Lindholm v. Nelson

Decision Date11 February 1928
Docket Number27,839
Citation125 Kan. 223,264 P. 50
PartiesCLARA I. LINDHOLM, Appellee, v. EMIL F. NELSON, Appellant
CourtKansas Supreme Court

Decided January, 1928

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.



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.

Harvey J. Burch, J., not sitting.



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:

"1. The plaintiff was married to Axel Lindholm, a widower, on March 18, 1918, after having been his housekeeper for about a year. Her grandmother lived with her in the house all of the time and until after her husband's death. She had been married twice before. She married the first husband in Los Angeles, Cal., where she had lived five years. After the death of her first husband, which occurred at Los Angeles plaintiff moved to Arkansas, where she married her second husband. She lived with her second husband only a few months on a farm in Arkansas. Later she came to Kansas and obtained a divorce from him in this court. She was twenty-eight years of age at the time of the trial of the above-entitled cause.

"2. The first wife of Axel Lindholm was Sophia Anderson, daughter of one John Anderson and one Marie Anderson, sometimes called Walstrom. At the death of said Sophia Anderson, she left surviving her five daughters all of whom but the oldest were living at their father's home on land of the Walstrom estate at the time of his marriage with plaintiff.

"3. By his will John Anderson devised to his daughter Sophia an undivided one-half of the W 1/2 of the NE 1/4 of section 12-15-4 in Saline county, subject to the life estate of his widow. The widow declined to accept the provision for her in the said will, and the probate court set aside to her her share of her husband's estate. This did not include the land given to his daughter as aforesaid. Marie Anderson left by will to Axel Lindholm an undivided one-half of the E 1/2 of the NE 1/4 of said section 12. Sophia died intestate and Axel Lindholm thereby acquired an undivided one-half of the land she received from her father; and at his death Axel owned 40 acres of the W 1/2 and 40 acres of the E 1/2 of the NE 1/4 of section 12-15-4 and the S 1/2 of the SW 1/4 of section 6-15-3 in Saline county, and lot 5 in Block 14, Leavenworth addition to the city of Salina. The part of the Walstrom estate of which Axel Lindholm owned 80 acres was located about one mile from the home where plaintiff and her husband, Axel Lindholm, lived from the time she entered the Lindholm home until the death of said Axel. Both Marie Anderson and John Anderson died prior to the plaintiff's marriage to Axel Lindholm, and their wills had been probated in Saline county prior to that event. Following are copies of the will of said Marie Anderson and John Anderson: . . .

"4. Axel Lindholm died at his home in Saline county, January 23, 1923. The following day the plaintiff went to the Smolan State Bank where her husband had done his banking business and kept his papers, and there she obtained a loan of $ 500. While at the bank plaintiff and Alvin Carlson, president of the bank, and E. F. Nelson, the defendant, discussed the question of the appointment of an administrator for the Lindholm estate, and both Carlson and Nelson recommended the defendant Theodore Holmquist. Holmquist had been well acquainted with Axel Lindholm and had been a trustee of the township.

"5. A day or two after the meeting with Carlson and Nelson at the bank, as in the preceding finding, plaintiff requested Holmquist to act as administrator. Holmquist took the matter under advisement and about two days thereafter assented to act as administrator. At said time an uncle of the plaintiff, about 50 years of age, was visiting her, and directly after Holmquist said he would act as administrator, the plaintiff, her uncle, some of the Lindholm children and Holmquist went to the office of the probate court in Salina, and the probate judge advised the plaintiff that she had prior right to administer the estate of her husband if she desired, but during the day she signed a petition requesting the appointment of Holmquist as administrator. Holmquist filed an inventory of the property constituting the estate, including the real estate; but the real estate was not appraised, and the part of the Walstrom estate owned by Lindholm was in some way omitted from the inventory. This omission was subsequently discovered and in August of the same year, with the leave of the court, the inventory was amended to recite that Lindholm left the undivided one-half of the E 1/2 and the undivided one-half of the W 1/2 of the NE 1/4 of said section 12. Plaintiff called from time to time at the probate judge's office, sometimes with the administrator and sometimes alone, and made inquires of the probate judge concerning the administration proceedings, and at times looked over some of the claims presented against the estate. In August, 1923, at the request of the administrator the plaintiff called at the office of the attorney for the administrator to see if the inventory had been amended to include the Walstrom land, and she reported to the administrator that the correction of the inventory was receiving attention. The amended inventory was filed in the probate court in August, 1923, and remained of record in that court thereafter open to public inspection.

"6. Axel Lindholm left life insurance to his wife in the sum of approximately $ 4,700. This she received in February, 1923, and by the middle of the following July it had been spent for automobiles, living expenses and loans to her relatives and friends; and she had an overdraft in the Smolan State Bank, at which bank she kept all her money on deposit. In August, 1923, plaintiff made a loan upon her life insurance policy of about $ 200 for the purpose of taking up the overdraft at the Smolan bank.

"7. Plaintiff purchased two automobiles through the Smolan State Bank, at the request of Holmquist, and the bank got a commission on each automobile. One of these automobiles, a Buick for which she had paid $ 2,150, she sold to the defendant Holmquist in December, 1923, for $ 375, after she had driven it about 9,000 miles. The testimony does not disclose the condition of this automobile at the time it was sold to Holmquist.

"8. Axel Lindholm had been the guardian and trustee of the estate or estates of his children, which had been received by them from their grandparents, John and Marie Anderson, and upon his death Ralph Anderson of Salina, Kan., was appointed his successor as guardian and trustee. After the appointment of Ralph Anderson, the administrator Holmquist was advised that a claim would be presented against the Axel Lindholm estate for the sum of approximately $ 7,000 or $ 8,000 on account of what was claimed to have been excessive charges and fees made by Axel Lindholm while acting as such guardian and trustee. It appeared from the accounts filed by Axel Lindholm as such guardian and trustee, that he charged $ 500 per year for many years for his services, and charged several of his children for...

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