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unborn child, and therefore the mother is powerless by contract to create a lien upon the fund, falls, when it is seen that the judgment is not a part of the child's estate. The mother is not the trustee of the fund for the child and has, not only the optional right to institute the suit and control it after it is instituted, but she receives the judgment with the sole right of disposition. The argument would apply with equal force to the claim that the mother could not compromise or accept satisfaction and dismiss the proceedings. If the child has the vested interest, and the mother is only the trustee acting for it, she could not, by accepting a grossly inadequate sum, prejudice the child's interest. But, as we have seen, her right to institute, control, or compromise the prosecution is without reference to any supposed right of the child in the fund.

It is said in argument that if the child should die defendant would have a right to an order of the court refunding to him any unexpended balance that the court might deem proper in consequence of such death, and it argued that therefore the mother never got title to the fund. Gen. St. 1901,

3337, provides for such a case where the judgment is to be paid in installments and the child dies before the last payment. It is sufficient to suggest that after the attorney fee is paid it has been expended and, of course, would not be a part of an unexpended balance.

It is our opinion that it was error to refuse the allowance of the fees of the attor. ney, and that they were properly a charge upon the fund. The cause will therefore be reversed and remanded with directions to order payment of the fee to plaintiff in error. All the Justices concurring.

MASON, J. A life interest in real estate in England vested in Margaret Jenson by the terms of a will, which also provided that upon her death the property should go to her husband, Thomas Jenson, for his life (he to educate and maintain her children out of it), and that upon his death the executors should sell it and divide the proceeds among her children or their heirs. She died in 1882, the only beneficiaries under the will surviving her being her husband and their son, Tom, who was born in 1875. In 1899, by what was understood to be their joint consent, the property was sold, the executors and the father and son uniting in the deed. The consideration was £3,000, which was paid to the father who came to this country, accompanied by his son, and invested it largely in the purchase and improvement of lands for a cattle ranch, taking the title in his own name. In 1903 the son began an action against his father, alleging in substance that he had never known until a short time before that the will referred to gave him any interest in the English property; that bis father had fraudulently concealed the fact from him and had induced him to sign the conveyance by leading him to believe that it was purely a formal matter, and had procured the co-operation of the executors by representing to them that the purpose of the sale was to procure funds to be invested in land in America for the benefit of Tom, and by promising that such plan should be carried out. The plaintiff therefore asked to be declared the absolute owner of all property into which such proceeds could be traced. The defendant answered, denying the allegations of fraudulent concealment and misrepresentation, and taking the position that he held a life interest in such property, his son being the remainderman. The case was tried before a referee, who made detailed findings of fact and conclusions of law, in effect sustaining the defendant's contention as to the principal matter in controversy. The court, however, took a different view of the evidence; and, setting aside so much of the referee's report as was inconsistent therewith, gave judgment for the plaintiff. The defendant prosecutes error.

The evidence was partly oral and partly in the form of depositions. Circumstances were narrated from which different inferences might be drawn, and there was some direct conflict of testimony. The brief of the defendant in error contains a suggestion that in the course of other litigation the trial court had acquired information material to the resolution of these contradictions, not available to the referee or to this court, and that its conclusions regarding them should therefore control. This is not a consideration that can be given weight here. Inasmuch as the referee's report set out the evidence in full, "the testimony is presented to this court in the same form as it was to the district court, and hence we have the

(76 Kan. 347)

JENSON V. JENSON. (Supreme Court of Kansas. July 5, 1907.) 1. APPEAL-REVIEW-OPINION OF REFEREE.

Where a referee's report contains all the evidence, a judgment contrary to his findings cannot be upheld on review upon the theory that the trial court had any means of information as to the facts not open to him, or any better opportunity than this court to determine the force and effect of the testimony. 2. TRUSTS - CONSTRUCTIVE TRUSTS

EviDENCE.

The evidence examined, and held to support the findings of the referee.

(Syllabus by the Court.)

Error from District Court, Morris County; O. L. Moore, Judge.

