Robertson v. Hackensack Trust Co. , 1 N.J. 304 ( 1949 )

I concur in the conclusion of the majority of the Court that the complainant has failed to prove her contract by the test demanded in equity and that, even if she had, her own proofs disclose that she has failed to perform her part of the alleged contract.

I do not agree, however, with the majority in their holding that the testator's statement of September 12, 1942, which is set forth at length in the opinion of the Court, is inadmissible. The complainant appealed from the ruling of the learned Vice Chancellor admitting the statement in evidence and there is nothing in his opinion or elsewhere in the record to show that he did not use the exhibit in reaching his conclusions. The question is therefore squarely raised as to the propriety of his ruling in admitting it in evidence.

It is significant that every witness in this case except the complainant — seven for the complainant and three for the defendants — all testified to conversations with the testator, some of them as remote as 1931, and all of them casual and sketchy. The fundamental question is whether it would be sound to accept such dubious testimony, and at the same time to exclude the explicit written statement of the testator whose lips are sealed by death and whose evidence will otherwise be lost, particularly when, as in this case, most, if not all, of the facts which he alleged in his written statement are susceptible of ready and convincing refutation if they are untrue. Competent witnesses might easily be produced by the complainant to negative any untrue statement of the testator that he had paid all of the expenses of the household at Nyack, that he had given her an automobile, supplied her with the funds for two trips to California and for summer vacations at the Jersey shore, paid for her wearing apparel for ten years, and that she had never accounted for the rents she collected under a power of attorney on 342 Main Street, Hackensack, N.J., that she had called in two attorneys on her own initiative and forced him to sign a will, etc. If his statements on any one of these points were demonstrated to be untrue, the maxim, falsus in uno, falsus inomnibus would clearly be applicable to destroy the force of his entire statement. While there is not the slightest suggestion of perjury in the instant case, one does not have to have had much experience in the courts to be keenly aware of the dangers which are inherent in the situation where the best available testimony of one side is excluded by an artificial rule of evidence. Not only did the complainant have every opportunity to produce witnesses on her own behalf to refute the decedent's written statement, but here she herself should not be barred by R.S. 2:97-2 from testifying to the facts, as she would have been if the statement had not been introduced in evidence.

The entire history of the law of evidence has been marked by a continuous search for more rational rules first as to the competency of witnesses and then as to the admissibility of evidence and by and large this growth in the law of evidence has come through judicial decisions. Many types of witnesses whose testimony was formerly rejected by reason of their being parties to an action or related to parties to an action are now freely permitted to testify. Many kinds of evidence which a century ago would have been excluded under the hearsay rule are now everywhere admitted in evidence in the light of an increasingly rational consideration of the probative value of such testimony on the one hand and the opportunity to test its validity on the other hand. The sound approach is that indicated by Mr. Justice Sutherland in the well known case of Funk v. United States,290 U.S. 371, 54 S.Ct. 212, 78 L.ed. 369 (1933), in rejecting the commonlaw rule precluding a wife from testifying in favor of her husband in a criminal trial (290 U.S. 371, 381-383):

"The fundamental basis upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation to the successful development of the truth. And since experience is of all teachers the most dependable, and since experience also is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule.

"* * * That this court * * * in this situation and by right of their own powers, may decline to enforce the ancient rule of the common law under conditions as they now exist we think is not fairly open to doubt."

* * * "To concede this capacity for growth and change in the common law by drawing ``its inspiration from every fountain of justice', and at the same time to say that the courts of this country are forever bound to perpetuate such of its rules as, by every reasonable test, are found to be neither wise nor just, because we have once adopted them as suited to our situation and institutions at a particular time, is to deny to the common law in the place of its adoption a ``flexibility and capacity for growth and adaptation' which was ``the peculiar boast and excellence' of the system in the place of its origin."

The reason for recognizing a new exception to the hearsay rule dealing with a decedent's declarations was admirably stated by Dean Wigmore in drafting the report of the Committee of the American Bar Association on Improvements in the Law of Evidence:

"The hearsay rule, requiring that all testimonial assertions be subjected to the scrutiny and test of cross-examination, and therefore excluding all statements made out of court and not so tested, is a most valuable rule, being one of the great contributions of Anglo-American law for the methodical investigation of facts.

