112 Kan. 599 | Kan. | 1923
The opinion of the court was delivered by
This action was brought by Irene Sowers upon a guardian’s bond executed by Roy Pollock as guardian, with H. H. Wetzig and H. W. Smith, as sureties. Judgment was given in favor of the plaintiff and against the sureties, who appeal.
After the issues were joined, plaintiff moved for judgment on the pleadings and defendants also asked for judgment in their favor on the same basis. Plaintiff alleged that her mother died in 1917, leaving to plaintiff and her brother, Clyde Pollock, $1,000, the proceeds of an insurance policy. The children were both minors,
Numerous authorities are cited by the defendants to the effect that judgments of the probate court in matters in its jurisdiction are not subject to collateral attack. As said in Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, such a judgment “is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.” Although of limited jurisdiction, a probate court has full power to adjudicate matters which come within the jurisdiction conferred by constitution and statute, and its judgment rendered within the prescribed limits, however erroneous, are ordinarily conclusive unless reversed
A principle which has been universally recognized since the beginning, was expressed by Lord Ellenborough in 1st Campbell, 528, that “no man should be allowed to have an interest against his duty.”
In Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, it was said:
“Nothing in the law of fiduciary trusts is better settled than that the . trustee shall not be allowed to advantage himself in dealings with the trust estate. He shall not be allowed to serve himself under the pretense of serving his cestui que trust.” (p. 618.)
In that case it was held that a guardian’s sale of her ward’s land to her husband upon fair consideration and free from actual fraud and where the sale had been confirmed by the court, was absolutely void and subject to collateral attack. Something is made of a remark in that case to the effect that there may be exceptional circumstances justifying sales by trustees to their wives or husbands or even to the trustee himself. However, we can conceive of no circumstances . which would justify the loan of practically the entire trust estate to the guardian.
In Webb v. Branner, 59 Kan. 190, 52 Pac. 429, a guardian procured an order for the sale of his ward’s property under which a sale was made to the purchaser who immediately conveyed the property
In Fidelity & Dep. Co. v. Freud, 115 Md. 29, a guardian borrowed a part of the fund committed to his care, and this was done on the permission and authority of the orphans’ court. The question there was whether the loan made under the sanction of an order of the court would protect the guardian or the sureties on his bond. The court declared that:
“No one having fiduciary duties to discharge should be allowed to enter into any engagement in which he has, or can have, a personal interest conflicting, or which may possibly conflict, with the interests of those whom he is bound to protect.” (p. 33.)
It was held that nothing in the statutes of that state nor in the general principles of law would relieve the guardian or his bond from liability for the misuse of the funds of his ward.
In another case, where a guardian had borrowed and used $750 of the money of his ward with the approval of the county court, and it was claimed that, the order of the court relieved the guardian from liability for its loss, it was held that the court was without authority to authorize the guardian to loan the money belonging to the estate of the ward to himself and that it could not by its order give validity to such a subterfuge. In the opinion it was said:
“Orders of a court of record valid on their face cannot be attacked collaterally, but the proceedings as to the $750 are so irregular and unconscionable as to carry with them the badge of fraud and to be vulnerable to attack by objections to the final report, in which the guardian by means of such invalid orders seeks to be relieved from liability for loss to the estate arising from the inadequate security taken. The county court is without authority to authorize a guardian to lend funds of the estate on securities offered by the guardian himself, or by order of court to give validity to any subterfuge in such respect.” (In re Bates’ Guardianship, [Okla.] 174 Pac. 743, 744.)