TBA Law Blog

Posted by: T. Pinkley on Sep 24, 2010

Journal Issue Date: Oct 2010

Journal Name: October 2010 - Vol. 46, No. 10

Autopsy reveals Dead Man's Statute still obtuse after all these years

It has now been almost 30 years since my article[1] on the Tennessee Dead Man's Statute[2] was published. There, I reviewed every (I hope) Tennessee appellate decision that touched upon the Dead Man's Statute, and I concluded:

The Tennessee Dead Man's Statute is an exceedingly complex and a thoroughly obtuse rule. It is based on the fallacious assumption that it will prevent fraudulent claims against the estates of decedents. Even if this assumption were true, the time spent interpreting and applying the statute far outweighs whatever benefit that results from it. It is the lingering remnant of an idea long thought to be an anachronism, and it deserves no better fate than to be repealed.[3]

The Tennessee legislature, of course, gave my recommendation no particular consideration at all, and the statute remains on the books.[4]

Considering the passage of time, I thought perhaps I should take another look to see if the courts had further restricted the statute so that it is less of an unnecessary burden than it once was. So, once again, I reviewed every (I hope) Tennessee appellate decision since the publishing of my article and again conclude that the statute is as recondite[5] as ever it was.

Because of the lack of progress in the courts and the legislature's woeful negligence, a brief survey of the last 30 years' worth of decisions seemed to be in order. For those of you brave (or foolhardy) enough, a quick look through my earlier article might provide helpful background. [Download the article.] In this update, after a brief introduction discussing a handful of cases in which the statute has been correctly and uncontroversially applied, I will separate the statute's language into its constituent phrases (or at least as many as apply) and summarize the cases that turn on those words.

As a reminder, the Dead Man's statute, says:

In actions or proceedings by or against executors, administrators, or guardians, 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, intestate, or ward, unless called to testify thereto by the opposite party. If a corporation is a party, this disqualification shall extend to its officers of every grade and its directors.[6]

A. Proper Application of the Rule

Despite my criticism, there is no doubt that, in some cases, the statute has its intended salutary effect. For example, in Burke v. Arnold,[7] the claimant (decedent's ex-wife) testified not about any statement by the decedent, but about the circumstances surrounding the execution by her then-husband of an acknowledgement of a debt to the claimant. The court held that the offered testimony clearly was about a "transaction with" the decedent and excluded the testimony.[8] Similarly, in In re Estate of Murphy[9] the statute was applied to exclude testimony that was relevant to the defense of the statute of limitations, because the evidence still concerned a "transaction with" the decedent, and the court was unwilling to graft a relevance requirement onto the statute. The court in In re Estate of Marks[10] properly held that the statute operated to bar the offered testimony of the claimant, the decedent's fiancée, who wanted to testify about oral promises allegedly made to her by the decedent to induce her to marry him. Finally, in In re Estate of Wolfe,[11] the claimant alleged that the decedent had promised to "take care of" her in return for her taking care of him in his declining years. Her deposition, the only evidence of the decedent's statements was properly excluded. All of these cases present the classic situation where the statute should apply: A claim against a decedent's estate with only the surviving claimant's oral testimony to support the claim. The courts have (rightly, I think) viewed these claims with something of a gimlet eye.

B. Constituent Phrases

1. Representative Capacity
In order for the statute to apply, the executor, administrator, or guardian must be a party in his or her representative capacity. The decedent's estate is the real party in interest,[12] and it is only if the estate is implicated that the statute applies. This issue has come up very rarely in recent years, at least in the reported decisions. It is worthwhile, however, to remember that the statute does not apply in a wrongful death action under the Tennessee Wrongful Death Statute.[13] The Wrongful Death Statute allows the action to be brought by the executor or administrator, but any recovery goes to the statutory beneficiaries and does not become part of the decedent's estate. In Holliman v. McGrew,[14] the court noted this rule, but then went on, rather puzzlingly, to say, "In the present case, it is not precisely clear in which capacity the plaintiffs brought this suit. Accordingly, we will assume, as the parties and trial court did, that the Dead Man's Statute is applicable."[15] I say "puzzlingly" because the Wrongful Death Statute makes clear that the action may be brought by the personal representative "for the benefit of the surviving spouse or next of kin;"[16] thus, the estate has no interest in the action, and the statute should not have been applied.

