64 P. 985 | Kan. | 1901
Ole E. Ladd was administrator of the estate of Hans Johnson, deceased. He was cited by the probate court to make final settlement of his trust. He filed his final report and gave notice of a time for making final settlement. November 30,1892, an order for final settlement was made. It is not clear that that was the day for which settlement was notified. The court found the sum of $526 to be in the administrator’s hands, and ordered distribution of it to be made to the heirs. February 13, 1893, Ladd procured the probate court to make an order setting aside the previous order of final settlement and allowing him to make such settlement anew. March 1, 1893, a second order of final settlement was made, and the balance remaining in the hands of the administrator adjudged to be only $134. In January, 1895-, Mai’y Nystol, as administratrix of the estate of Bertha Nystol, deceased, one of the heirs of Hans Johnson, filed her petition in the district court to set aside the order of February 13, vacating the first order of final settlement, and also to set aside the second order of final settlement, and, in addition, for a money judgment for her distributive portion of the estate, upon the ground that such orders were procured by the fraud of Ladd, the administrator, and without notice to the heirs of Hans Johnson. A demurrer to the petition for insufficiency of facts was overruled, and from the order overruling it error has been prosecuted to this court.
If the allegations of the petition state a case of fraud the action can be maintained; otherwise it cannot. The case of Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 15 Pac. 175, authorizes actions in equity in
It will be observed that the last two of the above-quoted allegations of fraud were of the most general character. No specific facts and circumstances were stated in them, and therefore no issue was presented by such parts of the petition. The decisions are full to the effect that general averments of fraud and illegality, without stating the facts upon which the charges are based, present no issue, and evidence thereunder is not admissible. (The State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727; K. P. & W. Rld. Co. v. Quinn, 45 id. 477, 25 Pac. 1068; Cohn et al. v. Goldman, 76 N. Y. 284.)
It will be observed that the grounds of fraud stated in the petition to set aside the order of the probate court of February 13, 1893, vacating its. previous order of final settlement were that Ladd had falsely claimed that such order of final settlement was made without notice to him. That order of February 13 was not an order of final settlement; it was an order vacating an order of final settlement; it was interlocutory in its nature ; it reopened the administration of the estate, and was not an adjudication which concluded anybody interested in the estate. It was not .an order with the making of which equity has to concern itself, because, admitting it to have been
It will be observed that the only specific allegation of fraud as to the .procurement of the final order of settlement of March 1, 1893, was that the administrator “at that time imposed upon the court and filed an exorbitant bill for his services as administrator, to wit, $625, and procured an order from said court allowing him said sum,” etc. This is not an allegation of fraud. Fraud cannot be predicated of the mere procurement by order of court of an exaggerated sum for services rendered. It will be observed that the petition did not allege that the administrator falsely claimed that he had performed services which in fact he had not performed, but it was only alleged that his charges for services were exorbitant in amount.
The petition utterly failed to state a cause of action. The judgment of the court below is reversed, with directions to sustain'the demurrer.