Colwell

This is an action by which" plaintiff sought to recover from the estate of Ellen East certain money alleged to be due for services rendered decedent during her lifetime.

The case was tried with a jury and following a verdict for plaintiff judgment was entered in his favor. A motion for a new trial was made and denied and defendants appeal.

Before detailing the facts there are some preliminary points that may be considered.

Appellants contend that there is a fatal variance between the cause of action sued on and the claim presented to the executrices for allowance.

The point is made that the complaint alleges that the services were rendered decedent at her special instance and request while the claim presented was that the services were furnished under an agreement and contract. Hence, argues appellant, there is the variance claimed. A mere statement of the point is its own refutation, even conceding that the law requires that before an action on a claim can be maintained the claim must first be presented to the representatives of the estate.

The next claim of appellants is that the evidence does not support the contract alleged. The complaint alleges:

The complaint further…