2. Judgment For or Against the Personal Representative
Perhaps I should rename this section and call it something like "Judgment For or Against the Personal Representative in a Way that has Some Effect on the Estate," cumbersome though that is. To explain: The Dead Man's Statute does not apply in cases in which the estate will neither be diminished nor increased, such as with will contests.[17] The courts have reasoned that the question in those cases is not whether the estate will be diminished or increased by the action, but to whom the estate should go; therefore, the statute does not apply.

It is not clear whether the statute applies in cases where a surviving spouse files a claim against the estate when the parties had entered into an antenuptial agreement, the claim typically being for a year's support,[18] exempt property,[19] or the elective share.[20] In those cases, the executor usually responds by saying that the claim must fail because the claimant agreed to waive any claim against the estate in the antenuptial agreement. The claimant then typically offers to provide evidence to the court that the antenuptial agreement is invalid for one of the reasons set out in the statute governing these agreements.[21] This issue first appeared in a reported case in 1940 in Baker v. Baker.[22] The Court of Appeals held that the claimant should have been allowed to testify about the testator's limited intent in making an antenuptial contract because the Dead Man's Statute simply didn't apply. The court reasoned that the issue was analogous to a will contest in that the question was not whether the estate would be diminished or increased, but to whom it would go.[23] Despite that promising start, the courts in the years since my article have succeeded only in muddying the water.

In Cantrell v. Estate of Cantrell,[24] the surviving spouse made a claim for a year's support, exempt property, and the elective share. The administratrix defended by introducing an antenuptial contract between the claimant and the decedent. In response, the claimant sought to testify that the decedent had threatened to send her back to the Philippines if she refused to sign the agreement, and thus that she had entered into the agreement only under duress. The Court of Appeals held that the testimony was properly excluded under the Dead Man's Statute.[25] The court mentioned the Baker case without distinguishing it, but went on to say that the claim for a year's support and the exempt property "definitely have the effect of decreasing the estate to be distributed."[26] The court did allow that there was an argument to be made whether the same was true of the elective share, but said that that argument was waived because it was not presented to the trial court.[27]

In 2005, the Middle Section managed to avoid the question in Boote v. Shivers.[28] The surviving spouse filed an action to set aside an antenuptial agreement and moved to take a year's support and an elective share. The court eventually decided that the estate had opened the door to the claimant's testimony by asking a broad question on cross-examination of the claimant,[29] but questioned the reasoning in Cantrell. The court, in an opinion by Judge Koch, noted the inconsistency between Baker and Cantrell, but (more significantly) went on to note that the Tennessee statute on antenuptial agreements requires the court to look into the "circumstances surrounding the negotiation and execution of an antenuptial agreement before it can be enforced."[30] The court stated that such an inquiry would be severely limited by "any rule that categorically excludes all testimony by parties regarding transactions with and statements by a testator or testatrix ..."[31]

So, the issue is framed: Does the Dead Man's Statute apply in a case where the surviving spouse seeks to invalidate a antenuptial agreement and to make a claim for the year's support, for exempt property, or for an elective share? The answer is not obvious.[32] I think the statute should not apply in these cases for three reasons: First, the courts have consistently held that the statute should be construed strictly against the exclusion of testimony,[33] especially when the statutory prohibition is doubtful. Second, this issue is indeed very much like a will contest. The question is who gets what, if any, portion of the estate. Superficially, of course, one could say that the surviving spouse's claims, if granted, would indeed diminish the estate just as would a claim for money due on a promissory note or for services rendered. The issue is better stated as "How is the estate to be distributed?" " the same question as in will contests. Third, and probably most persuasive to me, is Judge Koch's observation in Boote quoted above: In essence, how can we enforce the antenuptial agreement statute if the Dead Man's Statute seals the lips of all or most of those who have any knowledge of the circumstances surrounding the execution of the agreement? Given these considerations, I think the policy weighs against the application of the Dead Man's Statute in these cases.