Action by Tom Jenson against Thomas Jenson. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

Humphrey & Humphrey and John Maloy, for plaintiff in error. Roark & Roark and N. B. Nicholson, for defendant in error.

same opportunity which that court had to joy a life estate in them. No witness prodetermine its force and effect." Fountain v. fessed to have heard the defendant declare Kenney, 66 Kan. 797, 72 Pac. 392.

unequivocally that he was to renounce such In behalf of Tom Jenson a theory is pre interest on his part. Tom's own version of sented, which was outlined in his petition, his father's promise was thus expressed : that he is entitled to recover because of rep "Ile said he would come to America, and we resentations made by his father to the exec would invest the money in a ranch, and I utors to induce them to execute the deed should share it with him." Upon the issue to the English property. We cannot perceive so presented the referee made the following that properly there is such an issue in the finding, the portion thereof inclosed in brackcase. The executors had no power of aliena ets being afterwards stricken out by the tion except as they derived it from the joint court as not supported by the evidence: consent of the father and son. Their act "At the time of the sale of said property was merely formal. Practically, Tom Jen known as the 'Hare and Ilounds,' it was son, being entitled to the proceeds of a sale the intention of both plaintiff and defendant of the property at his father's death, was the that the proceeds derived from said sale owner, subject to his father's life interest. should be brought to the United States and Any disposition of the property, or its pro invested in a cattle ranch for the purpose (eeds to which he and his father might agree, of establishing the plaintiff in business [but was a matter of no concern to any one else. it was not the intention at that time, of eiHe was of full age and not under guardian ther the plaintiff or the defendant, that the ship. The sale was effective only because defendant should part with or forfeit bis of his participation in it.

life interest in the proceeds derived from The real cuestions in dispute are: (1) Was

(1) Was the sale of said Hare and Ilounds property].” his consent to the transaction fairly given It is unquestionably true that there was with a full understanding of bis rights, or

much in the relations and conduct of the was it obtained by a fraudulent concealment parties to afford just ground for doubting of the terms of the will, by which he was de the good faith of the father, and that a ceived into a belief that he had no substan plausible argument can be made in favor of tial interes: in the matter; and (2) if no the son's contentions. But the case is pecufraud was employed. what was the agree liarly one in which the appearance and bearment between himself and his father as to ing of the parties upon the witness stand the disposition of the proceeds of the sale,

may have been of great value in deciding was it that the new property purchased was between them—may have been a determining to be absolutely his own, or that the Ameri factor. We deem it unnecessary to review can real estate should be held as that in

the evidence more in detail, or to recite the England had been the life estate in the considerations which might be thought to father, the remainder in the son ?

support one view or the other. The finding Upon the question of fraud there was a quoted is substantially to the effect that the direct conflict of oral testimony between the

father and son agreed that the interest of parties. That of Thomas Jenson was ex each in the property sold should attach to plicitly corroborated by the deposition of the proceeds and follow them into whatever the lawyer who arranged the details of the form they might assume.

We cannot say sale, to the effect that he fully explained to

that such finding was without support, nor the plaintiff his rights at the time of its that it was against the weight of the evicompletion. The other evidence affecting

dence. the matter was largely negative or circum An incidental finding upon which the court stantial. The referee by necessary implica- | differed with the referee had relation to a tion, although not in express language, found

lease of the ranch from the father to the against the defendant on this issue, and we son, signed by both parties. The plaintiff see no sufficient reason for disturbing the claims that this lease was a sham; that it finding.

was executed to deceive a third person. The To establish his claim to the absolute reieree found otherwise. The matter seems ownership of the American property, the a fair one for his determination. But in plaintiff relied upon evidence that his fath any event the matter is not very material. er at various times had stated that his pur The lease is important chiefly as an acknowlpose was to use the proceeds of the English edgment by the son of his father's title. If property to buy a cattle ranch for Tom--to his story is true, such acknowledgment was start Tom in business; that he himself should made in ignorance of his rights and did not remain in this country but a short time; that bind him; if it is untrue, the acknowledg. he had other means sufficient for his sup ment was superfluous. Moreover, the lease port. These expressions, however, and oth was pleaded in the answer, and the reply ers of the same general import shown by the tendered no issue regarding it, except by alrecord, are consistent with the idea that, leging that the plaintiff entered into it not while the lands were to be bought with spe knowing that he was the owner of the land. cial reference to Tom's interests, were to The referee also made findings, which are afforl him a present occupation and ulti not challenged, settling various minor dismately to become his, his father was to en putes, and establishing that the defendant

still has on hand a part of the proceeds of John W. Adams and 0. H. Bentley, for the sale of the English property, amounting plaintiff in error. Stanley, Vermilion & Evto $679.32. His conclusions were that the ans and H. C. Sluss, for defendant in error. plaintiff was the owner of this and of the lands referred to, subject to a life interest SMITH, J. The following portion of the of the defendant, and that the costs of the agreed statement of facts upon which the action should be divided.

