Summary
ERROR TO OSAGE CIRCUIT COURT.
The first point which presents itself is as to the legal ability of the plaintiff to maintain a suit for services rendered the estate-during the contract about the validity of the will of Evans. If his freedom commenced from the death of the emancipator, he had a right to sue and recover his legal demands from that day. I know no rule of law better established than that a testator, in reference to everything except real-estate, is presumed .to speak at the time of his death. In 4 Dana, p. 188, the court, in commenting upon a case in almost every respect similar to the present, says, that “ the person emancipated is a free man from the time of the testator’s death. His (the testator’s! will, then, operated for every purpose for which it could he effectual. The subsequent probate was only necessary as evidence of its existence and legal validity.” It is true the third section of the emancipation act of this State (Digest, 1845, p. 1019), makes emancipated slaves liable to be taken in execution to satisfy debts contracted prior to the emancipartion. This provision cannot he construed to prolong the time of servitude. It means that a slave emancipated according to the two preceding sections of the act,, inajr, for the purpose of satisfying debts, again be reduced to a state of servitude. Williams on Executors, 1031; 1 Tucker’s Oom. 303, and authorities there cited ; 4 McCord, 39, case of Blcock’s will; 1 J. J. Marsh. 17 ; 4 J. J. Marsh. 103. The second question is whether the County Court has jurisdiction to hear and determine a demand against an estate, accruing after the death of the testator or intestate. See act to establish Courts, Digest, p. 331, §13; act concerning Administration, art. 5, §§ 9, 10, Digest, p. 97-8; Digest, title Justices’ Courts, § 4, p. 635. The plaintiff, if he had a right to sue, and to sue in the Probate Court, sets forth facts in his affidavit, which would entitle him to sue as a poor person, and consequently to pursue all remedies, either by appeal to a Superior Court or otherwise, to establish and secure his rights. If he had a right to sue as a poor person in the Probate Court, he had a right under the law to appeal to the Circuit Court, if he deemed an appeal necessary to secure his rights. See act concerning Costs in Civil Cases, § 4, Digest, p. 241.
1. Peter was a slave belonging to the estate of Evans at Evans’ death. His right to his freedom depended upon the validity of the will; if the.will had been declared void, he would have remained a slave. He acquired no rights under the will until it was admitted to probate and established according to law ; consequently he was a slave at the time the services, for which claims were rendered, and as such his services belonged to-the estate, and he is not entitled at law to recover for the same. See Rev. Code, p. 1019, art. 3, § 1 ; see Rev. Code, p. 533, § 14. 2. Peter’s rights all arise under the will; while tlie will was in the possession of Evans, during his life-time, he had the right to alter it at any time, so as to deprive him of his freedom, and Peter would have remained a slave. If the will had been declared void upon the contest, Peter would have remained a slave; as much so as if the will had never had an existence. The will was not perfected until it was probated, and consequently Peter’s right to freedom was not perfect, or rather he had no right to freedom until the will was made perfect by being admitted to probate. If the positions assumed above be correct, Peter clearly had no right to sue, and the case was properly dismissed by the Circuit Court. 8. But admit that this position is incorrect, and still Peter cannot maintain this suit. The account purports to be a claim against the estate of Evans for services rendered after the death of Evans. Most clearly Evans never contracted any such debt with his slave, and if any contract was made, it was with some other person, and that person, if anybody, but not the estate of Evans, is liable to Peter. If the services were rendered voluntarily, no principle of law is better settled, than that he cannot in this way make the estate his debtor. It is contended, however, that this is a claim properly rendered against the estate of Evans. How this can be it is difficult to see. The account is for boarding, clothing, &c., of certain slaves said to belong to the estate. Who had the right to contract any such debt on the credit of the estate ? Hot the administrator, unless by order of the Probate Court. The only ground upon which such a claim could be properly based, would be that it was for expenses necessarily incurred in administering the estate. This, at best, would but make a claim against the administrator, as between him and Peter, which, when paid by the administrator, would be a claim in his hands to be submitted by him for allowance in the settlement of his accounts. But if this is a claim for which the estate of Evans is liable, still the case was properly dismissed, because no sufficient affidavit was made to the account. The 9th section of the 4th article of the statute concerning Executors and Administrators, Bev. Code of 1845, p. 93, prescribes the affidavit to be made by persons having claims against estates, before the Probate Court is authorized to allow such claim. The 11th section of the same article makes provision for the making of the affidavit required by the 9th section, by an agenft in cases therein specified. McCampbell, who makes the affidavit accompanying this account, does not bring himself within the provisions of that statute, and to allow an affidavit to be made under such circumstances, would be to defeat the object of the law. The affidavit of McCampbell is a nullity. Indeed it is difficult to find an excuse for McCampbell in making the affidavit. So far as the record shows, Peter may have received full satisfaction for any claim he might have had against the estate, if he ever had any, and there is nothing to show that the suit is prosecuted by his authority. 4. The plaintiff made no motion for a new trial, and gave the Circuit Court no opportunity to correct any error it may have committed, and this court will not review a judgment of the Circuit Court, unless there is a motion for a new trial. See 11 Mo. R. 034 ; Rhodes v. White, and the cases there cited. 5. Ho exception was taken to the opinion of the court during the progress of the cause as required by the statute. See Rev. Code, 1845, p. 830, § 35, and Mo. Rpassim..
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
