Mustonen's Estate, Matter of

• Decision Date: 28 September 1981
• Docket Number: CA-CIV,No. 2,2
• Citation: 130 Ariz. 283,635 P.2d 876
• Parties: In the Matter of the ESTATE OF Reno MUSTONEN, Deceased. Arney MUSTONEN, Petitioner/Appellant, v. Donald R. SCHROEDER, Personal Representative of the Estate of Reno Mustonen; and the Estate of Reno Mustonen, Respondents/Appellees. 3945.
• Court: Arizona Court of Appeals

Page 876

635 P.2d 876

130 Ariz. 283

In the Matter of the ESTATE OF Reno MUSTONEN, Deceased.

Arney MUSTONEN, Petitioner/Appellant, v. Donald R. SCHROEDER, Personal Representative of the Estate of Reno Mustonen; and the Estate of Reno Mustonen, Respondents/Appellees.

No. 2 CA-CIV 3945.

Court of Appeals of Arizona, Division 2.

Sept. 28, 1981.

Laurence M. Berlin, Tucson, for petitioner/appellant.

Vincent & Gjurgevich by Edward C. Vincent, Tucson, for respondents/appellees.

OPINION

BIRDSALL, Judge.

This appeal is from a denial of appellant's claim against the estate of the decedent, Reno Mustonen, for the value of services allegedly rendered in return for the decedent's unfulfilled promise to devise certain real property to appellant. The only issue raised on appeal is whether the trial court abused its discretion in determining that appellant's testimony concerning the alleged agreement was barred by the dead man statute. We find no abuse of discretion and affirm.

Since appellant was an interested party to an action against the decedent's personal representative, the admissibility of his offered testimony was governed by A.R.S. § 12-2251, which provides:

"In an action by or against executors, administrators or guardians in which judgment may be given for or against them as such, 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, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent."

Though the general incompetency imposed by this statute seems to have only two narrow exceptions, the words "required to testify thereto by the court" have been given broader meaning than they might initially connote. Those words have long been interpreted to make the application of the statute discretionary with the trial court, with the result that a party is "required" to testify when the court, exercising its discretion, overrules an objection to the party's testimony. Goldman v. Sotelo, 7 Ariz. 23, 60 P. 696 (1900); Costello v. Gleeson, 15 Ariz. 280, 138 P. 544 (1914).

In this case, however, the court exercised its discretion to exclude the offered testimony of the appellant. Relying primarily upon Cachenos v. Baumann, 25 Ariz.App. 502, 544 P.2d 1103 (1976), appellant contends that this exclusion was an abuse of the court's discretion because it worked an injustice upon him and because the court applied an improper standard to determine whether his offered testimony was corroborated by independent evidence. In the relevant passage from Cachenos, Division One of this court stated:

"(T)he discretion of the trial court in admitting testimony of transactions with or statements by the decedent will be upheld where (1) it appears an injustice will result if the testimony is rejected, Davey v. Janson, 62 Ariz. 39, 153 P.2d 158 (1944), or ((2)) where there is independent evidence to corroborate the transaction with the decedent. Goff v. Guyton, 86 Ariz. 349, 346 P.2d 286 (1959); Condos v. Felder, supra. Conversely, it would appear if one of these two elements are present, a rejection of testimony concerning transactions with or statements by the decedent would result in an abuse of discretion." 25 Ariz.App. at 505, 544 P.2d at 1106.

Appellant contends that his testimony was corroborated by independent evidence. The trial court, however, in a finding of fact made a part of its judgment, found that there was "no substantial or convincing corroborative evidence supporting the claim of Arny Mustonen."

We have not been furnished either a reporter's transcript of the proceedings below or one of the substantial equivalents provided for in Rule 11, Arizona Rules of Civil Appellate Procedure, 17A A.R.S. Being unable to review the evidence, we must presume that it supported the trial court's finding. Bryant v. Thunderbird Academy, 103 Ariz. 247, 439 P.2d 818 (1968).

Appellant further contends that the trial court's requirement that corroborative evidence be "substantial or convincing" was an error of law reviewable without resort to a more complete record. He asserts that the standard of "substantial or convincing" is not established by prior cases and places too onerous a burden upon a party seeking to avoid the dead man statute. We do not agree.

Appellant correctly notes that the law establishes no concrete standard...