case was tried is sufficient to determine the It results from what already has been decision of this case, to wit: "It is further said that the judgment must be reversed and admitted that the seventh grade of the course the cause remanded, with directions to enter of study of the schools of the city of Wichita a decree in accordance with the facts as is taught in the Emerson School, that white found by the referee. The matter of costs, children, living in the same block in which however, rests in the discretion of the dis the said Fannie S. Rowles resides, were, at trict court, and there are obviously good the time the said Fannie S. Rowles pregrounds for permitting their recovery by the sented herself for admission and now, atplaintiff. The defendant asserted in his an tending the said Emerson School and the swer that he was ready, and had been at all seventh grade thereof; and it is further adtimes, to assure to the plaintiff, by any prop mitted that the said Fannie S. Rowles preer instrument, his interest in the lands in sented herself to the said Emerson School controversy—that is to say, the title to them as set forth in the writ of mandamus heresubject to his father's life estate. The evi in, and that she was excluded and probibited dence showed that a few weeks before the from attending said Emerson School for the suit was begun Tom was advised by a letter sole reason that she was of African descent from his father that his rights as remainder and colored and a separate school had been man were recognized, but it does not appear provided in the Park School for her educathat any offer was ever made, excepting that tion in the seventh grade as a colored child; contained in the answer, to give legal effect and it is further admitted that the plainto such recognition, or to make it a matter of tiff is a widow and the mother of the said record. The plaintiff therefore was entitled Fannie S. Rowles, and as such she has the to relief in this respect, as well as to an charge and sole responsibility of educating accounting.

the said Fannie S. Rowles, and that the So far as the real estate is concerned, he

, father of the said Fannie S. Rowles is decan be protected by a judgment declaring ceased; and that said Fannie S. Rowles rehis interest. As to the money, in the ab- sides within 400 feet of the Emerson School, sence of an agreement between the parties, and that the said Fannie S. Rowles is not an order will have to be framed to meet the attending the Park or Emerson School at occasion. All the Justices concurring.

this time because she claims the right to attend the Emerson School.” The action was

brought by Mrs. Rowles for a writ of man(76 Kan. 361)

damus to compel the school board of the city ROWLES v. BOARD OF EDUCATION OF

of Wichita to admit her daughter Fannie CITY OF WICHITA et al.

to the Emerson School, which writ was re(Supreme Court of Kansas. July 5, 1907.) fused by the court, and she brings the case 1. SCHOOLS AND SCHOOL DISTRICTS-PUBLIO here. SCHOOLS-SEPARATE SCHOOLS.

Section 75, c. 18, Gen. St. 1868, which chapChapter 227, p. 329, Laws 1889, is a special act, which by its terms makes full provi

ter relates to cities of the first class, authorsions for the government of the public schools

ized all cities of this class to maintain sepof the city of Wichita, a city of the first class. arate schools for the education of white and It renders all other provisions of the statute re

colored children, and authorized the establating to public schools inapplicable to the public schools of Wichita, and it has not been

lishment of high schools. In 1879 (Chapter amended or repealed and does not authorize the 81, § 1, p. 163, Laws 1879) said section 75), maintenance of separate schools for the educa

C. 18, Laws 1868, was repealed and amended. tion of white and colored children.

By the amendatory act cities of the first 2. SAME-EXCLUSION OF COLORED CHILDREN. In the absence of statutory authority, the

class were authorized to maintain separate board of education of the city of Wichita has schools for the education of white and colno right to exclude a child, by reason only of ored children, "except in the high school its color, from any public school of the city.

where no discrimination shall be made on [Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Schools and School Districts, 88 15–

account of color." In 1905 this act was again 322.]

amended (chapter 414, § 1, p. 676, Laws 1905), (Syllabus by the Court.)

and cities of the first class were authorized

“to organize and maintain separate schools Error from District Court, Sedgwick Coun for the education of white and colored chilty; Thos. C. Wilson, Judge.

dren, including high schools in Kansas City, Action by Sallie Rowles for writ of man Kansas. No discrimination on acsount of damus against the board of education of the color shall be made in high schools, except city of Wichita and others. Writ denied, as provided herein." and plaintiff brings error. Reversed and re The city of Wichita, from the time it be manded.

came a city of the first class until 1889, was,

as to its public schools, within the provisions , tion, 72 Kan. 629, 84 Pac. 338. It follow:of the general statutes theretofore enacted that the plaintiff was entitled to the relief and above cited. In that year, however, the prayed for. Legislature, probably at the instigation of The judgment of the district court is rerepresentatives of the city, passed a special versed, and the case is remanded, with inact in which full provision is made for the structions to enter judgment for the plainschools of that city. The act applies only to tiff in accordance with the views herein exthe city of Wichita, and, in effect, repeals pressed. All the Justices concurring. all former general acts to the extent of their application to the schools of Wichita. Sec

