13 Mo. 143 | Mo. | 1850
The plaintiff, an emancipated slave under the will of Jesse Evans, deceased, brought a suit in the Probate Court of Osage county in forma pauperis, against King, the administrator of Evans, to recover the value of Certain alleged sevices performed by Peter, during the contest about Evans’ will. K
In the Probate Court, the writ was dismissed, and an appeal taken to the Circuit Court, by one James McCampbell, who professed to be Peter’s agent, and who had made an affidavit in that capacity, before the Probate Court. The entry of this oath in the record of the Probate Court is as as follows : “And now comes the said plaintiff, by his agent, James McCamp-bell, and makes his oath that it is-wish to sue as a poor person, and that all credits have been given to the estate of said Jesse Evans, deceased.”
The motion to dismiss, was renewed in the Circuit Court, for various reasons : 1. Because it is apparent from the record filed, that the said plaintiff is not entitled to sue nor to recover, for the services alleged by him to have been rendered to said estate. 3. Because the plaintiff has not made the affidavit required by law, for the allowance of demands against an estate. 3, 4, 5 and
Our statute concerning the Administration of Estates requires the claimant, who has a demand against an estate, to make oath in open court, or file an affidavit, that he has given credit to the estate for all payments and set-offs. The statute permits this affidavit to be made by an agent of the claimant, when such agent has had the management and transaction of the business out of which such demand arose, or when such agent had the means of personally knowing the facts required to be sworn to. There is nothing in this record to show that McCampbell was an agent of the plaintiff, or had the management of the business from which this demand sprung, or that he had any means of knowing anything about it. Por aught that appears, the contrary may have been established to the satisfaction of the Circuit Court. It is therefore manifestly impossible for this court to see that the Circuit Court improperly dismissed the case. In the absence of all proof either way, the presumption is in favor of the propriety of the disposition which that court made of the cause. Judgment affirmed.