of this affidavit read: “Now comes O. H. Krueger, who resides in Williamson County, Texas, a son of August Krueger, who resides in Williamson County, Texas, and informs the court that August Krueger, who is now past seventy-four (74) years of age and whose health and phys-. ical condition is impaired to the extent that he is unable to labor or perform any character of physical exercise or to give any attention whatever to his business and that by reason of his extreme age and physical impairments and his confirmed invalid condition have continued for so great a length of time that his mental powers and business capacity have also become weakened and impaired and broken to the extent that he has lost and does not now possess, either the physical or the mental capacity to look after and attend to and safeguard his own business interests, nor even his own personal welfare; that his normal mental powers, (which at one time were those of a normal person) have also completely broken down and given away leaving him with a slow, weakened, greatly impaired mentality, all resulting from his bodily decay, and affliction and impaired physical condition and that by reason thereof the said August Krueger is now a person of unsound mind and is without a lawful guardian, to the best of the knowledge and belief of this affiant.”
Warrant was issued, under this charge, and August Krueger was arrested and' brought into court on April 1, 1931. The two checks given by August to Alfred, aggregating approximately $7,000, were dated April 1 and 2, 1931, respectively. Louise Krueger was ill at the time her husband was arrested and taken to court, and she died four days later (April 5). The partition was consummated April 28, 1933, and the lunacy proceeding dismissed May 7, 1933. The record shows that, although Otto Krueger alone made the affidavit to the lunacy charge, three of the other plaintiffs were cognizant of it and either advised or assented to it. All of the plaintiffs testified that August Krueger was not of unsound mind; Otto further testifying that the complaint was made upon suggestion and advice of his attorney.
While plaintiffs alleged and testified that the preliminary agreement among all the children upon which the partition was predicated was that each child was to account for advances received from their father, the record shows that this was not done. No effort was made to equalize the several gifts or advances; and the only thing taken into account was actual indebtedness in the form of notes which some of the children owed their father.
We think our analysis of the case in bur original opinion, and the conclusions there reached, are correct.
Up to the death of Louise Krueger, August Krueger had the exclusive power of disposition and control of the community estate, subject to the sole limitation that therein he might not commit a fraud upon his wife. Subject to this limitation he was free to use his judgment in the management, committing it, if he deemed proper, to Alfred ; and he might even make gifts of the community property to his children. No one but Louise Krueger could complain of the transactions between August and Alfred Krueger, or of the former’s management of the property through the latter. If these transactions and this management amounted to fraud upon the rights of Louise Krueger in the community estate, her heirs (other than Alfred) could, in a partition of the estate, require August Krueger to account to them to the extent that their interest in their mother’s estate had been diminished by the fraud. This, we believe, is the full extent of any legal obligation which. existed in favor of plaintiffs against August Krueger under any theory presented by the record in this case.
•In so far as August Krueger’s interest in the estate is concerned, he was súi .juris, and plaintiffs dealt with him as such. He was free to make such disposition of it as he chose, and he alone could complain of Alfred’s actions toward and dealings with him, or bring him to account therefor. If he chose to make a gift to Alfred, or approve of his mismanagement of his property, he had the legal right to do so. Plaintiffs could not bring Alfred to account in their father’s interest; nor compel the latter to do so against his will.
Appellants contend that the partition of the entire estate was in effect a partition *688of their mother’s and purchase of their father’s estate. To the extent of the annuity ($1,400 per annum during the life of their father), there was a consideration for the partition. But it can hardly he said that this was all or even the major portion of the consideration. In the main the partition of August Krueger’s property was a gift to his children, the annuity amounting to only a small portion of what he was parting with; and constituting in effect the reservation of hut a small competency for his declining years. Even if every item claimed in plaintiffs’ petition were added to the community. estate, each child received in the partition through gift from his father’s property vastly more than he was entitled to as his interest in his mother’s estate, plus the meager consideration hy way of annuity he agreed to pay to his father.
After having accepted and received the full benefit of this gift, which, hut for the annuity, left their father virtually penniless in his old age, they now seek to call him to account because he has favored Alfred above them — a course clearly within his legal rights. If they are permitted to recover and are unable to satisfy their judgment against Alfred, they can offset their annuity obligations against the judgment against their father. A mere statement of the effect of their contention carries with it, we think, its own refutation.
Appellants contend that we have applied the wrong measure of damages, quoting R, S. art. 4004, fixing the measure of damages for fraudulent sales of real estate as “the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract.” There was no misrepresentation or unfulfilled promise regarding any of the property, real or personal, which plaintiffs received, and none claimed. The entire claim of plaintiffs is predicated upon fraudulent favoring of Alfred, in that he was not required to bring into the partition of the entire community estate gifts he had received from his father and obligations to his father as the result of his fraud and mismanagement. A complete answer on August Krueger’s part to plaintiffs’ suit, so predicated, would have been: “I gave you of my own property more then you had any legal right to, even if Alfred had been brought to full account. as now urged by you; you have no legal claim because I have favored Alfred, even though, as you assert, I may have concealed my favor from you.” August Krueger did not testify in the case. He was present in court, but was not called by plaintiffs, and the court directed a verdict at the close of plaintiffs’ evidence. We do not have his version of the transaction from his own lips; but he filed a general denial to all the allegations of plaintiffs’ petition, and whatever answer he might have given, under the- showing made, is available in his behalf.
There is one other phase of the case to which we shall advert It appears that some two weeks after the partition, Otto Krueger discovered, as he states, for the first time that his father had given Alfred the two chocks of April 1 and 2. This precipitated the present suit, and was the gravamen of plaintiffs’ claim as shown all through their testimony. To require an accounting for Alfred’s mismanagement appears to have been an afterthought. The record shows in this regard that plaintiffs claimed all along that Alfred was squandering the estate. This was the motivating cause of bringing the lunacy charge — so they assert —to put the property in the hands of an “administrator,” and thereby to protect their father’s, as well as their own, interest. They admit that the charge of mental incapacity was not true, and while it was still pending they made a full settlement of all their claims and grievances with their father. Otto claims that he did not understand the full purport of the affidavit he made, and it is immaterial whether he was guilty of an intentional false affidavit. Giving him the benefit of every doubt in favor of the moral aspects of his conduct, the purpose of the proceeding, of which he and those assenting thereto were fully aware, was to wrest from their father the control of his own property on the ground that they believed it was being mismanaged and fraudulently dissipated and squandered by Alfred. It can hardly be said that, although they may not have known the details, they were not sufficiently cognizant of facts and circumstances to put them upon inquiry, which, if properly pursued, would have disclosed all they have subsequently developed. See Waggoner v. Zundelowitz (Tex. Com. App.) 231 S. W. 721. We are not, however, resting our decision upon this issue.
The motion is overruled.
Overruled.