Pearl v. Pearl

WILBUR, J.

This is an appeal from a judgment for plaintiff rendered after a verdict by a jury on special issues and the decision by the court adopting said verdict. The action is brought by the plaintiff to compel an • accounting from the defendant of the proceeds of the sale of certain real estate therein described. The complaint alleges that the defendant is the son of John Q. Pearl, deceased; that the said decedent, on April 28, 1902, executed a deed to the defendant to all his real estate, without consideration, upon defendant’s promise to take and hold the same in trust during the lifetime of decedent for the use and benefit of decedent, or to convey according to the direction of decedent, and upon his death to share the property equally with the heirs at law of said decedent; that said promise was made by defendant without any intention of keeping or performing the same; that on February 4, 1907, without consideration, decedent executed a quitclaim deed to defendant of said property; that at the time decedent executed the same he “was aged and ill in body and mind, and physically and mentally weak, and incapable of understanding the nature or effect of his acts, and incapable of transacting business, and did not, in fact, understand the nature or effect of his said acts in so executing, in form, said last-mentioned deed . . . and said John Q. Pearl from thenceforth continued to be, and was at the time of his death, so weak and ill in body and mind, and incapable of caring for his property, or transacting business, or understanding the nature or effects of his acts”; that on July 22, 1908, the defendant without direction, consent, or knowledge

[306]

of the decedent, sold the property; that the defendant received and converted to his own use and benefit the purchase price, the exact amount of which was unknown to plaintiff; that the defendant received large sums of money as income from said premises and converted the same to his own use and benefit, and has failed and refused to account therefor, either to the deceased or to the plaintiff. The jury found, and the court adopted its findings, that the foregoing allegations of the complaint were true, except that there was no finding on the allegation that the promise to hold the property in trust made by the defendant to the decedent was without any intention of keeping or performing the same. The judgment of the court was for the sum of five thousand dollars, proceeds of the sale of said real estate. The complaint stated a cause of action for a breach of trust. Defendant was not prejudiced by the overruling of the demurrer. Appellant claims that the administratrix does not have the capacity to sue; that under the trust fund, the beneficiaries, the heirs, alone have power to sue, and cites in support thereof the case of