(76 Kan. 280) tion 1 of the special act reads: "The public schools of the city of Wichita shall be gov

SPARKS v. BOARD OF COURS OF CHER

OKEE COUNTY. erned by the provisions of the following act." Section 4 thereof reads: "The board

(Supreme Court of Kansas. July 5, 1907.) of education shall be a body corporate under 1. COUNTIES — COUNTY OFFICERS – OFFICIAL

BONDS. the name of The Board of Education of the

Where by a statute changing the date of an City of Wichita,' and as such shall have the election, enacted after a county officer has givpower to sue and be sued; to elect its own en his official bond, his term of office is extendofficers, and make all necessary rules for

ed for a year, the sureties on such bond cannot

be held liable by reason of any misconduct on the government and regulation of the schools

his part occurring after the expiration of the of said city under its charge and control, time for which he was elected, notwithstanding subject to the provisions of this act; to ex the bond is conditioned for his good behavior ercise the sole control over the public schools

during his continuance in the office “by virtue

of said election," and the Constitution provides ind school property of said city; and shall

that "county officers shall hold their offices for have the power to establish and maintain a term of two years, and until their successors a high school : Provided, no discrimina shall be qualified.” tion shall be made on account of race or

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 13, Counties, $ 145.) color; Provided further, that no tuition

2. SAME-ACTION AGAINST PRINCIPAL. fee shall be collected from any pupil who

An action upon the bond for such misconis an actual resident of said city. The

duct may be maintained against the principal. board of education shall have power, where (Syllabus by the Court.) the school accommodations are deemed insufficient, to exclude, for the time being,

Error from District Court, Cherokee Counchildren between the ages of five and seven

ty; W. B. Glasse, Judge. years." This act has never been amended

Action by the board of county commissionor repealed. The act of 1905 was expressly

ers of Cherokee county against O. W. Sparks. amendatory of the act of 1879, and was a

Judgment for plaintiff. Defendant brings general act with a special exception in rela

error. Affirmed. tion to Kansas City, Kan. As the schools E. E. Sapp and J. N. Dunnbar, for plainof Wichita liad for years been under the spe tiff in error. Tracewell & Moore, for defendcial act of 1889, it cannot be inferred that the

ant in error. Legislature intended the act of 1905 to have any application whatever thereto.

JASON, J. In November, 1899, 0. W. It is contended on the one hand that scc Sparks was elected sheriff of Cherokee county tion 4 of the special act supra prohibits dis for the regular term, which under the law as crimination on account of color in any and it then stood was fixed at two years, beall of the public schools of Wichita, and onginning with the ensuing January. As rethe other hand that the prohibition relates quired by the statute (Gen. St. 1901, $$ 1740, only to the high schools. However this may 1741), he gave a bond, signed by himself and be, it is certain that the city is not by any several sureties, for the faithful discharge provision thereof authorized to maintain any of his duties. In 1901 the Legislature did grade of its public schools for the separate away with elections in the odd-numbered education of white and colored children. The years. Laws 1901, p. 309, c. 176. The result history of the legislation on this subject of this action was to extend Sparks' term from 1868 to 1905 amounts almost to a leg until January, 1903 (Pruitt v. Squires, 64 islative declaration that, in the absence of Kan. 855, 68 Pac. 643), and he continued to an express grant thereof, no city or school hold the office until that time. During the district has any authority to discriminate year 1902 he collected and retained various against any child, or to deny it admission fees which it may for present purposes be to any public school thereof, on account of assumed he should have paid over to the its color. Such, also, has been the uniform county. An action was brought by the county tenor of the decisions of this court. See commissioners upon the sheriff's bond to reBoard of Education v. Tinnon, 26 Kan. 1; cover the amount so withheld. The matter Knox v. Board of Education, 43 Kan. 152, 23 was sent to a referee, who reported that Pac. 616, 11 L. R. A. 830; Cartwright v. neither the sheriff nor his sureties were liable Board of Education (Kan.) 84 Pac. 382; in said action. The court approved the report Board of Education y. Dick, 70 Kan. 434, 78 as to the sureties, but held that the county Pac. 812; Richardson v. Board of Educa was entitled to recover against the principal.

