McAdow v. Boten

Decision Date09 May 1903
Docket Number13,146
Citation67 Kan. 136,72 P. 529
PartiesMARY B. MCADOW et al. v. ADNA BOTEN et al
CourtKansas Supreme Court

Decided January, 1903.

Error from Atchison district court; W. T. BLAND, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE PROBATE COURT--Fraud--Jurisdiction of District Court. Where a fraudulent claim is presented to the probate court against the estate of a deceased person, and the administrator and claimant conspire together to secure its allowance, and land is sold to satisfy the demand and bid in by the claimant, the sale approved, and the administrator discharged, the district court has jurisdiction of an action to set aside the proceedings and to annul the deed.

Jackson & Jackson, for plaintiffs in error.

C. D. Walker, and J. L. Berry, for defendants in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was a suit brought in the district court by Mary B. McAdow and others, heirs at law of Elizabeth Boten, deceased, to set aside an order of the probate court of Atchison county, allowing a demand against the estate in favor of Adna Boten in the sum of $ 662, and to vacate and annul a subsequent order directing a sale of real estate to satisfy the same, and an order approving the sale and directing a deed to be made to said Adna Boten, the purchaser.

The petition alleged that there was a conspiracy between the administrator and Adna Boten for the purpose of fraudulently imposing upon the probate court, and inducing it to allow his claim against the estate, in pursuance of which one Minstrall was appointed administrator, and he consented to the allowance of the demand; that the whole of the amount allowed was fraudulent and unjust; that the decedent during her lifetime was not indebted to Adna Boten in any sum whatever, all of which the administrator well knew; that the conspiracy involved the fraudulent obtaining of title to a tract of land owned by the decedent; that the same was sold on the petition of the claimant, bought in by Adna Boten, and a deed executed to him by the order of the probate court at the instance of the administrator; and thereafter the estate was wound up and the administrator discharged. The claim was allowed February 6, 1900, the land sold February 10 following, and plaintiffs below first had knowledge of the proceedings in April, 1900.

This action was commenced April 8, 1901. The petition prayed that the allowance of the claim in the probate court be set aside and vacated, that the deed made by the administrator be annulled, and that the real estate be decreed the joint property of the heirs of Elizabeth Boten, deceased, in the proportion that they inherited the same, and that the property be partitioned among the parties. A general demurrer was sustained to this petition on the ground that it did not state facts sufficient to constitute a cause of action.

We think the court below erred in sustaining the demurrer. It is unnecessary to look beyond the decisions of this court for authority to uphold the equitable power of the district court in cases like the present. In Shoemaker v. Brown, 10 Kan. 383, comment was made on the full chancery...

To continue reading

Request your trial
8 cases
  • Weyant v. Utah Savings & Trust Co.
    • United States
    • Utah Supreme Court
    • March 27, 1919
    ...v. Crummey (Okl.) 166 P. 691; Vanhorn v. Nestoss, 99 Wash. 328, 169 P. 807; Gafford v. Dickinson, 37 Kan. 287, 15 P. 175; McAdow v. Boten, 67 Kan. 136, 72 P. 529; 18 Cyc. 908 and notes; Sohler v. Sohler, 135 Cal. 323, 67 P. 282, 87 Am. St. Rep. 98; Aldrich v. Barton, 138 Cal. 220, 71 P. 169......
  • Swinehart v. Turner
    • United States
    • Idaho Supreme Court
    • February 23, 1924
    ...the Turners perpetrated such a fraud upon the probate court as would deprive the court of jurisdiction to confirm the sale. (McAdow v. Boten, 67 Kan. 136, 72 P. 529.) possessing general equity jurisdiction have power to grant proper relief in all cases of fraud. (Busenbark v. Busenbark, 33 ......
  • Shuckrow v. Maloney
    • United States
    • Kansas Supreme Court
    • October 8, 1938
    ... ... 98, 45 P.2d 867 ... To ... justify the present action and the judgment entered thereon, ... the appellees cite the case of McAdow v. Boten, 67 ... Kan. 136, 72 P. 529. That case does sanction an independent ... lawsuit for relief on account of collusive fraud perpetrated ... ...
  • James v. Young
    • United States
    • Kansas Supreme Court
    • May 6, 1922
    ...suspend, modify, or perpetually enjoin a judgment, are direct proceedings." ( Busenbark v. Busenbark, 33 Kan. 572, 7 P. 245; McAdow v. Boten, 67 Kan. 136, 72 P. 529; v. Bundrick, 72 Kan. 182, 83 P. 403; Railway Co. v. Lasca, 79 Kan. 311, 99 P. 616; 1 Black on Judgments, § 297; VanFleet's Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT