Mathews v. Hines, 75-16-Civ-Oc.

• Decision Date: 26 January 1978
• Docket Number: No. 75-16-Civ-Oc.,75-16-Civ-Oc.
• Parties: Gloria R. MATHEWS a/k/a Gloria Hines Mathews, Plaintiff, v. Ingrid Cremer HINES, Defendant.
• Court: U.S. District Court — Middle District of Florida

444 F. Supp. 1201

Gloria R. MATHEWS a/k/a Gloria Hines Mathews, Plaintiff, v. Ingrid Cremer HINES, Defendant.

No. 75-16-Civ-Oc.

United States District Court, M. D. Florida, Ocala Division.

January 26, 1978.

COPYRIGHT MATERIAL OMITTED

Andrew G. Pattillo, Jr., Pattillo, MacKay & McKeever, Ocala, Fla., for plaintiff.

Robert G. Bamond, St. Petersburg, Fla., for defendant.

OPINION

CHARLES R. SCOTT, District Judge.

This case is brought under diversity-of-citizenship jurisdiction, concerning a matter in dispute valued at more than $10,000.00, pursuant to 28 U.S.C. § 1332. Plaintiff, a resident of the State of Alabama, is the daughter of the decedent in this case. Defendant, a resident of the State of Florida, was the wife of the decedent at the time of his death. The decedent died on November 14, 1974.

Plaintiff alleges that between October, 1974, and November 14, 1974, when the decedent died, he transferred real and personal property, including his interest in pension and retirement funds payable at his death, to defendant. These assets, but for those transfers before his death, would have been distributed as part of the assets of the decedent's estate under the testamentary provisions of his will. Plaintiff alleges that, because of the transfers, her share as a devisee under the will was greatly diminished. Additionally, plaintiff alleges that the transfers were made on express and implied promises by defendant to the decedent that defendant would pay plaintiff $100,000.00 from out of the pension and retirement funds. Plaintiff asserts that defendant has been unjustly enriched and has breached her promise to the decedent of which plaintiff was a third-party beneficiary. Plaintiff seeks injunctive relief, specific performance of the third-party beneficiary promise, the imposition of a constructive trust for plaintiff's benefit, voidance of the transfers prior to the decedent's death, damages and attorney fees.

On July 11, 1975, and again on January 19, 1976, plaintiff deposed defendant by oral examination in accordance with Fed.R. Civ.P. 30. At those depositions, defendant refused to answer questions asked her about communications made by the decedent to her that involved the conveyances and transfers which are the subject matter of this case. Defendant's refusal to answer the questions asked was premised upon Fla. Stat. § 90.05, known as `the Dead Man's Statute'. Because of defendant's refusal to answer the questions on the basis of this purported statutory privilege, plaintiff filed a motion for an order compelling defendant to answer those questions. The question presented by that motion was whether the surviving widow and donative transferee of a decedent is protected from having to answer questions about communications with the decedent involving the transfer transactions, when the party asking the questions is the heir at law of the decedent and a claimant to part of the res transferred by the decedent.

The statute, Fla.Stat. § 90.05,¹ forbids the testimony by any party, interested person, or person through whom a party or an interested person makes a claim, from testifying against a person in a representative capacity for the decedent, concerning transactions or communications with the decedent. The intended effect is not to restrict the admission of testimony, but to protect against self-serving testimony that is otherwise unexaminable and uncontestable. The purpose of the Dead Man's Statute is "to prevent any person who might directly benefit from such testimony from giving testimony as to transactions with the deceased." Gay v. McCaughan, 272 F.2d 160, 163 (5th Cir. 1959). The statute precludes surviving parties to a transaction or communication with the deceased from gaining the benefit of their testimony concerning the transaction or statement under such circumstances since the representative of the decedent is deprived of his version of the transaction or statement.

The statute applies to persons interested in the event of the action and operates as a bar to their testimony as to transactions and communications between them and the deceased person. Clark v. Grimsley, 270 So.2d 53, 56 (1st D.C.A. Fla. 1972).

The statutory privilege contains four essential elements: (1) two classes of persons, (a) those prohibited from testimony and (b) those protected against testimony; (2) a legally recognized interest by persons prohibited from testimony; (3) transactions or communications between such persons and a decedent that are involved in a case; and (4) a representative capacity by those persons protected against testimony.

