Valencia v. Bernal
Before: Sawyer
Synopsis
Appeal from the District Court, Third Judicial District, Santa Clara County.
The complaint charged that José Joaquin Bernal departed this life in 1837, at-the Rancho of Santa Teresa, in the present County of Santa Clara, leaving him surviving his heirs at law, his sons Augustin, Juan, and Bruno, the defendants, his daughters Jacoba, Zacharias, Petra, Pilar, Encarnación, Dolores, and Magdalena, and his grandchildren, the plaintiffs, children of Marcelena, a deceased daughter, and that the grandchildren were entitled to one tenth of the estate.
The complaint further charged that said José Joaquin Bernal died seized of the Rancho Santa Teresa, and also possessed of ten thousand head of cattle, one hundred and fifty head of horses, mares and colts, running and grazing on and around the rancho; and that immediately after his death, the defendants Augustin, Bruno, and Juan, took possession for themselves and the other heirs, of said cattle, horses, and sheep, and have ever since retained the possession and control and management of the same, together with the natural increase of the same and the products of sales of portions thereof, except so far as they have settled and accounted with the heirs not made parties to the suit; and that at the time of the death of José Joaquin Bernal, plaintiffs were infants, and that their distributive share of the estate, to wit: one tenth, had remained in the possession and control of the defendants Augustin, Bruno, and Juan, who had never settled with plaintiffs or accounted to them therefor, and that they had demanded of them an accounting and settlement, which had been refused.
The complaint also charged that defendant Bruno Bernal, with the intent of defrauding plaintiffs, and without any consideration whatever, had conveyed the whole of that portion of the property remaining in his hands to his two sons, the defendants Antonio and Francisco.
The complaint prayed for an accounting and distribution of the property. The action was commenced March 20th, 1860.
The Court found the following facts:
1st. That José Joaquin Bernal, now deceased, in his lifetime lived with his family on the Santa Clara Teresa Rancho, in Santa Clara County, and had on it a large number of Spanish cattle. The defendants, Juan Bernal, Augustin Bernal, and Bruno Bernal, three sons of the said José, lived on the same rancho, and each one had his separate house in which he lived with his family, and his separate flocks and herds, and used his separate brand. At the death of the said José, their father, Augustin was about thirty-eight or forty years of age, and owned of his own separate cattle about twelve or fourteen hundred head; Bruno, about thirty-five years old, and owned about the same number of cattle; and Juan was about twenty-five years old, and owned about one thousand head of cattle.
By the Court, Sawyer, J. The plaintiffs, as heirs of José Joaquin Bernal, who died in 1837, brought this action to recover their distributive share of the decedent’s estate. The complaint alleges that defendants, upon the death of Bernal, took possession of the estate, and that they have ever since managed and controlled it, and that they refuse to account to plaintiffs for their distributive share.
The Court, upon a finding of the facts, entered judgment dismissing the complaint, from which judgment plaintiffs appeal.
The facts found by the Court do not sustain the allegations of the complaint. It is manifest from the findings that if any one acted in such a manner as to become liable in a character analogous to that of an executor de son tort at common law, it was the widow of Bernal, and not the defendants, who only acted during the first few years after the death of Bernal, under and for her; after which they removed to their own ranchos, and the plaintiffs themselves took their places under the widow. The Court finds that from 1847 till the death of the widow in 1857—a period of ten years—the plaintiffs resided on the rancho of decedent with the widow; and that the plaintiff Nicholas Valencia took charge of the stock on the rancho and managed it in connection with the widow’s. It is not found that the possession and control of the property was changed subsequent to the death of the widow in 1857.
The facts found do not entitle plaintiffs to any relief upon the theory upon which the complaint is framed. The time when the plaintiffs attained their majority is not found, but it was evidently many years before the institution of this suit. If plaintiffs have any right of action not barred by the Statute of Limitations, it would seem from the facts disclosed in the finding that the remedy must be pursued upon the theory that the heirs and the widow were tenants in common of thé estate [336]of Bernal; and in an action for a settlement and division of the property, all the heirs, including the representatives of the; widow, would seem to be necessary parties.
No appeal is taken from the order denying a new trial, and no questions are made in the briefs that do not arise out of the judgment roll. We think the judgment should be affirmed, and it is so ordered.
Mr. Justice Rhodes expressed no opinion.
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