3. The Witness Must Be a Party
The witness whose testimony is being offered must be a party to the action. In Estate of Pritchard v. McDonald, Kuhn, Smith, Miller and Tait,[34] a law firm made a claim against an estate for services rendered to the decedent. In support of its claim, the law firm offered the testimony of the lawyer who did the work for the decedent, but who had since left the firm. The trial court excluded his testimony saying that the lawyer, even though not a party, was the agent of the law firm. The Court of Appeals reversed, holding that even if the witness was an agent for the party at the time the services were rendered, the statute required that the witness be a party and this witness was not.

One must also be careful to make sure that the testimony is being offered by a party against a party. Consider these facts: While married to Madge Hilderbrand (later Madge Sherlin), Mack Hilderbrand loaned $5,000 to the defendants. The defendants wanted to testify that Mr. Hildebrand had forgiven the unpaid portion of the debt, but the trial court excluded the testimony under the Dead Man's Statute. The plaintiff, however, was not Mr. Hildebrand's estate, but rather the estate of his wife, who died later after having remarried. It is not clear how she came into possession of the note, except that it was found in a safe deposit box after her death. Mrs. Sherlin's estate was the party and the statements about which testimony was offered were allegedly made by Mr. Hilderbrand, not the testator whose estate was a party. The testimony, then, clearly did not involve a "transaction with or statement by the testator." It was therefore error for the court to have excluded the testimony. [35]

4. Neither Party Shall Be Allowed to Testify Against the Other
The only type of evidence the statute excludes is testimony. The word "testify" is not synonymous with the word "evidence": testimony comes from a witness speaking live on the witness stand or through a deposition.[36] Not all evidence is testimony: Some evidence is documentary; some evidence is real. The issue was raised in some of the older cases noted in my first article,[37] such as Nance v. Callender,[38] where the court ignored the word "testify" and decided that if the evidence was a "transaction with" the decedent, that was enough. Of course, it isn't. The evidence not only must concern a "transaction with or statement by" the decedent, it must also be in the form of testimony. The Court of Appeals addressed the definition of "testify" in In re Estate of Veal.[39] The claimant, a non-profit corporation, attempted to prove its claim against the estate by offering minutes of board meetings that contained a record of decedent's acknowledgement of the debt. The court excluded the documents under the Dead Man's Statute and the Court of Appeals affirmed, stating that the corporation was "testifying" when it offered documents into evidence. This case was wrongly decided; this evidence was documentary, not testimonial.

5. Called by the Opposite Party
The statute does not apply if the witness is called by the opposite party. There has been a surprising (at least to me) amount of activity in the courts on this issue in the last few years, mostly involving whether a party "opened the door" to otherwise excludable testimony by the questions it asked on direct, cross, or redirect examination. In Ingram v. Phillips,[40] The defendant, formerly decedent's bookkeeper, argued that by taking her discovery deposition, plaintiff had "opened the door" and waived the objection because, so the argument went, taking her deposition amounted to being called by the opposite party, citing a case from 1891[41] in support. The court quite correctly noted that in 1891 there was no such thing as a discovery deposition, and that in the earlier case the deposition had been taken for proof. The defendant's deposition in Ingram had been taken for discovery purposes and there was thus no waiver of the objection. Of course, if the plaintiff offered the deposition into evidence, the objection would be waived, as happened in Holliman v. McGrew.[42]

The courts in several cases have concerned themselves with whether the objection had been waived by a certain course of examination of the witness. In Leffew v. Mayes[43] the plaintiff testified, over defendant's objection, about transactions with the decedent. Defendant then cross-examined plaintiff about those same transactions. On appeal, the plaintiff argued that by cross-examining plaintiff on the forbidden subject, the defendant waived the objection. The court disagreed.[44] This is consistent with the opinion of the Court of Appeals in In re Estate of Haskins,[45] in which a son made a claim against his father's estate based on an alleged oral contract to either give or bequeath bank stock to the son. The sequence of proof was:

  • The son attempted to testify about conversations with his father in which the father made the promises. This testimony was objected to based on the Dead Man's Statute and the objection was sustained.
  • The son went on to testify about his ownership of certain bank stock and how he acquired it. The estate's objection to this testimony was overruled.
  • Then, on cross-examination, the estate elicited somewhat more specific testimony about the percentages of stock owned by various individuals.

