Barritt v. Barritt

ANDREWS, J.,

pro

tem.

This appeal is from a judgment of dismissal following the sustaining of a demurrer to the complaint without leave to amend. The complaint sets forth that in the year 1916 the plaintiff and two brothers entered into a partnership for the purpose of dealing in cattle; that in the course of the business the partnership acquired certain real estate which was used in the business, the title to which was taken in individual names of different members of the partnership to be held in trust for the partnership; that the real estate thus acquired was during the course of the business from time to time sold and conveyed to purchasers, reserving, however, the mineral rights to the soil, the deeds conveying only the surface rights. The active business of the' partnership was brought to a close during the lifetime of the brothers and the assets of the company divided between them, except the mineral rights which had been reserved from the conveyances of the land.

It is alleged that at the time the assets were divided it was agreed that these mineral rights were to remain, so far as the title was concerned, undistributed and to be held in trust for the different copartners, each to be entitled to a one-third interest, conveyance to be made of such interest on demand. Subsequent to this settlement of the business one of the partners, R. T. Barritt, died on the fourteenth day of July, 1921, and on the sixteenth day of September, 3921, B. F. Barritt, one of the partners, was appointed executor of the estate. B. F. Barritt continued to act as executor of the estate up to the time of his death, the date of his death not appearing in the complaint, nor in the

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record. Subsequent to the death of B. F. Barritt, his wife, Belle A. Barritt, was appointed executrix of his estate on December 23, 1927, and on said date Susie F. Barritt, widow of R. T. Barritt, was appointed administratrix of the estate of R. T. Barritt, deceased, and since that date these persons have been and now are administering these estates; that since the appointment of these persons to administer these estates they each admitted to plaintiff knowledge of the trust in the mineral lands and agreed that his one-third interest should be recognized and protected in the administration of the estates; that on the twentieth day of June, 1930, they repudiated their trusts and denied plaintiff’s right to any interest in the lands; that thereupon on July 12, 1930, this action was begun to enforce this trust and recover plaintiff’s rights in said lands.