Latshaw's Estate, In re

• Decision Date: 15 May 1965
• Docket Number: No. 44056,44056
• Citation: 194 Kan. 747,402 P.2d 323
• Parties: In the Matter of the ESTATE of Edna Charles LATSHAW, Deceased. Martha Jane HUMPHREYS, Appellant, v. Robert W. LATSHAW, Maryland Casualty Company, and William G. Gray, Successor, Administrator, Appellees.
• Court: Kansas Supreme Court

Page 323

402 P.2d 323

194 Kan. 747

In the Matter of the ESTATE of Edna Charles LATSHAW, Deceased.

Martha Jane HUMPHREYS, Appellant, v. Robert W. LATSHAW, Maryland Casualty Company, and William G.

Gray, Successor, Administrator, Appellees.

No. 44056.

Supreme Court of Kansas.

May 15, 1965.

Syllabus by the Court

1. This court will not weigh conflicting evidence on appeal but will examine the record only for the purpose of determining whether there is substantial and competent evidence to support the judgment.

2. The burden of proving factual fraud is upon the party asserting it. It is never presumed and must be established by clear and convincing evidence.

3. After the expiration of thirty days from the date of a judgment a probate court may set it aside only on such grounds as are provided by the Code of Civil Procedure.

4. Fraud which will support a petition to set aside a judgment under the provisions of G.S.1949, 60-3007 Fourth must be actual--presumptive or constructive fraud is not sufficient.

5. In an action to set aside a judgment of final settlement because of fraud in obtaining a release and waiver of accounting in the administration of a decedent's estate, the record is examined and it is held there was evidence to support the trial court's finding and judgment denying the relief requested.

Walter J. Kennedy, Kasnas City, Mo., argued the cause, and Roger T. Hurwitz, Kansas City, Mo., and John J. Gardner, Olathe, were with him on the briefs for appellant.

P. B. McAnany, Kansas City, argued the cause, and Willard L. Phillips, Thos. M. Van Cleave, Jr., James J. Lysaught and John J. Jurcyk, Jr., Kansas City, were with him on the briefs for appellees.

HATCHER, Commissioner.

This is an appeal from a judgment of a district court reversing an order of a probate court. The order of the probate court set aside an order of final settlement in the administration of a decedent's estate.

Edna Charles Latshaw died intestate on November 26, 1956, a resident of Johnson County, Kansas, and was survived by her husband, Robert W. Latshaw, and her daughter, Martha Jane Humphreys, nee Latshaw. On November 27, 1956, Robert W. Latshaw filed a petition for probate of the estate of Edna Charles Latshaw. He was appointed administrator on December 21, 1956, and gave bond as administrator in the penal sum of $169,000.00 with Maryland Casualty Company as surety. The inventory filed in the estate listed property appraised at an aggregate value of $153,457.44. On May 14, 1959, an assignment dated September 25, 1958, whereby Robert assigned all of his interest in the estate to Martha, was filed in the probate court. On May 21, 1959, Robert filed his Petition for Confirmation of his account as administrator of the estate.

On June 16, 1959, Martha filed a petition for partial distribution of the estate, and also filed her petition for discharge of her guardian ad litem alleging that she had attained the age of majority on the 1st day of March, 1957. On June 16, 1959, the probate court entered its order discharging Martha's guardian ad litem and also entered an order denying confirmation of the account of Robert as administrator with certain exceptions therein noted.

On June 30, 1959, Martha filed a release in the probate court releasing Robert, her father, and his corporate surety from liability to her for discrepancies which came to light by virtue of the accounting of the administrator and its denial by the probate court. This release was drawn by the attorney for the estate; was explained to Martha, and was executed by her in the office of the attorney before a notary.

On the 21st day of September, 1959, Martha petitioned the court for partial distribution. The order allowing partial distribution was entered on the same day with the additional order that the administrator pay all outstanding obligations and close the estate within thirty days. On November 2, 1959, Robert filed his petition for final settlement of the estate in the probate court. The petition was acknowledged before the probate judge. Attached to the petition was a waiver of accounting by the administrator signed by Robert and Martha, the sole heirs at law of Edna Charles Latshaw, and acknowledged before the probate judge. On December 9, 1959, after due notice to all interested parties, the probate court entered an order of final settlement in the estate.

Martha filed her petition to set aside the order of final settlement and for other relief on August 16, 1961, in the Probate Court of Johnson County, Kansas. Proper service on the interested parties was obtained. As grounds for setting aside the order of final settlement the petition alleged:

'* * * On the occasions of executing said documents petitioner did not know, and Latshaw fraudulently and with wrongful intent, and in violation of his fiduciary duty as administrator of the estate and father of petitioner, concealed from her the following facts: that he had failed to properly discharge his trust as administrator of the estate, including a proper accounting for all monies and properties coming into his possession as such administrator; that, without the authorization of the court, he had withdrawn funds from the estate; that without the authorization of the court, he had converted certain assets to cash; that without the authorization of the court, he had made numerous other disbursements of the funds of the estate; and that the court had made and entered an Order Denying Confirmation of his account as administrator.'

The district court made findings of fact and conclusions of law in which it found against the petitioner and concluded:

'The Release filed on June 30, 1959 was effective to release the Administrator and his surety for discrepancies which had taken place prior to that date, and the Waiver and Release signed on November 2d was effective to waive an accounting and release the Administrator and the surety for discrepancies occurring prior to the Order of December the 9th, 1959.

'The Order of October 9, 1962 should be reversed insofar as it sets aside and renders void the Final Settlement entered by the Probate Court on December 15, 1959.'

The petitioner has appealed.

Appellant contends that the trial court's findings are clearly erroneous in their failure to find that the appellee, Robert W. Latshaw, obtained the order of final settlement by extrinsic fraud. Appellant alleged in her petition that the appellee, Latshaw, was guilty of actual fraud in obtaining the release and the waiver of accounting. The actual fraud consisted of concealment from the appellant, with wrongful and fraudulent intent, the fact that he had converted certain assets to cash and withdrawn funds from the estate without authorization of the court. That such concealment would constitute actual fraud is not disputed. (Beneke v. Bankers' Mortgage Co., 135 Kan. 444, 10 P.2d 825; Larrick v. Jacobson, 139 Kan. 522, 32 P.2d 204; Jenkins v. McCormick, 184 Kan. 842, 339 P.2d 8.)

However, the district court found contrary to appellant's contentions. It specifically found:

'The Court finds that Martha J. Latshaw was present at the hearing for the confirmation of the account and was duly informed that the confirmation was denied for the reason that the Administrator had paid certain claims which had not been allowed by the Court and had made large and substantial withdrawals from the estate to his personal account and to the joint account of Robert W. Latshaw and Martha J. Latshaw, without authorization by the Court. And for the further reason that certain assets of the estate had been disposed of without authorization of the Court.

'The Court further finds that Martha J. Latshaw was aware at this time of what the money withdrawn from the estate was being used for and that she affirmatively acquiesced in her father's representation that the estate belonged to them, the Latshaws, and that they should be able to do with it as they saw fit.

'On June 30, 1959, Martha Jane Latshaw filed her Release in the Probate Court, releasing her father and his corporate surety from liability to her for discrepancies which had come to light by virtue of the accounting of the...