The son argued that the eliciting of this last testimony opened the door to the proffered testimony about his father's promises. The court disagreed, saying that the testimony brought out on cross-examination concerned a different issue. The court went on to state what it found to be the general rule: "[W]here transactions with the decedent are first developed on direct examination over objections of representatives of the decedent, the objections are not waived by subsequent cross-examination relative to the transactions testified to on direct examination."[46] This is indeed the general rule, but the cross-examiner must be careful to limit the examination to the areas covered on direct.[47]

A slightly different situation occurred in Estate of Jones v. Hawkins,[48] which involved a claim for services rendered to decedent by plaintiff. The case proceeded as follows:

  • Plaintiff proved by non-party witnesses that the decedent had given her a $5,000 certificate of deposit for Christmas.
  • Plaintiff did not testify about the incident on direct, but was cross-examined on the issue.
  • Plaintiff testified about the incident on re-direct examination.
  • Defendant offered his own testimony about the same subject.

The plaintiff's objection to the defendant's testimony was sustained by the trial court, but the Court of Appeals disagreed, saying that the plaintiff opened the door to the testimony by testifying about the incident on re-direct. This result is questionable. The door was opened not by the claimant's testimony on re-direct, but by the claimant's testimony on cross-examination, which was testimony elicited by the defendant. She was, therefore, called to testify by the opposite party, and the defense could have had no objection to the claimant's then testifying on the same subject on re-direct. The defendant should not benefit from opening the door by then being allowed to offer his own testimony. The court's reasoning put the claimant in an untenable position: Either she could avoid the topic on re-direct and thus be stuck with her testimony on cross (presumably unfavorable to her), or she could make the choice to testify about the topic on re-direct and be found to have opened the door to her opponent's testimony. The defendant, in effect, forced plaintiff to waive her objection to his testimony.

C. Conclusion

The passage of almost 30 years has not changed my opinion of the Dead Man's Statute.[49] It closes the door of the courthouse to about as many legitimate claims as fraudulent ones and the courts continue to struggle with its application. In short, it's a lot more trouble than it's worth.  


