Carden v. McGuirk

• Decision Date: 31 December 1923
• Docket Number: 22588
• Citation: 196 N.W. 698,111 Neb. 350
• Parties: BERNARD J. CARDEN ET AL., APPELLANTS, v. PATRICK MCGUIRK ET AL., APPELLEES
• Court: Nebraska Supreme Court

196 N.W. 698

111 Neb. 350

BERNARD J. CARDEN ET AL., APPELLANTS, v. PATRICK MCGUIRK ET AL., APPELLEES

No. 22588

Supreme Court of Nebraska

December 31, 1923

APPEAL from the district court for Dixon county. GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Henderson Fribourg & Hatfield and W. D. McCarthy, for appellants.

J. J McCarthy and A. R. Davis, contra.

Heard before MORRISSEY, C. J., LETTON, DAY and GOOD, JJ., REDICK, District Judge.

OPINION

LETTON, J.

The petition in this case alleges in substance that plaintiffs were the owners of about 200 acres of land in Dixon county, by inheritance from Thomas McClusky; that McClusky died on February 26, 1900, leaving a will, a copy of which is made a part of the petition; that the will, in so far as it provides a trust fund for masses for the repose of the soul of the testator, is void, the trust provisions being too indefinite, and that the plaintiffs are each entitled to the shares of the intestate estate as set forth in the petition; that the will was probated, and on March 26, 1900, defendant Patrick McGuirk was appointed executor; that on July 23, 1901, McGuirk fraudulently and wrongfully conveyed the real estate of the decedent to one Patrick Gunn, his brother-in-law, without consideration, for the purpose of cheating and defrauding these plaintiffs, and with the understanding and arrangement that Gunn would at a later date convey the real estate to the executor or to some person acting for him; that on March 3, 1916, Gunn, in pursuance of this fraudulent scheme, conveyed the real estate to Catherine McGuirk, the wife of the executor, and he and his wife are now claiming title to the same; that plaintiffs did not discover this fraudulent intent and purpose until January, 1920; that, if there was any consideration for the conveyance from Gunn to Mrs. McGuirk, it was furnished by her husband. The prayer is that the fee title to the real estate be quieted in plaintiffs, that defendants be barred from claiming any interest in the same, and that the trust provisions of the will be declared void. A general demurrer to the petition of plaintiffs was sustained by the district court, and the action dismissed.

The petitioners, who are the grandchildren of Thomas McClusky, base their right to relief upon two separate and distinct grounds. The first question presented is whether the allegations as to the fraudulent sale to the executor, or to his wife for his benefit, state a cause of action.

It is the duty of an executor to act in good faith toward the estate of which he is a trustee. It is also unlawful for him to become a purchaser, either directly or indirectly, at any sale of the real estate belonging to the estate of which he is executor. Comp. St. 1922, sec. 1408; Johnson v Erickson, 110 Neb. 511, 194 N.W. 670. Such sales are voidable, but not void. Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, 86 N.W. 982. Ordinarily a fraudulent sale by an executor will be set aside at the suit of interested parties. But they must act with reasonable diligence. Plaintiffs...