Dewhurst v. Shepherd's

JUDGE WHITE delivered the opinion of the court. In August, 1893, R. C. Shepherd, executor of John H. Shepherd, brought an action in the Bullitt Circuit Court, seeking a settlement of the estate of said John EL Shepherd, and said action was referred to the master commissioner to take proof of claims, etc. The appellant, John Dewhurst, filed a claim with the commissioner against the estate for the sum of $294 in gross, the items composing said account are not shown at all. [240] Tbe claimant, Dewhurst, verifies said account as the law directs, and the affidavit of the only witness, W. J. Phelps, states that he has examined the account and he believes the same to be reasonable, correct, just, due and unpaid, and by an amendment says that same is a just demand against the estate of J. H. Shepherd. This claim was reported *by the commissioner and by him allowed. The executor excepted to this claim because the same was not proven, is unjust and denied the fact of indebtedness to Dewhurst at all. The court sustained the exceptions and .rejected said claim, and from said order and judgment said claimant appeals to this court. There is no bill of exceptions in the record and nothing to show that on the trial of'the exceptions any evidence was heard, and as the correctness of the claim was denied by the exceptions, the burden of proving same was on appellant to establish his claim, and he having failed to do so, it was properly rejected. Besides, the affidavit of the proving witness does not meet the requirements of the statutes. Section 3870, of Kentncky Statutes, provides: * * * “it shall also be verified by a person other than the claimant, who shall state in his affidavit rthat he believes the claim to be just and correct, and ‘give the reasons why he so believes.’ ” ■ The evident object of the part of the statute, supra, we have italicised was to compel a claimant to bring a witness who had some knowledge of the facts, so he could give a reason for testifying that it was just or that he believed it was just. This the witness, Phelps, wholly failed to do. Finding no error, the judgment of the circuit court rejecting this claim is affirmed.