(dissenting): I cannot agree to the disposition made of the above appeal, and, briefly stated, my reasons are as follows:
The claim originally filed in the probate court must be construed *342to be one that that court could entertain. The claim could be construed either as one on an express contract for services where the agreed price was $20 per day or an express contract for services to be paid for at what they were worth, that worth being alleged to be $20 per day, but under no circumstances could the claim be construed as one for specific performance of a contract whereby lands were to be given for services performed.
When the appeal was taken to the district court, the issue to be tried there was the same as in the probate court. In the district court the claimant filed an amended claim covering not only the original claim but alleging a contract whereby she was to get definitely described real estate as consideration for services performed and to. be performed and a supplement to that contract whereby she was to get certain income, etc., from the real estate prior to her mother’s death. On the trial appellants repeatedly objected to evidence of those later contracts for the reason, among others, that they were not a part of the original claim and no claim had been made on them until they were barred by the statute of limitations.
Appellees attempt to justify by contending that proof of change in the form of the consideration to be paid does not change the claim, citing in support Darnell v. Haines, 119 Kan. 633, 240 Pac. 582. That case is no authority for permitting what was done here. In that case the claim originally filed in the probate court was heard and denied, an appeal taken, and the matter then dismissed without prejudice. Later an action was brought in the district court, which had full jurisdiction over actions involving real estate. In that action it was held there could be recovery for services rendered and judgment for a sum measured by the value of lands, and that the claimant was ■ privileged to elect between recovery of the value of her services and recovery of value of the lands. There the court had a full jurisdiction in an orginal action; here it had only a limited jurisdiction on appeal. But that is not what was done here. Claimant instituted an action in the probate court for a money judgment on a contract calling for the payment of a definite sum. And as to that contract, on the appeal the jury refused to find there was a contract for that definite sum, but found that claimant’s services were worth $5 per day, or a total of $1,745, and its general verdict was for that amount. In my opinion that was all that was properly submitted to the jury and that verdict should stand.
It may be said that assuming there had been timely allegation *343of the contract whereby in consideration of her performance of services claimant was to receive specified real estate, there was proof to-sustain it, and 'the jury so found. That contract was for land and any action to recover it had to. be instituted in the district court. That contract was not pleaded nor' relied upon until after the time had expired in which claims against the estate could be proved. That contention was appropriately raised in the trial court and is presented on appeal in this court. The contention was good and should have been sustained.
I am authorized to say that Mr. Justice Harvey and Mr. Justice Wedell j oin. in the foregoing dissenting opinion.