113 Me. 389 | Me. | 1915
Assumpsit to recover for services rendered to the defendant’s testate. The verdict haying been for the plaintiff, the case comes up on the defendant’s motion for a new trial and exceptions. A single point presented by the exceptions is all that we need to consider.
By R. S., Chap. 89, Sec. 14, it is provided that “all claims against estates of deceased persons .... shall be presented to the executor or administrator in writing, or filed in the probate court, supported by the affidavit of the claimant, or of some other person cognizant thereof, etc.....Any claim not so presented or filed shall be forever barred against the estate etc.” By this statute, the presentment or filing of a claim is made a condition precedent to the right to maintain an action. Presentment or filing must be alleged and proved. Eaton v. Buswell, 69 Maine, 552; Rawson v. Knight, 71 Maine, 99; Littlefield v. Cook, 112 Maine, 551. Want of filing or presentment may be taken advantage of under the general issue. Eaton v. Buswell, supra; Story’s Pleadings, 2nd Ed., page 131.
In this case, the claim was filed in the Probate Court supported .only by an affidavit purporting to have been made before a notary public in Minnesota. No evidence was offered to show that by the laws of Minnesota a notary public is authorized to take affidavits. •The sufficiency of this affidavit is challenged by the exceptions.
But the law of Minnesota is not presumed to be the same as our statute. It is presumed to be like our common law. Carpenter v. Grand Trunk Ry., 72 Maine, 388; Jowett v. Wallace, 112 Maine, 389; Franklin Motor Car Co. v. Hamilton, 113 Maine, 63. Before effect can be given to the statute of another State, it must be proved as. a fact. See same cases.
It follows, then, that it is not shown that the notary public in Minnesota had authority to administer the oath. The presumption is that he did not. If he did not, the purported affidavit is not an affidavit at all. And the plaintiff has not proved the performance of the statutory condition precedent to the right to maintain this action.
Exceptions sustained.