
    Howard L. Grimshaw et ux. v. I. L. Kent, as Administrator, etc.
    
    No. 14,940
    (89 Pac. 658.)
    PRACTICE, Supreme Court — Departure—Waiver. It was said to be too late to raise a question of departure for the first time upon review.
    Error from Miami district court; Winfield H. Sheldon, judge.
    Opinion filed March 9, 1907.
    Affirmed.
    
      J. E. Maxwell, and W. T. Johnston, for plaintiffs in error.
    
      Frank M. Sheridan, for defendant in error.
   Per Curiam:

I. L. Kent, as administrator of the estate of Elizabeth C. Grimshaw, deceased, brought this action against Howard L. Grimshaw and wife to recover the sum of $1950, an alleged asset in their possession belonging to the estate. The answer denied any indebtedness due the estate, and alleged in substance that Howard L. Grimshaw is the son of Elizabeth C. Grimshaw; that Olive A. Grimshaw is his wife; that they reside in Winslow, Ariz.; that on the 4th day of May, 1901, Elizabeth C. Grimshaw was at their home in that place, and on'that day offered to give to defendants the sum of $1900, they agreeing to pay her an annuity of $240 in monthly payments so long as she lived.

The contract referred to in the answer was in writing and appears in full in the opinion in Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92, where the judgment was reversed for errors in the rejection of testimony. The former opinion states the facts necessary to an understanding of the controversy.

The reply denied that Mrs. Grimshaw ever executed the contract, and alleged that for several years prior to her death she was feeble-minded and incapable of transacting business, and that if she executed the writing the defendants fraudulently procured its execution, and fraudulently induced her to turn over her money to them.

At the second trial the jury again found for plaintiff, and made a number of special findings. It is sought by defendants to reverse the judgment.

The trial court admitted in evidence a number of letters written by deceased to her children and her sister, and also a writing in the form of an .unattested will found among her papers and dated less than two years before her death. Error is claimed in the admission of this evidence. It was offered to prove the allegations of the reply in respect to the mental condition of deceased, and was proper evidence, unless,, as is claimed, the allegations of the reply constituted' a departure from the facts relied upon in the petition. The reply was .not attacked by demurrer or motion, and the pleadings are the same as when the case was. first tried. It is too late to raise the question of departure at this time.

Most of the brief of defendants is taken up with a discussion of the conflicting evidence as to the mental capacity of deceased. There was evidence to sustain the finding of the jury that she was mentally incapable of entering into the contract, and also to support the general verdict. Its weight we are not called upon to determine. We find no error in the record.

The judgment is affirmed.  