In a lawsuit against Huddleston’s Estate, Plaintiff’s witness Wilson was asked to testify to what Huddleston (who was now deceased and whose estate and trust were party defendants in the case) said to him while she was still alive. The Estate objected, saying inter alia that the statement of Huddleston was hearsay.
The trial court held, and the Court of Appeals affirmed, that the statement was admissible under Tenn. R. Evid. 803(1.2), which states, in pertinent part, that the following is not excluded by the hearsay rule:
A statement offered against a party that is (A) the party’s own statement in either an individual or a representative capacity, or . . . (F) a statement by a person in privity of estate with the party.
In Jetton Developments, LLC v. Estate of Dorothy Huddleston, No. M2023-00026-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2023), the appellate court found that the (a) declarant’s estate (and trust) were a parties to the estate; (b) the estate was in privity to the decedent; and (c) the current trustee of the trust (a named defendant) was in privity with the former trustee (the decedent).
By the way, you may have been wondering whether the “Dead Man’s Statute,” Tenn. Code Ann. Sec. 24-1-203 prohibited Wilson from testifying about what the late Ms. Huddleston said to him. Nope. Why? Because the “‘Dead Man’s statute … applies only when the proposed witness is a party to the suit.'” Id. at *6 (citations omitted). Wilson was a witness, not a party defendant or plaintiff. This case reminds us of a significant hole in the Dead Man’s Statute – though a party may be prohibited from saying what a now deceased adverse party said, the same statement will be admissible if overhead by a third party. Indeed, the above-referenced case cites another decision, Logan v. Estate of Cannon, No. E2015-002254-COA-R3-CV, 2016 WL 5344526, at *6 (Tenn. Ct. App. Sept. 23, 2016) on that very point. Logan, the party plaintiff, was not permitted to testify about what the late Ms. Cannon told him about a sale of real estate, but Logan’s co-worker was permitted to testify that he overhead Logan and Ms. Cannon talking about the sale and the substance of what he overhead.