
    Elizabeth Fager, as Executrix, etc., v. Franklin E. Brooke.
    No. 13,979.
    (81 Pac. 1132.)
    Error from Douglas district court; Charles A. Smart, judge.
    Opinion filed June 10, 1905.
    Reversed.
    
      W. B. Brownell, and J. W. Green, for plaintiff in error.
    
      George J. Barker, for defendant in error.
   Per Curiam:

The plaintiff in error is the executrix of the last will of David Fager, deceased. Defendant in error presented to the probate court for allowance against the estate a promissory note for $2000, payable to bearer and executed by David Fager. The court allowed the claim, from which order the executrix appealed to the district court. Her contentions in that court were that for many years prior to his death, and especially at the time the note was signed, David Fager was mentally and physically so enfeebled as to be incompetent to transact any kind of business; that he did not know he was signing a note, and that his signature thereto was procured by fraud; that the defendant in error bought the note through Harry Brooke, his agent, with notice that it had been procured by fraud. After the executrix had introduced her evidence the court directed the jury to return a verdict for the defendant in error. To reverse this judgment plaintiff in error prosecutes this proceeding.

It is the opinion of this court that there was substantial evidence introduced by the executrix tending to prove that the note was procured by fraud, and that the present holder had notice thereof when he became the purchaser; hence the court erred in not submitting these questions of fact to the jury.

The judgment is reversed, and the cause remanded.  