Leete v. Department of Revenue

351 Mich. 326

• Court: Michigan Supreme Court
• Decided: March 5, 1958
• Docket: Docket No. 50, Calendar No. 47,339
• Status: Published

Opinion

Black, J.

(after presentation of the statement of facts by counsel). The attorney general, cooperating helpfully with us, has on request of the Court briefed “both sides” of the decisive question, stated as follows:

Is the State, in a proceeding as at bar, a “protected party” within meaning of the dead man’s statute?

Our answer is “No.” See In re Estate of Stephenson, 234 Iowa 1315 (14 NW2d 684); In re McGary Estate, 355 Pa 232 (49 A2d 350); Schultz v. United Telephone Co., 133 Kan 730 (3 P2d 506); and, generally, 97 CJS, Witnesses, § 138, p 578.

Reflective thought upon the statute leads to observation that it was purposed toward protection of an identified class of litigant parties and that the class does not include a taxing unit the claim of which is presented either against the decedent’s estate or an “assign” of the decedent. Here the claimant of the bank account is the “protected party” and the State is the “opposite party.” As was said in the venerable yet valuable work known as Perkins’ Evidence By Survivor (p 110) :

“Therefore, whenever any of the protected parties are on one side of the controversy and a person not so protected is on the other, the latter is the ‘opposite party’ and excluded as a witness; but under such circumstances the statute does not prohibit the representative or the other persons protected from either testifying or calling interested witnesses to testify in their behalf. They are not opposite parties. Besides, the amendment is for their protection.”

The author (Judge Perkins) states a presently worthy conclusion on page 122. Having identified his subject as being “Those cases wherein the heirs, assigns, devisees, legatees, or representatives, any one or more of them, are upon one side of the controversy and third-party claimants — that is, strangers to the estate — are upon the other,” he goes on. to say:

“Here the statute has its full force and effect in. excluding as witnesses all third-party claimants as-to any matter which, if true, was equally within the knowledge of the deceased. But, obviously, when the parties are so situated, the statute does not exclude the protected parties themselves from testifying in their own behalf or from calling other witnesses for that purpose. It applies only and is strictly confined to ‘opposite’ parties in interest, and not to those for whose benefit it was passed; and third-party claimants generally are such ‘oppositer parties.”

For the benefit of the profession generally we-refer to Fojtik v. Lawson, 303 Mich 568 and to the comment upon our dead man’s statute which appears at page 571 of the report.

* It is time to say again that:

“The courts, particularly in recent years, have-shown no disposition to extend the scope of the statute by strict construction. In fact, textbook writers have questioned whether the statute-has not a tendency to cause more injustice than it prevents, and whether under certain circumstances, with proper-warning, such evidence should not be received.”

The fact that Mrs. Ward will now become a competent witness by no means decides the controversy below. We apprehend that such of her testimony as may be found admissible — as against other possible objections — will be duly weighed and considered, along with the statutory presumption on which the State relies and such other proof as may be submitted and received, as the circuit court proceeds to determine the ultimate issue — whether the joint account was created by the decedent in contemplation of death.

Reversed and remanded for further proceedings in accord with this opinion. No costs.

Dethmers, C. J., and Carr, Kelly, Smith, Edwards, and Voelker, JJ., concurred. Kavanagh, J., took no part in the decision of this case.

For similar comment, see extended discussion in the American Law Institute’s Model Code Of Evidence, commencing on page 92; 2 Wig-more on Evidence (3d ed), § 578, pp 695-698; 1 Morgan, Basie Problems of Evidence, pp 84, 85.