  1. T. Harold Pinkley, Comment, The Tennessee Dead Man's Statute, 49 Tenn. L. Rev. 343 (1982). Available at www.tba.org/journal_links/pinkley-dead_mans_statute.html
  2. Tenn. Code Ann.  § 24-1-203 (2000).
  3. Pinkley, supra note 1, at 363.
  4. In his recent article on one aspect of this statute, Don Paine referred to the statute as the Dead Person's Statute. Donald F. Paine, Paine on Procedure: Will Contest Warnings, 46 Tenn. B.J. 30 (March 2010). The code section, however, is still unofficially titled "Dead Man's Statute." I'll continue to call it by the older name because to change would mess up my title for this article.
  5. I should have used this word, or perhaps "abstruse," instead of "obtuse" in the quotation from my article at the text accompanying note 3: thus, I am obtuse; the statute is abstruse.
  6. I am grateful to Don Paine for noticing that the statute's wording has very slightly changed. In the last sentence, the first word in the older version, "provided," was dropped, and the subjunctive "be" was changed to the more current "is." These changes do not affect the meaning of the statute, and were the result of the ongoing editing process by the publisher of the Tenn. Code Ann. The new version first appeared in the 2000 Replacement Volume 4.A.
  7. Burke v. Arnold, 836 S.W.2d 99 (Tenn. Ct. App. 1991).
  8. Id. at 101.
  9. In re Estate of Murphy, No. E2002-00481-COA-R3-CV, 2002 WL 31662542 (Tenn. Ct. App. Nov. 26, 2002).
  10. In re Estate of Marks, 187 S.W.3d 21 (Tenn. Ct. App. 2005).
  11. In re Estate of Wolfe, No. 03A01-9808-PB-00249, 1999 WL 172677 (Tenn. Ct. App. Mar. 24, 1999).
  12. It seems somewhat incongruous that the statute should apply in cases where the estate is the plaintiff. There is obviously no danger of fraudulent claims against the estate; the danger is fraudulent claims by the estate with the statute preventing the innocent defendant from defending herself.
  13. Tenn. Code Ann.  § § 20-5-101 et seq. (2009); see Hale v. Kearly, 67 Tenn. 40, 8 Bax. 49 (1874) and Newark Ind. Co. v. Seyfert, 54 Tenn. App. 459, 392 S.W.2d 336 (1964).
  14. Holliman v. McGrew, No. W2008-00907-COA-R3-CV, 2009 WL 302276 (Tenn. Ct. App. Feb. 5, 2009), perm. app. denied (Tenn. Aug. 17, 2009).
  15. Id. at *4.
  16. Tenn. Code Ann.  § 20-5-106(a) (2009).
  17. See Paine, supra note 4.
  18. Tenn. Code Ann.  § 30-2-102 (2007).
  19. Tenn. Code Ann.  § 30-2-101 (2007).
  20. Tenn. Code Ann.  § 31-4-101 (2007).
  21. Tenn. Code Ann.  § 36-3-501 (2005).
  22. Baker v. Baker, 142 S.W.2d 737 (Tenn. Ct. App. 1940).
  23. Id. at 744-45.
  24. Cantrell v. Estate of Cantrell, 19 S.W.3d 842 (Tenn. Ct. App. 1999).
  25. Id. at 846.
  26. Id.
  27. Id.
  28. Boote v. Shivers, 198 S.W.3d 732 (Tenn. Ct. App. 2005).
  29. See discussion in section E. below.
  30. Boote, 198 S.W.2d at 744.
  31. Id.
  32. One commentator has stated: "Several courts have addressed the issue of antenuptial agreements and the effect of the Dead Man's Statute on testimony in those cases. These cases tend to ... view antenuptial agreements as a contractual relationship that would typically fall under the umbrella of the Dead Man's Statute." Steve Planchan, Comment, The Application of the Dead Man's Statute in Family Law, 16 J. Am. Acad. Matrim. Law 561, 570 (2000). This comment does not cite the Tennessee decisions.
  33. Pinkley, supra note 1, at 347 & n.27.
  34. Estate of Pritchard v. McDonald, Kuhn, Smith, Miller and Tait, 735 S.W.2d 446 (Tenn. Ct. App. 1986).
  35. Estate of Sherlin v. Vernon, C.A. 03A01-9507-CV-00228, 1995 WL 728527 (Tenn. Ct. App. Dec. 11, 1995).
  36. "An evidential fact is said to be testimonial when it is the assertion of a human being offered as evidence of the truth of the matter asserted." John Henry Wigmore, A Pocket Code of the Rules of Evidence in Trials at Law,  § 106, Art. 1, pg. 29 (Little, Brown & Co. 1910).
  37. Pinkley, supra note 1, at 356-57.
  38. Nance v. Callender, 51 S.W. 1025 (Tenn. Ct. App. 1898).
  39. In re Estate of Veal, No. E2003-02739-COA-R3-CV, 2004 WL 2070985 (Tenn. Ct. App. Sept. 16, 2004).
  40. Ingram v. Phillips, 684 S.W.2d 954 (Tenn. Ct. App. 1984).
  41. The case was Thomas v. Irvin, 90 Tenn. 512, 16 S.W. 1045 (1891).
  42. See Holliman, 2009 WL 302276.
  43. Leffew v. Mayes, 685 S.W.2d 288 (Tenn. Ct. App.).
  44. Id. at 293.
  45. In re Estate of Haskins 224 S.W.3d 675 (Tenn. Ct. App. 2006).
  46. Id. at 684.
  47. See Boote, 198 S.W.3d at 744.
  48. Estate of Jones v. Hawkins, 1986 WL 9607 (Tenn. Ct. App. Sept. 3, 1986).
  49. Pinkley, supra note 1, at 360-63.

HAROLD PINKLEY HAROLD PINKLEY is a trial lawyer and a member of the firm of Miller & Martin PLLC in Nashville. After graduating from the University of Tennessee College of Law in 1981, he clerked for United States District Judges Frank W. Wilson and H. Ted Milburn in Chattanooga. He then practiced law in Knoxville for 11 years before joining Miller & Martin in 1997. Harold was admitted to the California bar in 2004 and now divides his time between the two states. He spends most of his time handling employment cases for employers, including many class actions, but saves time for both products liability and general business litigation matters.