ment in favor of the opposite party, unless such statement in effect admits facts which preclude the party's right of action or defense as stated in his pleading.

(Syllabus by the Court.)

Error from District Court, Sumner County; C. L. Swarts, Judge.

Action by Ivan D. Rogers, administrator of the estate of Henry Knowles, against John T. Stewart. Judgment for plaintiff. Defendant brings error. Affirmed.

Kos Harris and Ed. T. Hackney, for plaintiff in error. J. T. Herrick, C. E. Elliott, W. W. Schwinn, and James Lawrence, for defendant in error.

C. A. SMITH, J. Henry Knowles died intestate in 1898, and at the time of his death owned several tracts of real estate in said county, and little if any personal property. | Several of the tracts of real estate, if not all of them, were incumbered by mortgages, and there were a number of other small debts, besides the expenses of administration. Prior to the death of Knowles the Connecticut Mutual Life Insurance Company had brought suit to foreclose one of these mortgages held by it, and it bought in a certain tract of land at the foreclosure sale at a price which left a considerable deficiency judgment. There was a defect in its title to the land purchased, by reason of a defective description in the order of sale. Stewart, the plaintiff in error, and his wife, had tax liens against some of the Knowles land; and the Wellington National Bank, in which Stewart was interested, also held mortgages against some of the land. The land, it appears, was of about the value of the mortgages and indebtedness-perhaps less. The defendant in error was at the time of the commencement and trial of this action the administrator of the estate, and, among other things, in his petition, alleges as a basis of recovery the following: "It was agreed verbally by and between the three parties, the heirs of Henry Knowles, on the one hand, consisting of Sarah Knowles, Wesley R. Knowles, Frank E. Knowles, and Eva Youmans, John Stewart, on his part, and the Connecticut Mutual Life Insurance Company, on its part, by William Collins, its agent, that the said heirs of Henry Knowles should execute a deed to the defendant, John T. Stewart, conveying to him the land herein first described, being the and which belonged to Henry Knowles at the time of his death, and should convey by their deed of quitclaim to the Connecticut Mutual Life Insurance Company the said 100 acres of land herein before described, and that the said Connecticut Mutual Life Insurance Company, on its part, should execute a release of its said judgment against Henry Knowles, and should satisfy and discharge all claims against said Henry Knowles and his estate, and that the defendant, John T. Stewart, should, in consideration of receiv

ing all the lands herein first described from the heirs of Henry Knowles, and in consideration of the release and satisfaction of said judgment, which was a lien on said land, pay and discharge all debts of the said Henry Knowles, and all demands against said estate which might be existing and allowed by the probate court of Sumner county, Kansas, against said estate, and cause and procure said estate to be settled solvent, and to provide funds and money with which to pay and satisfy all demands which might be proven and allowed by the probate court, of Sumner county, Kansas, against said estate, and all costs of administration of the same." Also, "that in pursuance to said agreement the heirs of Henry Knowles executed the two deeds, one to John T. Stewart and the other to the Connecticut Mutual Life Insurance Company; that the Connecticut Mutual Life Insurance Company released said judgment; and that John T. Stewart failed and refused to furnish the money to close up said estate." After a demurrer to the petition was overruled, the defendant below answered, denying plaintiff's capacity to sue and right of recovery, and also set up a written contract, signed by himself and the heirs of Henry Knowles, alleged to have been executed after the contract set up in plaintiff's petition was made, and under which written contract he claimed the conveyances of real estate to him by the Knowles heirs were made, and not under or by virtue of the verbal contract set forth in the plaintiff's petition. A trial was had in the district court before a jury, and a verdict rendered in favor of the administrator, plaintiff, for $1,443.25. A motion for new trial was overruled, and a judgment was rendered for this amount and costs. To reverse this judgment, Stewart brings the case to this court.

The plaintiff in error makes 45 assignments of error, and, while we have considered each of them, we shall not discuss them seriatim. There being no requests for special findings of fact, and no special findings being made, it is to be presumed that the jury found all the issues of fact in favor of the plaintiff which are necessary to sustain their verdict and the judgment thereon-so far, at least, as there is any evidence to support any such fact in issue.