The class of persons prohibited from testimony regarding transactions or communications with a decedent, because of their interest, are parties, other persons with legally recognized interests, and persons through whom parties or other persons with legally recognized interest derive their claims of interest or right. The class of persons protected from testimony against them in their representative capacity, concerning transactions or communications with a decedent, is comprised of executors or administrators of a decedent's estate, a decedent's heirs at law, next of kin, assignees, legatees or devisees under a will, and survivors.

Only if a person has a legally recognized interest is he a member of a class of persons prohibited from testimony by the Dead Man's Statute. A legally recognized interest is necessary for the statutory bar to apply. Broward Nat'l Bank v. Bear, 125 So.2d 760, 762 (2d D.C.A. Fla. 1961). The kind of interest recognized by law as precluded under the Dead Man's Statute is a claim of right or title against a decedent or his estate. The longstanding test for interest that would bar a witness from testifying, under Florida law, is two fold: (1) if a witness will directly benefit from the outcome of litigation by the operation and effect of a judgment, or (2) if the record in the litigation can serve as legal evidence for or against the witness in some other litigation, he has a legally significant interest. Fields v. Fields, 140 Fla. 269, 191 So. 512, 514 (1939); Clark v. Grimsley, 270 So.2d at 56; Broward Nat'l Bank v. Bear, 125 So.2d at 762. Such an interest, however, must be vested at the time of the decedent's death, and not a right that will become vested later. Helms v. First Nat'l Bank of Tampa, 28 So.2d 262, 263 (Fla.1947).

It must be present, certain, and vested interest, and not an interest uncertain, remote, or contingent. Fields v. Fields, 140 Fla. 269, 191 So. at 514; see Clark v. Grimsley, 270 So.2d at 56; Broward Nat'l Bank v. Bear, 125 So.2d at 762.

Examples of such legally recognized interests are heirs having a joint bank account with a decedent so that there was a right of survivorship, Disbro v. Boyce, 124 So.2d 756 (3d D.C.A. Fla. 1960); a surviving widow claiming an intestate inheritance by means of such survivorship, Rance v. Hutchinson, 131 Fla. 460, 179 So. 777 (1938); an alleged widow of a common-law marriage with a decedent, Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933); purported devisees under a decedent's will, Martel v. Carlson, 118 So.2d 592 (3d D.C.A. Fla. 1960); and obligor on a note to a decedent, claiming payment of the note, Broward Nat'l Bank v. Bear, 125 So.2d 760 (2d D.C.A. Fla. 1961); heirs at law of an intestate decedent should the will be invalid, who sought to testify concerning the authenticity of letters from the decedent to show the invalidity of his will, Mathews v. Mathews, 177 So.2d 497 (2d D.C.A. Fla. 1965). On the other hand, in Mathews v. Mathews, supra, the testimony by a sister-in-law about the authenticity of the letters tending to show the invalidity of the decedent's will was not by a person with a legally recognized interest; neither was a beneficiary of a decedent's life insurance policy where the right to such proceeds had not vested at the time of the decedent's death, Helms v. First Nat'l Bank of Tampa, 28 So.2d 262 (Fla. 1947).

The terms "transaction" or "communication" have not been clarified with any referential specificity under Florida law. Broward Nat'l Bank v. Bear, 125 So.2d at 761.

It has been said that whatever may be done by one person affecting the rights of another out of which a cause of action may arise constitutes a transaction. Id.

The Supreme Court of Florida has partly defined "transaction" and "communication" as including

. . . every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. Embrey v. Southern Gas and Elec. Corp., 63 So.2d 258, 263 (Fla.1953); Broward Nat'l Bank v. Bear, 125 So.2d at 761-62.

More particularly, the Florida Supreme Court has specified that "transaction" means

. . . the doing or performing of any business, the management of an affair, the adjustment of a dispute between parties by mutual agreement. Fields v. Fields, 140 Fla. 269, 191 So. at 515.

Hence, the effect of the Dead Man's Statute is not to restrict a witness from testimony generally, but only to preclude his testimony upon certain specific subjects: transactions or communications with the decedent. Id. Some of the matters included within the meaning of the words "transactions" or "communications" are the payment or non-payment of an obligation to a decedent, Broward Nat'l Bank v. Bear, supra; the fact of whose consideration paid for land and whose property it legally was, Booth v. Lanox, 45 Fla. 191, 34 So. 566 (1903); an alleged promise by a decedent to devise in his will to someone, Martel v. Carlson, 118 So.2d 592 (3d D.C.A. Fla. 1960); an alleged common-law marriage, Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933); and a transfer by assignment of a chose in action by a decedent to her husband to be held in trust for their children, Rance v. Hutchinson, 131 Fla. 460, 179 So. 777 (19...