Lindholm v. Nelson
Decision Date | 11 February 1928 |
Docket Number | 27,839 |
Citation | 125 Kan. 223,264 P. 50 |
Parties | CLARA I. LINDHOLM, Appellee, v. EMIL F. NELSON, Appellant |
Court | Kansas Supreme Court |
Decided January, 1928
Appeal from Saline district court; DALLAS GROVER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. EXECUTORS AND ADMINISTRATORS--Assets--Real Estate. An administrator of an estate ordinarily has nothing to do with the real estate of the deceased when the same is not necessary to pay debts of the estate.
2. SAME -- Conclusiveness of Final Distribution as Between Heir and Third Party--Rescission of Sale of Interest. A widow executed a deed purporting to convey all of her title and interest in the real estate of her deceased husband, and also executed a bill of sale purporting to convey or assign her distributive share of the personal estate of her deceased husband. The grantee of the bill of sale presented the same to the administrator and probate court at the time of the final settlement of the estate and received the distributive share of the personal estate which would have been paid to the widow had it not been for the bill of sale. The widow sued the grantee in the deed and bill of sale to rescind the contract by which these instruments had been executed and to recover the property, or value thereof, purported to be conveyed, on the ground that she had been induced to execute them by conduct which amounted to fraud and deceit and for a consideration grossly inadequate. No question concerning the validity of the bill of sale was ever presented to or passed upon by the probate court. Held, that the final settlement in the probate court did not preclude the widow from maintaining her action of rescission.
3. FIDUCIARY RELATION--What Constitutes. A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.
4. SALES--Rescission of Contract. Under the facts found by the trial court, as stated in the opinion, it was not error to decree a rescission.
Z. C Millikin, of Salina, for the appellant.
Ralph Knittle, C. W. Butch, B. I. Litowich and La Rue Royce, all of Salina, for the appellee.
OPINION
This is an action for rescission and to set aside a deed and a bill of sale, executed by plaintiff, the widow of Axel Lindholm, to the defendant Nelson, of all her interest in the real property and personal estate of her husband for the reason that the same had been procured under such circumstances as amount to fraud and deceit and for a consideration grossly inadequate. The case was tried to the court, who made findings of fact and conclusions of law, and rendered judgment for plaintiff. The findings of the trial court best tell the story of the relations of the parties and what took place, as follows:
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