There is no evidence that the heirs of Henry Knowles named in the petition were present with Stewart and Collins, as agent of the Connecticut Mutual Life Insurance Company, and made the tripartite contract set forth in the petition; but there is evidence that Stewart and Collins, as agent of the life insurance company, made the contract substantially as set forth in the petition, and that Stewart procured the Knowles heirs to perform said contract on their part, and that the life insurance company performed the contract on its part, and that the consideration of the releasing of the

judgment in favor of the life insurance company, and the principal consideration for the conveyance by the Knowles heirs of a part of the land to the life insurance company, and a part of the land to Stewart, was the agreement of Stewart to pay the debts of the estate and have the estate settled solvent. Thus, by ratification, the Knowles heirs became a party to the contract, and they performed the contract, and there is hence no material variance between the allegation and the proof.

The principal legal question presented is whether an administrator may maintain an action upon a contract made after the death of the intestate, to which he was not, as such administrator, a party, and of which he had no knowledge at the time it was made, or whether such action, if maintainable at all, should be brought by the creditors to be most directly benefited thereby. The creditors surely could not recover the expenses and costs of the administration of the estate, which was part of the contract "that the estate might be settled solvent." Neither could the creditors in a joint action recover an amount sufficient to pay the entire debts of the estate, as one creditor would have no interest in the payment of a debt due to another. Each creditor could, in this view, only collect as much as was due from the estate to himself. Can this multiplicity of actions, be avoided by the administrator maintaining one action for the entire amount due to all the creditors under the contract, and for the costs and expenses of administration, so that the estate may be settled solvent? With some hesitation, we answer this question in the affirmative. The administrator is the agent of the creditors in marshaling the assets of the estate and accumulating funds to pay their claims, and he is, as well, the legal representative of estate. It may be said that the heirs in this case were under no legal obligation to pay the debts of the intestate, and this is true, in the sense that no judgment could be obtained against them for such payment. If debts remain, however, after the personal estate is exhausted, as was true in this case, the heirs hold the title to the legal estate inherited, subject to the right of the administrator to sell all or so much of the said real estate as may be necessary to pay the claims allowed against the estate. Money paid to an executor or administrator by the heirs of a decedent to prevent the sale of the decedent's real estate for his debts is assets of the estate. Fay v. Taylor, 2 Gray (Mass.) 154. A contract, then, of the grantee to pay the debts of an estate in consideration of the heirs conveying to him a portion of the lands of the decedent, may be well said to be assets in the hands of the administrator; and, if so, he may bring an action upon it and enforce it. But it is said that neither the heirs nor the administrator knew anything about this contract being made. This is no answer. Anthony v. Her

man et al., 14 Kan. 494. It is true that the administrator, if he had not deemed the contract to be of advantage to the estate, might have ignored it and proceeded to sell the real estate to pay the debts. So might Anthony, in the case above cited, have disregarded the contract of the defendants in that case, and have proceeded against Mark Kelly, the original debtor. In Life Insurance Society v. Welch, 26 Kan. 642, the court says, "Now, whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy to the consideration thereof, may sue upon the contract to enforce any stipulation made for their especial benefit or interest." The administrator in this case was the legal representative of the estate, and we see no reason why he should not be allowed to sue upon the contract for the benefit of the estate, even if we assume that he might have disregarded the contract, and sold the land for the purpose of paying the debts of the estate. The heirs had already conveyed the land for that very purpose. Stewart is not in good position, after he has received all the benefits of the contract, to say that he should not perform the obligations thereof on his part. It is true, the evidence tends to show that he made another contract with the Knowles heirs, and paid out $500 to secure the performance thereof, which he would not have been required to pay under the contract with the life insurance company; but the contract with the life insurance company was not merged in his subsequent written contract with the heirs. The making of the latter contract, and the payment of the $500 thereunder, seem to have been an attempt on the part of Stewart to evade his obligations under the former contract. If so, he cannot be heard to complain if he has, in a measure, to bear the burdens which he assumed under both contracts.

The plaintiff in error bases several alleged errors upon an alleged variance between the allegations of the petition and the statement of counsel for the defendant in error to the jury at the beginning of the trial. We should not notice this objection, had it not occurred in several other cases. The statute authorizing a party on whom rests the burden of the issues to briefly state his case, and the evidence by which he expects to sustain it, is permissive only. He may make such statement, or not, at his own election. If he should elect to make no statement, the opposite party could not demur or object to the introduction of evidence on the ground that there is nothing to be tried before the jury. The issues are made by the pleadings, and not by the respective statements of the parties. If a party under such circumstances makes a statement at variance with his pleadings, the statement may, on objection, be excluded. At any rate, he should not, over an objection, he allowed to introduce evidence in support of such statement, so far

as it is at variance with his pleadings. If, however, a party, in making such statement, makes statements in contradiction to the facts stated in his pleadings, such statement should be taken, for the purpose of the trial, as an admission adverse to the fact as alleged in the pleading.

