Tenn. Code Ann. §24-1-203 tends to confuse. Many jurisdictions have repealed similar legislation. An attempt was launched in our Senate Judiciary Committee years ago. I sat in an uncomfortable chair waiting for my agenda item to be called, but I listened with interest to a then-junior senator tally the reasons for repeal. When the vote was tallied, however, there was only one favoring the motion. So we're stuck with this language:

In actions ... by or against executors [or] administrators ... in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator [or] intestate ... unless called to testify thereto by the opposite party.

Note that only named parties are rendered incompetent. Interested witness may testify and documents may be introduced on the subjects of a decedent's statements or transactions.

I initially misunderstood a slip opinion not long ago. It was Simpson v. Davis, 25 TAM 43-18 (Tenn. Ct. App. 2000), perm app. denied May 21, 2001. I take no solace from the same mistake by the trial court and both appellate courts. I should have done a better job of analysis.

To summarize the complex facts, Sam Simpson and wife Lizzie moved to the latter's family farm and built a house. Sam apparently assumed his spouse had some interest in the land beneath the house.

The matriarch died, and Lizzie's sister Addie Davis handled that estate. At some point she purchased all siblings' realty interests.

Lizzie died, and widower Sam woke up in a house he didn't own. He sued sister-in-law Addie on two theories. One, she breached her fiduciary duties. Two, she was unjustly enriched by the value of Sam's house.

Naturally Addie's lawyer took a discovery deposition of Sam. Not surprisingly, most of Sam's sworn answers supported his positions. He deposed that he and wife never discussed who owned the land where their house stood.

Between the deposition and trial day Sam died! That's three dead folks if you've been counting. Is this Hamlet?

During what became styled Estate of Sam Simpson v. Addie Davis, the estate's counsel offered Sam's deposition. Defense counsel objected based on the dead man's statute.

But was a named party testifying? No. The estate representative was not and Addie wasn't. The offered evidence was a document. Although Sam was "testifying" during his discovery deposition, he was no longer a named party.The ruling should have been that the statute was inapplicable.

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Donald F. Paine is a past president of the Tennessee Bar Association and a partner in the Knoxville firm of Paine, Tarwater, Bickers, and Tillman. He was elected to membership in the American College of Trial Lawyers and the American Law Institute. Paine lectures for the Tennessee Law Institute, BAR/BRI Bar Review and the Tennessee Judicial Conference. He is reporter to the Supreme Court's Advisory Commission on the Rules of Practice and Procedure.