Black v. Black

• Decision Date: 05 April 1902
• Docket Number: 12,005,12,126
• Citation: 64 Kan. 689,68 P. 662
• Parties: PHEBE A. BLACK v. MAGGIE E. BLACK et al. MAGGIE E. BLACK et al. v. PHEBE A. BLACK
• Court: Kansas Supreme Court

68 P. 662

64 Kan. 689

PHEBE A. BLACK v. MAGGIE E. BLACK et al.

MAGGIE E. BLACK et al. v. PHEBE A. BLACK

Nos. 12,005, 12,126

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Miami district court; JOHN T. BURRIS, judge.

Decree of partition of acquired lands reversed and cause of action dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HUSBAND AND WIFE -- Death of Husband -- Partition. Where a husband, acting under a power of attorney, collects money due his wife, and with such money pays the purchase-price of a tract of land, taking the legal title in his own name, but thereafter disclaims his ownership of the land and refers to it as the property of his wife, after his death partition of the land will not be awarded at the suit of the children of the husband and wife claiming an interest in the property as his heirs-at-law as against the widow claiming to own the property.

2. FRAUD -- Limitation of Action -- Constructive Notice Sufficient. The phrase, "until discovery of the fraud," in subdivision 3 of section 18 of the code (Gen Stat. 1901, § 4446), which provides the limitation of two years in case of "action for relief on the ground of fraud," and which also provides that "the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud," does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed, for constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual notice. Where the means of discovery lie in public records required by law to be kept which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set. the statute in motion.

3. FRAUD -- Accounting to Heirs by Administrator Guardian -- Limitation of Action. When an action for relief on the ground. of fraud is brought by children against their mother, who acted as administratrix of their father's estate, and also as their guardian, but is not brought until eighteen years after the estate was settled, and eight years after the guardian's account was closed and the youngest child had arrived at majority, a finding from the evidence that the fraud was discovered by an actual examination of the accounts of their mother with the probate court, made within two years of the date of the commencement of the action, is not. a sufficient finding that the fraud was not discovered prior to that time, to remove the case from the operation of the statute of limitations.

James D. Snoddy, for plaintiffs in error.

W. P. Dillard, L. C. Boyle, and. A. Lane, for defendants in error.

POLLOCK, J. DOSTER, C. J., JOHNSTON, ELLIS, JJ., concurring.

OPINION

POLLOCK, J.:

These are separate proceedings in error between the same parties, prosecuted from one decree. The records are exceedingly voluminous. The facts to be gleaned therefrom, briefly stated, are as follows: James G. Black died intestate on the 14th day of May, 1877, leaving surviving him his widow, Phebe A. Black, and eight children, whose names and dates of birth are as follows: Elizabeth E., December 16, 1861; William R., April 23, 1863; Charles N., April 6, 1865; Anna J., July 25, 1867; Maggie E., February 21, 1869; Ida E., January 7, 1871; Lillie H., April 19, 1872; Alfred J., April 11, 1877. One child, a son, born December 14, 1874, died August 11, 1875. At the time of his death, James G. Black was the owner of what is called in the record the "home place," including the Paola farm, containing 1794 acres, and a large amount of personal property. He also held in his name the legal title to 365 acres of land designated in the record as the "Big Leg place," which land was purchased by James G. Black and title taken in his name with money of Mrs. Black, by him collected under power of attorney in the state of Iowa from the estate of the father of Mrs. Black. After the decease an inventory and appraisement of the personal property of the estate was made, estimating the value thereof, less property set off to the widow and children, to be $ 14,493.61. The widow, the brother of the deceased, William Black, and the brother of the widow, Nathan Dupont, were duly appointed and qualified as administrators of the estate, giving bond in the sum of $ 20,000.