The only further matter to which we consider it necessary to advert is the instructions asked and refused, and the instructions given, relating to the fees or compensation of the probate court and the fees of the attorney of the estate. If, as we hold, the contract sued on was a contract that the administrator could maintain suit upon, it was proper and necessary that he should have an attorney to bring the suit, and the contract of the defendant below was that he would pay the debts of the estate and expenses of administration, so that the estate should be settled solvent. The estate could not be settled solvent without paying the costs of the probate court, and a reasonable amount to the administrator for his services, and reasonable compensation to the attorney for necessary services rendered to the estate. While attorney's fees for prosecuting or defending an action are not usually recoverable by the prevailing party in such action, in the absence of an express statute, for the reason that they are not within the contemplation of the contracting parties at the time of making the contract or transaction, in this case it was fairly contemplated and provided for in the contract; and the defendant below should not be heard to complain that such fees are greater than were contemplated, as he alone is responsible for making the additional services of an attorney necessary. All the questions of fact in regard to the reasonableness of the fees and charges were tried and determined by the jury.

The judgment is affirmed. All the Justices concurring.

(71 Kan. 85)

HOWARD et al. v. CARTER et al. (Supreme Court of Kansas. March 11, 1905.)

APPEAL- PRACTICE-SERVING CASES - EXTENSION OF TIME-OBJECTIONS TO EVIDENCELIMITATIONS FRAUD — PLEADING SANITY -OPINION EVIDENCE.

1. Under the provisions of chapter 380, p. 583, Laws 1903, providing the practice in making of cases for the Supreme Court, the time for serving such cases may be extended upon the oral request or motion of a party desiring it. If such request or motion is made at the time of the rendition of the judgment, and such extension of time is then granted by an order embodied in such journal entry of judgment, this is a sufficient compliance with the requirement that such notice (order) shall be filed with the clerk of the court. If the order of extension of time is made subsequent to the entry of judgment, such order must be filed with the clerk.

2. An objection to the introduction of evidence under a petition, the principal object of which is to set aside a deed to property of which the plaintiff is not in possession, alleged to have been procured by undue influence, is properly

overruled, notwithstanding the fact that a prayer for partition is joined with that for other relief.

3. The practice of questioning the sufficiency of a petition by an objection to the introduction of evidence thereunder is not to be encouraged, and such objection should be overruled if, upon any fair construction of the petition, any cause of action is stated.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1433-1436.]

4. The statute of limitations will not run in favor of a person claiming under a deed made by one mentally unsound, or by one mentally weak and under the undue influence of the grantee, while such conditions exist.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 413.]

5. General averments of fraud contained in a petition are sufficient as against an objection to the introduction of evidence under such petition. [Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1433-1436.]

6. A nonexpert witness may give his judgment as to the sane or insane state of another's mind, after having detailed the extent of his opportunities to deduce a correct opinion. The weight of such opinion is to be left to the jury, considering the opportunities for and the accuracy of such observation.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2242, 2297, 2393.]

7. That a person in a weak and mentally unsound condition does an act which one would not be likely to do, except he were unduly persuaded and influenced thereto, is some evidence that he was so influenced.

(Syllabus by the Court.)

Error from District Court, Leavenworth County; J. H. Gillpatrick, Judge.

Action by Otelia R. Carter and others against L. G. Howard and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

H. B. Schaeffer and Casebier & Worswick, for plaintiffs in error. D. H. Morse and Wm. J. Morse, for defendants in error.

CUNNINGHAM, J. The defendant in error objects to the consideration of this action upon its merits for the reason that the court has no jurisdiction. This arises upon the claim that the case was not made in accordance with the provisions of the present statute. At the time of the rendition of the judgment the defendants (plaintiff's in error) were "given 90 days from the 2d day of May, 1903, to make and serve a case-made for the Supreme Court, and the plaintiff is given 20 days after such service to suggest amendments; the case to be signed and settled upon days' notice." The case was made and settled in accordance with the order thus made. It is objected, however, that this order, while conforming to the statute and practice prior to the enactment of chapter 380, p. 583, Laws 1903, did not conform to the provisions of that act; that the old law was repealed by the express provisions of that chapter, and hence all proceedings thereafter must conform to the requirements therein contained. We are not disposed to disagree with this contention, but do not

