111 Neb. 350 | Neb. | 1923
The petition in this case alleges in substance that plaintiffs were the owners of about 200 acres of land in Dixon county, 'by inheritance from Thomas McClusky; that Mc-Clusky died on February 26, 1900, leaving a will, a copy of which is ma.de a part of the petition; that the will, in so far as it provides a trust fund for masses for the repose oí -he soul of the testator, is void, the trust provisions being too indefinite, and that the plaintiffs are each entitled to the shares of the intestate estate as set forth in the petition; that the will was probated, and on March 26, 1900, defendant Patrick McGuirk was appointed executor; that on July 23, 1901, McGuirk fraudulently and wrongfully conveyed the real estate of the decedent to one Patrick 'Gunn, his brother-in-law, without consideration, for the
The petitioners, who are the grandchildren of Thomas McClusky, base their right to relief upon two separate and distinct grounds. The first question presented is whether the allegations as to the fraudulent sale to the executor, or to his wife for his benefit, state a cause of action.
It is the duty of an executor to act in good faith toward the estate of which he is a trustee. It is also unlawful for him to become a purchaser, either directly or indirectly, at any sale of the real estate belonging to the estate of which he is executor. Comp. St. 1922, sec. 1408; Johnson v. Erickson, 110 Neb. 511. Such sales are voidable, but not void. Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892. Ordinarily a fraudulent sale by an executor will be set aside at the suit of interested parties. But they must act with reasonable diligence. Plaintiffs derive all their' interest, if any, in the estate by inheritance from their respective parents. There is nothing in the petition to show that each of these parents did not have full knowledge of the facts with respect to the alleged fraudulent scheme as soon as the deed from MeGuirk to Gunn was executed and placed of record, or that any of them were dead when the will was probated and the deed recorded, or that they had no knowl-'
As to the second point: The alleged invalidity of the' trust provisions of the will was as plainly manifest when the will was probated as it is now. The petition was filed 20 years afterward. The law aids the vigilant, and not those who have slept upon their rights for, such a period of: time. The same principles apply in this connection as discussed with reference to the attack on the conveyance made by the executor.
Affirmed.