Hilton v. Nyberg

99 Neb. 387 | Neb. | 1916

Rose, J.

In the county court for Webster county plaintiff filed a petition to obtain a new trial and to vacate an order approving the final account of, and discharging, her guardian. Rev. St. 1913, sec. 8207. A demurrer to the petition was sustained and a new trial denied. After the time for tailing an appeal had expired, plaintiff filed in the district court a petition in error to review the county court’s order sustaining the demurrer. Defendant interposed objections to the jurisdiction of the district court and also demurred to plaintiff’s petition. Jurisdiction was entertained and the ‘ demurrer was overruled. Defendant has appealed.

The first contention of defendant is that an error proceeding is not available to review a county court’s order, made in the exercise of probate jurisdiction. In principle, this point is met by a former ruling to the contrary. Engles v. Morgenstern, 85 Neb. 51. Tbe fair import of that decision is that an error proceeding is available for tbe review of a final order of tbe county court, made in tbe exercise of probate jurisdiction, notwithstanding tbe repeal of section 581 of tbe Code.

Defendant insists that tbe petition fails to state facts constituting grounds for setting aside tbe order of tbe county court. Plaintiff, tbe ward, alleged that, within five days after she reached tbe age of eighteen years, defendant, tbe guardian, conducted her to the county court and caused her to sign tbe following statement:

“I am fully advised of tbe indebtedness of $266.95 charged against me in tbe report presented by my guardian of this date, and that tbe same is acknowledged to be just and satisfactory to me, and I hereby agree to make satisfactory settlement of tbe same, and ask that the said report may be allowed and the guardian discharged from further service in her said capacity as guardian.”

Tbe petition is not above criticism, but, considered as a whole, it fairly states facts showing that tbe statement quoted was falsé; that tbe ward, without knowledge of its import or time for' investigation, signed it through tbe fraud of her guardian in whom she still reposed trust and confidence; that on the reverse side of the statement there appeared a purported final account of which tbe ward had no knowledge; that tbe order discharging tbe guardian and finding that her ward was indebted to her in tbe sum of $266.95 was based on tbe fraudulent statement; that tbe items composing, tbe simulated indebtedness were not proper charges against tbe ward; that tbe guardian did not account for rents and profits arising from tbe ward’s lands; that no itemized account of tbe guardian’s receipts and expenditures was ever presented to tbe county court; that tbe guardian never made a complete disclosure of tbe amounts received by her, and that such amounts are unknown to tbe ward, but will be disclosed at tbe trial.

Considering the petition in its entirety in connection with the duties of the guardian and the confidential relation of the parties, the allegations should not be held insufficient, when tested by a general demurrer. A statutory ground for a new trial is “fraud practiced by the successful party in obtaining the judgment or order.” Rev. St. 1913, sec. 8207. The following is a general rule:

“A guardian is bound to make full disclosure to the court of his transactions, and the law requires of him the exercise of the utmost good faith. He must not conceal any material fact, nor untruthfully represent any matter to the court.” Slauter v. Favorite, 107 Ind. 291, 298.

In Levi v. Longini 82 Minn. 324, it was said: “If the written consent and receipt were obtained by fraud, they were nullities, constituting not only a wrong upon the party injured, but they were an imposition upon the probate court also.”

In Willis v. Rice, 141 Ala. 168, the opinion contains the following pertinent observations: “It is distinctly charged that an accounting and settlement has never been had. It is true it appears from the bill that the respondent was discharged by the decree of the probate court as on a settlement, but it is shown by the bill in this connection that such discharge was procured by the respondent without an accounting and settlement, and on a paper prepared by himself, which he influenced the complainants to sign, and which in fact was untrue in its statements. * * * There is no merit in the assignment that it is not shown howr the respondent took advantage of the complainants in the matter of signing the paper acknowledging full settlement. His relation was one of greatest confidence and trust and called for the utmost of good faith. It was his duty to fully inform them of their rights in all respects. ' It charged that he took advantage of their youth and inexperience, and of his influence over them in getting them to sign the paper, which, they further charge, was untrue in its statements. This was sufficient. They were his wards, and from tender years had lived with him, and grown up under his care and control; and it requires no effort to understand how easily they might be influenced by him against their interests.”

The judgment of the trial court reflects the proper construction of the petition and the application of correct principles of law.

Affirmed.