agree with the claim that the proceedings in this case did not substantially comply with the provisions of the new law. It is provided in the new statute that, if the party desires more than the 10 days given by the statute within which to make and serve his case-made, the court or judge before whom the case was tried may, on motion, order an extension of that time, which notice (order) of extension shall be filed with the clerk of the court. The contention seems to be that this extension must be made upon motionpresumably a written motion-not at the time of the rendition of the judgment, but at some time subsequent thereto, and prior to the expiration of the 10 days, and thereupon, such motion having been allowed and the time extended, notice of such extension must be filed with the clerk. We do not think this stateliness and precision of procedure is required. The motion need not necessarily be in writing. Ordinarily, in the absence of statute, rule of court, or well-established practice, it need not. 14 Cyc. 74, 114. Here the requirement that the court may extend the time "on motion" may well be held to be "on request," and without formality. We have already held that the word "notice" should be read "order" (Clark v. Board of Commissioners, 77 Pac. 284), and now hold that, if a party desiring to make a case for the Supreme Court wishes longer time than the 10 days given by the statute, he may, either at the time of the rendition of the judgment, or after, and before the expiration of 10 days, request the court or judge to grant such extension; and only in the latter case is it suggested that the order be filed with the clerk. If the extension is made at the time of the rendition of the judgment, and goes into the journal entry of judgment, this is a filing of the order of extension. We think there was a substantial compliance with the statute in the making of this casemade.

The petition set out the facts of plaintiffs' case substantially as follows: That she was the daughter and heir at law of one Conrad Schuster, who died on or about the 20th of January, 1899, intestate, leaving as his heirs the plaintiff Otelia R. Carter and her sister, the defendant W. K. Howard, who is the wife of defendant L. G. Howard, and the heirs of Bettie Clark, deceased, who was also a daughter of Conrad Schuster; that Conrad Schuster was at the time of his death of the age of 76 years, and that for more than eight years prior to his death he was both bodily and mentally weak and easily influenced; that on the 17th and 19th days of April, 1893, he conveyed by warranty deed all of his real estate (being all of his property) to his two sons-in-law, L. G. Howard and S. M. Clark, the same being worth at the time more than $4,000; that he was at the time weak, both bodily and mentally, and easily influenced; that the defendants S. M. Clark and L. G. Howard, with the assistance

and connivance of their wives, and for the purpose and with the intent to deprive the other lawful heirs of Conrad Schuster of their just share in his estate, coaxed, persuaded, and unduly influenced him, the said Conrad Schuster, to execute these deeds, and thereby convey to them all of his real estate, without consideration therefor, and without paying him anything, and without obligating themselves to pay or do anything for him. The prayer of the petition was that the deeds be canceled and set aside, that the defendants be held to account for rents and profits, and that partition of the lands be made. Issues were joined by an answer denying generally, and pleading the statutes of limitations. Change of venue was taken to Leavenworth county, where trial of the issues was had before the court; two questions however, being submitted to a jury. with their answers, were as follows: "(1) Was Conrad Schuster of sound mind and memory at the time he executed the deeds in controversy. Answer. No. (2) Was the execution of the deeds in controversy due to, and the result of, undue influence exerted upon the grantor by the defendants, or any of them. Answer. Yes." These answers were approved and adopted by the court, which thereupon set aside the deeds, proceeded to an accounting between the parties for rents and profits, and decreed partition of the premises in accordance with their respective interests, as the court found them to be. This judgment the plaintiffs in error, who were defendants below, now seek to have reversed. The claimed errors will be considered in the order in which they are presented.

These,

1. That error was committed in overruling an objection to the introduction of evidence because the petition did not state facts sufficient to constitute a cause of action. This for the following reasons:

(a) Because the petition showed on its face that the plaintiff below was out of possession of the real estate in controversy, and the action, being one in partition, and not in ejectment, could not be maintained by one thus situated, as against those in possession. Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, and Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168, are cited in support of this claim. It must, however, be remembered that the action was not primarily one in partition, but one to set aside deeds fraudulently obtained; that the relief, so far as the partition was concerned, was incidental, and might have been denied, even though the deeds had been set aside. In Delashmutt v. Parrent, 39 Kan. 557, 18 Pac. 717, the court uses the following language: "Under our Code, however, the fact that the property is held adversely to the plaintiff will not defeat an action of partition, when brought in connection with, or as a part of, another action for the recovery of real property. Under our rules of pleading, the two causes of action may be united in one action, or they may,