This proceeding is brought to review such tract for the faithfulness of the officer during rulings; the commissioners claiming that that time, and the obligation of the sureties their demand against the sureties should have is not extended by the mere fact that such been sustained, the sheriff that he also officer is re-elected or for any reason holds should have been exonerated. The only ques over the term." tions involved are whether the bond is to be The present case is peculiarly one which so construed as to make the sureties an calls for the application of the principle by swerable for any misconduct of the sheriff which a liberality of interpretation is allowed occurring during the year which the Legis for the benefit of a surety. When Suurks' lature added to his term after his service i bond was given, those who signed with him had begun, and whether a recovery can be might perhaps have been expected to take had against the officer himself for such mis into account that through some accidental conduct in an action upon the bond.

circumstances, such as the delay of his sucIt is true that the Constitution provides cessor to qualify, his term of office might be (formerly by section 3 of article 9, now by extended for some inconsiderable period besection 2 of article 4) that "all county * * * yond the normal two years. But they could officers shall hold their offices for a term of not have anticipated that the Legislature two years, and until their successors shall would add a whole year to his time of servbe qualified." And it was decided in Pruitt ice. No such change could possibly have been v. Squires, supra, that in such a case as the contemplated; and, if the contention of the present the sheriff continued to hold office county is correct, the practical effect of the from January, 1902, to January, 1903, in vir statute was to impose upon them an obligattue of that provision: that his service for tion which they might never have been willing that period was under his original election; voluntarily to assume. In King Co. v. Ferry, 5 that the effect of the statute was to extend Wash. 536, 32 Pac. 538, 19 L. R. A. 500, 31 Am. the old term, not to create a new one. The St, Rep. 880, the precise question here presentbond in question, following the language of the ed arose. Upon the authority of that case it is statute, purported to guaranty the good be said in 27 A. & E. Encycl. of L. 53); “Where havior of the sheriff "during his continuance the term of office is extended by statute after in office, in virtue of said election." Liter- the execution of the bond, the sureties thereon ally construed, therefore, the terms of the are not liable for the faults occurring during bond were broad enough to cover the mis the extended term, though the statutes profeasance here complained of. But it is urged vide that the officer shall continue in office with much force that the sureties, being fa until his successor is elected and qualified." vorites of the law, are entitled to any reason The grounds of the decision are shown by able construction that will relieve them from this excerpt from the opinion: “Yo consideraliability. There is a sharp conflict of au tion of the interests of the public will justify thority upon the question whether, notwith a court in extending by construction the obstanding a statutory provision that an officer's ligation of a citizen under his contract beterm shall continue until his successor has yond the scope of its natural import. The qualified, a bondsman's liability does not contract which embodies this obligation, like ('pase as soon as a reasonable time has elapsed any other contract, must be construed to give to permit such qualification, even although effect to the intention of the parties, and that it does not take place. The authorities on the intention is to be gathered from the language subject are collected in notes 5 and 6, 27, employed and the circumstances surrounding A. & E. Encycl. of L. 53., and in a note in i the execution of the instrument. Now, what Blades v. Dewey (X. C.) 103 Am. St. Rep. were the circumstances surrounding the ex932. This court in Riddel v. School District ecution of this bond, and what length of time No. 72, 15 Kan. 168. definitely took a posi would these bondsmen naturally think they tion in line with the cases which favor the were contracting with reference to it? The surety by limiting his liability closely to mat correct answer to the last question deterter's arising in the regular term for which mines their liability. There need be no artihis principal was chosen. So in Life As- ficial rules of law applied. It is a simple sociation v. Lemke, 40 Kan. 661, 20 Pac. .512. question of intention gathered from the lanit was said: “It will be conceded that, if guage of the contract, read in the light of the bond is an official and an annual one, the the surrounding circumstances. At the time obligors are only bound for the defaults that this hond was given the term of office of the ocurred during the year for which the bond treasurer as provided by law was two years. was given. The contract of a surety is fa- ; It is argued that the bondsnien entered into vorably regarded by the law, and even in cases this obligation in view of the possible modifiwhere the officer is authorized to holil over cation of their liability by the legislative ashis term and until lis silet('ssor is elected and sembly, and with notice that the Legislature qualified the liability on the official bond is would have a right to continue the incumbent not extended beyond the duration of the term. in offire beyond the term for which he was When an officer is chosen for a term of limit electeel. So far as the first proposition is conell duration, and it lond for the faithful per cerned, the Legislature would not have any formance of duties is given, the presump right to pass a law that would change the tion is that the obligors or sureties only con terms of the contract or in any way impair its

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