Gafford v. Dickinson

• Decision Date: 08 October 1887
• Citation: 37 Kan. 287,15 P. 175
• Parties: MARY GAFFORD, and MARY GAFFORD as Guardian and next friend of Samuel Boyd Dickinson, v. JOHN C. DICKINSON as Administrator of Samuel P. Dickinson, deceased, et al
• Court: Kansas Supreme Court

15 P. 175

37 Kan. 287

MARY GAFFORD, and MARY GAFFORD as Guardian and next friend of Samuel Boyd Dickinson, v. JOHN C. DICKINSON as Administrator of Samuel P. Dickinson, deceased, et al

Supreme Court of Kansas

October 8, 1887

Error from Brown District Court.

The opinion states the nature of the action, and the facts. At the September Term, 1885, the court sustained defendants' demurrer to plaintiffs' petition. To reverse this ruling the plaintiffs bring the case to this court.

Judgment reversed, and cause remanded.

W. D Webb, for plaintiffs in error.

W. W Guthrie, Ira J. Lacock, and James Falloon, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The only questions involved in this case arose upon a demurrer to the plaintiffs' petition. The petition states, among other things, as follows: On November 5, 1879, William Boyd Dickinson died, leaving as his heirs a wife, Mary Dickinson, now Mary Gafford, and one child, Samuel Boyd Dickinson; he also left a large amount of property, both real and personal. He also left three brothers, Samuel P. Dickinson, Martin Boyd Dickinson, and John C. Dickinson, and one sister, Susan C. Dickinson. After the death of William Boyd Dickinson, Samuel P. Dickinson, Martin Boyd Dickinson, and Susan C. Dickinson, who are now the defendants in this action, entered into a conspiracy to cheat and defraud the said Mary Dickinson, who is now the plaintiff in this action, and Samuel Boyd Dickinson, her minor son, out of their interest in the aforesaid estate of William Boyd Dickinson, and in pursuance thereof it is alleged that --

"Samuel P. Dickinson came to the plaintiff, and represented to her that he was her friend, and reminded her that he was the brother of her deceased husband, and told her that the estate was large, and that she was not accustomed to doing business; that she could not settle up the estate, and proposed to her that he would do it for her. He further stated to her that he understood all about the business, having come out of it but a short time before, and that he could and would guard it for her from absorption, and protect her interest and that of her child from being wasted or obtained by anybody, and would preserve it for them. That this plaintiff, relying on these and other protestations and representations, and reposing great trust and confidence in the said Samuel P. Dickinson, and believing that he would carefully guard and protect the interest of the said estate, and would preserve the same for her and her said child, who are the only heirs of the said William B. Dickinson, agreed to receive his counsel and be governed by his advice in regard to all matters pertaining to said estate; that she was stricken with grief and unaccustomed to doing business, and naturally looked for some one to rely upon, and that the defendant Samuel P. Dickinson, taking advantage of her forlorn and desolate situation and the relation of brother to her deceased husband, gained her entire confidence, and she relied implicitly in his friendship and integrity, and actually surrendered to him the management and control of her interest and the interest of her said minor child."

In pursuance of the aforesaid conspiracy, the following things occurred, and were had and done: No administrator was appointed until June 15, 1881, when Martin Boyd Dickinson was appointed, and on June 17, 1881, John C. Dickinson was appointed guardian for the minor son, Samuel Boyd Dickinson. Martin Boyd Dickinson failed and refused as administrator to make an inventory of a large proportion of the property belonging to the estate, and made a false inventory of the remainder. He also permitted a large amount of false and fraudulent claims to be allowed against the estate and in favor of Samuel P. Dickinson and Susan C. Dickinson, and paid them from the estate. He also sold at private sale and conveyed to Samuel P. Dickinson, for himself and Samuel P. jointly, a large amount of the real estate belonging to the estate, at about one-third of its real value. The conspirators at the proper times fraudulently procured from the probate court all the necessary orders to enable the administrator to perform these acts.

"And this plaintiff further alleges that she did not discover any of the frauds above set forth until long after they were consummated, and all of them were discovered within the last six months by her; that all of the above and foregoing facts, matters and things are the result of an agreement and conspiracy entered into between the defendants in this suit for the purpose of cheating and defrauding said estate, and for the purpose of cheating and defrauding this plaintiff and her said ward and minor child, only heirs of the said William B. Dickinson, deceased, and that the entire administration of said estate is illegal and void for the reasons above set forth."

A final settlement of the estate by the administrator, with the probate court, was had on June 28, 1884, and the administrator was discharged.

"But that this plaintiff was not present at such settlement; that she was persuaded to stay away therefrom by the said Samuel P. Dickinson, he representing to her that her presence was unnecessary and that he would attend to her interests there and that she could not understand it in any event; and that, relying on him, the said Samuel P Dickinson, and not then having discovered that he and the said Martin B. Dickinson were absorbing said estate and cheating and...