118 Kan. 534 | Kan. | 1925
The opinion of the court was delivered by
Charles W. McFarland, a resident of Douglas county, died in January, 1915. He left a purported will, which had been executed at a time when he was initiated into a secret order, and perhaps as a part of the ceremony of such initiation. By the terms of
The purported will was not offered for probate. The widow, Nellie N. McFarland, was appointed administratrix of the estate. She proceeded to administer the estate in the probate court, and was finally discharged as such administratrix on February 27, 1917.
In January, 1923, Nellie K. McFarland filed a petition in probate court to set aside the judgment and order of the 'probate court of February 27, 1917, closing the estate of Charles W. McFarlafid, deceased, and discharging the administratrix, and to be permitted to file for probate the purported last will and testament of Charles W. McFarland, upon the ground that the widow, Nellie N. McFarland, while in possession and with full knowledge of the contents of the will of her husband, falsely and fraudulently represented to Nellie K. McFarland that there was no money or property belonging to the estate of Charles W. McFarland with which to pay the bequest of $2,000, as provided in the will; that the estate of Charles W. McFarland was insolvent, and that it would require the sale of their home to satisfy his creditors, and that the purported will of Charles W. McFarland was a “joke” and invalid; that these representations were false in that the estate of Charles W. McFarland was of the value of about $10,000, as shown by the order and judgment of final settlement and orders for partial distribution previously made, and that the will was not invalid, but was in all respects valid.
It was further averred that Nellie K. McFarland did not know of the fraudulent representations at the time; that she relied upon the representations made to her by the widow, and accepted the note payable after the death of the widow in lieu of the cash bequest in the will, and that she had not learned of the fraudulent nature of the representations made to her by the widow until within two years of the filing of the petition. She tendered back the note executed to her by the widow.
A demurrer was filed to this petition, which was sustained in the probate court, and on appeal to the district court was there sustained, and the petitioner has appealed from that order,
It will be noted that the allegations of fraud in the petition may be considered in two groups. One group of allegations pertains to the condition of the estate, and it is alleged in substance that the widow represented the estate to be insolvent, or practically so, when in fact it was of the value of approximately $10,000. The other group, of allegations goes to the question of the validity of the instrument purported to be the last will of Charles W. McFarland.
As to this last group of allegations, the representations of the widow could be no more than the expression of her opinion. The petitioner was not bound by the opinion of the widow as to the validity of the instrument. She might have consulted an attorney or might have petitioned at that time to have the will probated and had the matter determined in court. Perhaps its validity would depend upon the intention of the testator at the time it was executed. (In re Walkin’s Estate, 116 Wash. 190.)
As to the fraudulent allegations pertaining to the condition of the estate, the appellee raised by the demurrer the question of the statute of limitations. This point is well taken. The condition of the estate was shown by the public record of the probate court of Douglas county, by which the final order of distribution was made in February, 1917. With this record open to the examination of the petitioner, she cannot be heard to say that she had no knowledge of the condition of this estate until some date which was within two years prior to the filing of her petition in January, 1923. The purpose of public records is to give parties in interest notice. Since Charles W. McFarland was a resident of Douglas county at the time of his death, the probate court of that county is the only court in which his estate could be administered, hence it would have been a comparatively easy matter for the petitioner to have made inquiry of the judge of that court as to whether the estate was being administered and as to the condition of the estate.
“Where the means of discovery he in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.” (Syl. If 2.)
This rule has been followed many times in this court. See Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332; Hinderliter v. Bell, 114 Kan. 857, 221 Pac. 252.
The judgment of the court below is affirmed.
