Fincke v. Bundrick

• Decision Date: 11 November 1905
• Docket Number: 14,211
• Citation: 83 P. 403,72 Kan. 182
• Parties: CHRISTIAN W. FINCKE et al v. JULIA K. BUNDRICK
• Court: Kansas Supreme Court

83 P. 403

72 Kan. 182

CHRISTIAN W. FINCKE et al v. JULIA K. BUNDRICK

No. 14,211

Supreme Court of Kansas

November 11, 1905

Decided. July, 1905.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

FRAUD--Sale of Decedent's Land by Executor to his Surety--Setting Aside. A sale of real estate belonging to the estate of a deceased testator, made by an executor to the surety on his bond under an order of the probate court procured through the fraud of the executor, may be set aside at the suit of a devisee, even although the surety was ignorant of the dishonest conduct of his principal.

Philip Erhardt, and L. W. Keplinger, for plaintiffs in error.

C. W Trickett, and Samuel Maher, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

Julia Fincke died leaving a will in which she bequeathed her personal property in equal shares to her son, C. W. Fincke, and her daughter, Mary Bundrick, and devised her real estate, one-half to Julia, the daughter of Mary Bundrick, and one-half to her son, C. W. Fincke. The will also contained the following provisions:

"My said son, Christian W. Fincke, is to have full power to handle, take charge of and collect the rentals of said real estate until such time as it shall be ordered to be sold by the court of proper authority, as it shall hereafter appear in said instrument that he is appointed as executor of this, my last will and testament.

"All costs and expenses of administration upon my estate shall be paid from the proceeds of the sale of the said above-described real estate, and the balance shall be equally divided as above stated."

This will was duly probated, and C. W. Fincke qualified as executor under it. His bond as such executor assured a faithful administration of the estate, and was signed by Christian Schoeller. Something more than a year after his qualification the executor presented to the probate court a petition for the sale of the real estate described in the will. The terms of the will were set forth, and the statement was made that the costs and expenses of administering the estate would amount in the aggregate to the sum of $ 410.17. No reference was made to any debts of the testatrix. An order of sale was granted, and further proceedings were had, resulting in a sale of the land to the executor's bondsman for the sum of $ 775. The sale was approved, and an executor's deed was issued and recorded.

Subsequently to these proceedings the executor made a final settlement of the estate. In his final account he brought forward against the proceeds of the sale of the land items of various kinds aggregating $ 799.91, but he acknowledged receiving rents from the real estate in the sum of $ 111.50, and therefore admitted having in his hands a balance of $ 86.59, one-half of which, or $ 43.29 1/2, he said belonged to Julia Bundrick as a devisee of her grandmother's land. This accounting was approved by the probate court, but the executor did not pay to Julia her share of the money. The account states that it was deposited in court, but she has never received it. During the time covered by the administration of the estate Julia Bundrick was a minor, and, so far as the record shows, without a guardian. She was unrepresented in the proceedings in the probate court, and she was ignorant of the sale of her property until after she became of age. After reaching her majority she discovered and investigated the facts, and brought the suit in the district court from which this proceeding in error arises.

In her petition, as it was finally amended, she related the foregoing facts, charged that at the time the petition for the sale of the real estate was filed the costs and expenses of administration amounted to only $ 64; that all other items of the $ 410.17 were falsely and fraudulently asserted against the land; that the order of sale was procured through the fraud and imposition of the executor upon the probate court; that the sale to the bondsman was a device by which the executor might himself acquire the entire title to the property; that the final account, by means of which the proceeds of the sale were more than consumed, was fraudulently concocted; and that the final settlement was fraudulent and void. The petition contained other attacks upon the validity of the probate proceedings and the conduct of the executor and his bondsman, and other allegations essential to the relief demanded were made. Such relief consisted in setting aside the probate proceedings relating to the sale of the land, canceling the executor's deed, placing the plaintiff in possession, decreeing partition, and awarding damages for rents and profits. After a trial the court granted substantially the prayer of the petition.

In this court the executor and his bondsman make the following assignments of error:

"(1) Said judgment was in favor of defendant in error when it should have been in favor of each of plaintiffs in error.

"(2) The court erred in overruling the motion of each of plaintiffs in error for a new trial."

The first assignment of error amounts to nothing. It merely asserts that the judgment was wrong. The only proposition contained in the motion for a new trial which the defendants argue in their brief is that the decision of the trial court is not sustained by sufficient evidence, and is contrary to law. That, therefore, is the limit of the present inquiry.

There is evidence in the record to show that the executor began his administration by filing a false inventory, in that he failed to list a note of $ 800 due from himself. After citation and a trial he was ordered by the probate court to include this note among the assets of the estate, whereupon he compromised with his colegatee for her interest in the personal property on a basis confessedly below its value. He then undertook to relieve the personal property of every kind of liability and to make the land, which had been charged with costs and expenses of administration only, bear all the obligations which the personal property alone should have paid. But apparently he was not satisfied with this. Conceiving that the surviving husband of the devisor had a one-half interest in the land, he obtained from such survivor a quitclaim deed of the real estate to himself. The deed, however, conveyed nothing, because the terms of the will had been assented to, and so he attempted to charge the sum paid therefor against the real estate. He included $ 100 of the amount in the "costs and expenses of administration" referred to in the petition to sell the land, and actually reimbursed himself to that extent from the proceeds of the sale. The decedent left no debts. It cost nothing to collect the assets of the estate, except those due from himself, and yet, upon his showing, the real estate--two lots appraised at $ 700 and $ 300, respectively--proved insufficient to meet the costs and expenses of administration. When the estate was finally settled he had title to all the personal property and his only bondsman had title to all the real estate.

The orders of the probate court by which this astonishing result was accomplished appear to have been made in reliance upon the executor's sole oath to the truth and correctness of his accounts and proceedings. In the district court he was examined as a witness in reference to his conduct....