At the first annual settlement of the estate the administrators charged themselves with the appraised value of the personal estate. It appears from the record that the administrators acted upon the assumption that the widow had the right to take the personal property at its appraised value and to account to the court for the same; that she did so do, and that she proceeded in the handling of the property as though it were her own property, and that the administrators continued the administration of the estate, accounting only for its appraised value and interest thereon at the rate of seven per cent. for one year to the court. Annual settlements were made each year, and at the expiration of three years notice of final settlement was given, and on July 26, 1880, an order of final settlement was entered in the probate court, the administrators and their bondsmen discharged, and the estate closed. Upon application of the widow, she was appointed guardian of the estate of her then minor children, and in her first account as guardian charged herself with $ 7366.81, the same being one-half of the amount remaining on hand at the date of the final settlement of the administrators, as shown thereby. On the 22d day of November, 1890, all of the children, with the exception of Alfred J., having arrived at majority, the following order was made by the probate court in the guardian proceedings:

"Now, on this 22d day of November, A. D. 1890, comes Phebe A. Black, guardian, and filed her annual settlement with said estate, and the court finds a balance in her hands belonging to the said heirs of the sum of $ 8971.09; and further, that William R., Charles N., Anna J., Maggie E., Ida E. and Lillie H. Black, having arrived at the age of maturity, it is ordered the said guardian pay to them their full distributive share of $ 1121.38 each, and file receipts therefor in this court, at which time she, together with the sureties upon her bond, will be discharged from further responsibility as to the heirs that have arrived at the age of majority. It is further ordered that the said Phebe A. Black pay to Elizabeth E. Black, heir of James G. Black, the sum of $ 1121.38, and file her receipt therefor.

JOHN C. COLLINS, Probate Judge."

Charles N. Black was present in court at the time this order was made. On the 15th day of December, 1890, the following order was made in the guardian proceedings:

"Now, on this 15th day of December, 1890, comes Phebe A. Black and files her receipts in full for full distributive shares of the personal estate of James G. Black, deceased, from Anna J. Black, Ida E. Black, Maggie E. Black, William R. Black, Charles N. Black, Lillie H. Black, and Elizabeth E. Black, and it appearing to the court that said heirs have arrived at the age of majority, it is further ordered that said guardian, together with the sureties on her bond, be discharged from further responsibilities from this date.

JOHN C. COLLINS, 0Probate Judge."

To each of the children of age the guardian paid the sum of $ 1121.38 and took the following receipt:

"PAOLA, Kan., November, 1890.

"Received of Phebe A. Black, guardian, the sum of $ 1121.38, one thousand, one hundred and twenty-one dollars and thirty-eight cents, being the full amount due me as my distributive share in the personal property of the estate of James G. Black, deceased."

The receipt taken from Elizabeth Black was in the same form, except the word "guardian" was omitted therefrom, she being of age at the time the guardian proceedings were instituted.

During the period of administration Mrs. Black bought out of money in her hands, and took title in herself to, 635 acres of land at a cost of $ 2384. During the period of guardianship she purchased and took title in her own name to 1154 acres of land, and paid therefor $ 3146. After November 22, 1890, the time settlement was made with all of the children except the youngest, Alfred J., she purchased and took title in her own name to 690 acres of land, for which she expended $ 8076. These tracts of land are denominated in the record "acquired lands." The record further shows that from the year 1879 to the date of this action the widow paid out of the common fund taxes assessed against the different properties in the sum of $ 12,264.50; that she placed improvements upon the home property from the same source of the value of $ 10,000; that she managed the property with great intelligence and prudence; during all the years worked hard; maintained a good home for herself and the children; gave the children a common-school education, and then sent them to the best colleges and universities in the state; paid for their education out of the common fund; fitted them for teaching and other useful occupations in life; during all the time provided them free of charge with all the necessaries and many of the luxuries of life, and in every way, with the assistance of the children, built up, increased, and cared for the large property in her hands, at the same time rearing her children to useful manhood and womanhood.

This action was brought on the 29th day of October, 1898, by Maggie E. Black, for the purpose of obtaining a decree of partition of all the lands mentioned herein; that is to say the "home place," including the Paola farm, the "Big Leg place," and the "acquired lands"; and also for the...