¶1(dissenting).
¶2Appellants’ points one and two, considered in the light of the statement and arguments thereunder, are sufficient to raise the issue that the judgment sought to be reviewed, and settlement agreement upon which the judgment was based, were procured by appellee’s fraudulent concealment of community assets from the appellant. This dissent is based on these two points of error.
¶3The following facts are undisputed in the record of the suit for a bill of review. Ap-pellee and appellant were husband and wife and all the property in issue, other than two minor items, is community property acquired during the 19 years appellant and ap-pellee were married. Although appellant employed an attorney, she was sent alone to the office of her husband, an attorney with much experience in the field of litigation and settlement, and in his office the basis was laid for the drawing of the contract of settlement on which the judgment in issue is based. The contract was drawn by appellee’s partner in the law business, al-’ so an attorney with experience in the field *323of .litigation and settlement, who participated in the settlement meeting of the parties.
¶4In the settlement agreement, appellee received the sum of $15,000 in cash and personal property estimated at the value of $10,000. With reference to the personal property stated to be of the value of $10,-000, it is noted that entering into said valuation are “valuable oil paintings”. In view of the fact that the undisputed record reveals that appellant furnished the canvas and the paints for these “valuable oil paintings”, which were painted by a friend of hers in the city of Lamesa, it is a sound presumption that the $10,000 worth of personal property may be regarded with at least a grain of salt as to its valuation in the settlement. It is likewise undisputed that the contract of settlement contained the following representation and statement as placed in the contract by appellee acting through his partner in the field of law:
“1. Current bank deposit accounts, U. S. Government Bonds, Savings accounts in Savings and Loan Associations, consisting of several accounts labeled ‘building fund’ and ‘saving fund’, all of the approximate value of $40,000.00 after all 1952 Income Taxes of the parties herein have been paid in full.”
¶5The evidence reveals without controversy that the income tax payments as made did not substantially alter the actual amount of cash the parties owned. Other elements of the contract could be quoted to show, without controversy, that the value of all savings accounts and bank accounts was wholly concealed in the drawing of the contract in that the amount of and location of not a single specific account is revealed by such contract.
¶6In the light of the above undisputed facts found in the settlement agreement, an audit of the community estate of the parties as owned at the time of the making of the agreement and rendition of the judgment thereon reveals the total value of personal property and monies alone to be the sum of $273,451.75 which together with real estate valued at $25,250 shows a community estate owned by appellant and appellee of the total value of approximately $298,701.-75. But as to only the money and funds on deposit, the undisputed evidence as disclosed by an audit of the community funds reveals that the community estate of the date of the settlement agreement, September 5, 1952, consisted in fact of the sum of $138,959.54 in cash and on December 1, 1952, the date of the granting of the divorce and division of the property by the court, such cash funds were in the amount of $157,549.43.
¶7Appellant’s former attorney appeared as a witness for appellee and testified generally that he and appellant felt and agreed they knew there was more property but he nowhere testified that either he or appellant knew there were more cash funds on deposit than stated in the contract. Such attorney’s knowledge of the cash assets of the estate is fully revealed by the fact that such attorney, as a witness for appellee, testified that he drew a supplemental contract under which the $15,000 that appellant was to receive in cash was to be payable in three $5,000 installments over a period of several months. The drawing of this supplemental contract is unexplained in the record and the only reasonable presumption that can be drawn from such instrument is that appellee’s witness at the time of the drawing of the supplemental contract for appellant did not believe there were sufficient funds in the estate to pay the lump sum of $15,000 due the appellant under the agreement.
¶8When the contract is viewed in the light of appellee’s representation that the community estate consisted of only $40,000 in cash and Government Bonds when, in truth and in fact, it consisted of $157,549.43 in cash funds alone and $12,000 in Government Bonds, the contract itself under the undisputed evidence reveals the fraudulent concealment of community assets in the drawing of the same. Although the contract of settlement mentions the fact that the parties owned U. S. Government Bonds, *324without stating the value thereof, these bonds of the value of $12,000 were not specifically divided in either the contract or the judgment of division but were retained by appellee.
¶9In addition to the above undisputed facts, one of the most revealing elements of fraudulent concealment, which is likewise indisputable, is the fact that the contract of settlement does not even mention outstanding legal fees and claims and unpaid judgments as owned by the community. But, when paragraph 5 of the contract of settlement, awarding to appellee his law library and all office furniture and equipment in the law offices situated in Lubbock and Lamesa, was brought forward into the judgment of the court, which judgment was likewise drawn by appellee’s law partner, it is noted that the following clause was tacked onto paragraph S of the settlement agreement:
“together with the proceeds of any and all outstanding legal claims and unpaid judgments, of whatever nature and description whether paid, unpaid or in the process of payment, regardless of nature and amounts.”
¶10This neat addition in the judgment to paragraph 5 of the contract vested in appellee the sum of $91,902.32 in community legal fees not discussed or even mentioned in the settlement agreement.
¶11It is not believed that further undisputed evidence is required to establish the fraudulent concealment of community assets by the husband in the drawing of the contract of settlement and the judgment of the trial court based thereon. It is noteworthy that the entire contract and judgment based thereon, while failing to vest a single item of cash in specific amount or as to location thereof seeks to vest any and all such items in the appellee by vague general allegations — under the contract appellee clearly takes all and reveals nothing.
¶12This dissent rests on the opinion, based on the undisputed record, that appellant was deprived of her community estate solely by reason of appellee’s fraudulent concealment from her of the true value thereof. It is a correct principle of law that the court can adjudicate an uneven division of property between a husband and wife but no legal ground exists for the uneven division of property herein shown in the light of the fact that appellant has practically no earning power while appellee’s yearly gross earnings in the field of law practice are of the approximate amount of $200,000.
¶13The above undisputed facts as found in the record of the trial of appellants’ application for a Bill of Review are sufficient to require the granting of the same under the following rule:
“ … the husband is by law the manager of the community estate, and a trust relationship exists between him and the wife. His representations as to the nature and extent of the community estate, if false, are treated as a species of extrinsic fraud, justifying the modification of the property settlement upon the theory of an implied trust, in accordance with applicable equitable principles.” Brownson v. New, Tex.Civ.App., 259 S.W.2d 277, 281 [9-12],
“The right of a party to maintain an action to litigate rights as to community property when the fraud of the other party has prevented a litigation of such rights in a prior proceeding is well established.” Novy v. Novy, Tex.Civ.App., 231 S.W.2d 780, 782 [2],
¶14The law governing the issue as to negligence is revealed in Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768, at page 773, paragraph 3, wherein it is decreed:
“ … ‘that the plaintiff in error was prevented, by the fraud of the adverse party, from fully presenting all of her case at the time the decree was entered, and so without any want of diligence on the part of herself or counsel.’ ”
¶15See also Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442, Syl. 15-16-17, writ *325refused; Eldridge v. Eldridge, Tex.Civ. App., 259 S.W. 209, Syl. 7-10; Ralls v. Ralls, Tex.Civ.App., 256 S.W. 688, Syl. 11-12; McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357; Wright v. Wright, 7 Tex. 526.
¶16The Bill of Review should have been granted.