"But of course it has always had to recognize exceptions; There are a dozen or more of them, having large scope. Many or most of them are based on situations where the test of cross-examination is no longer practicable — the person being deceased or otherwise unavailable — and that therefore it is better to accept what can be got than to reject it entirely.

"The scope of these exceptions has been gradually enlarged, over the past century. And just 40 years ago (1898) the State of Massachusetts (at the instance of Professor James Bradley Thayer, known as the greatest authority on the law of evidence) undertook to make another enlargement, viz., to admit in general the declaration of a deceased person who had had personal knowledge and spoke or wrote in good faith before controversy had arisen.

"This sensible statute was later made the subject of a thorough and pragmatic inquiry by the Commonwealth Fund Committee. (TheLaw of Evidence: Some Proposals for its Reform, by Morgan, et als., Yale Univ. Press, 1927 pp. 37-49). They sent out a questionnaire to Massachusetts lawyers, seeking answers from those who had had experience with the statute. Of those who had used it (or had it used against them) in from 100 to 500 cases the answers were unanimous that it did more good than harm; of those who had had less experience with it, some 80 per cent favored it as beneficent; while of those who had had no experience with it, some two-thirds favored it. Thus, the opposing opinions were in inverse relation to experience with it.

"The Massachusetts statute has given rise to virtually no technical trouble in interpretation, and it stands today as indorsed by 40 years of trial experience. (63 Rep. Am. B.A. 584; 1938)."

It is significant to observe that this recommendation, as drafted by Dean Wigmore, received the assents of members from 30 states and from 13 law schools to one dissent. The report was unanimously adopted in 1938 by the House of Delegates and the Assembly of the American Bar Association.

In the face of the almost unanimous approval by the judges and lawyers in Massachusetts after they had had an opportunity to observe the merits and defects in the operation of its liberalized rule for nearly half a century, and the reports and recommendations of our foremost authorities on the law of evidence, as well as our leading judges and lawyers, vigorously urging the general adoption of the Massachusetts rule, and in some instances the extension of the rule, it would seem unfortunate were we to reaffirm and carry on the obviously outmoded and circumscribed rationale of res gestae to test the admissibility of a decedent's declarations. At the very least, we may safely adopt the Massachusetts rule, encompassing as it does all necessary safeguards required for the reception of evidence of this type.

As has been so aptly stated:

"The needless obstruction to investigation of truth caused by the Hearsay rule is due mainly to the inflexibility of its exceptions, to the rigidly technical construction of those exceptions by the courts, and to the enforcement of the rule when its contravention would do no harm, but would assist in obtaining a complete understanding of the transaction.

"The next and needed step in the liberalization of the Rule is the adoption of the general exception for all statements ofdeceased persons; leaving the application of the rule to thetrial court." (5 Wigmore on Evidence (3rd ed. 1940 p. 1427.)

To sustain the admission in evidence of the statements in question, it is not necessary for us to go as far as the ModelCode of Evidence of the American Law Institute (1942):

"Rule 503. Evidence of a hearsay declaration is admissible if the judge finds that the declarant (a) is unavailable as a witness, or (b) is present and subject to cross-examination."

In support of its rule the Institute has this comment:

"That a reported statement of a person who has perceived an event is ordinarily of less value than his testimony concerning it, given under oath and subject to cross-examination, no one will deny. If the report comes by a devious route, suspicion as to its value is increased. The validity of these truths is recognized in these Rules; they require that in most instances the declarant be produced as a witness if he is available. But these Rules do not, as the decisions do not, proceed on the assumption that hearsay is worthless; and they do recognize the undoubted fact that the common law rules, as evolved and developed in our many jurisdictions, have become so refined and complex as to require a complete and radical re-examination * * * (p. 217)

"The fact is, then, that the law governing hearsay today is a conglomeration of inconsistencies, developed as a result of conflicting theories. Refinements and qualifications within the exceptions only add to its irrationality. The courts by multiplying exceptions reveal their conviction that relevant hearsay evidence normally has real probative value, and is capable of valuation by a jury as well as by other triers of fact. This is further demonstrated by the majority view that inadmissible hearsay received without objection may be sufficient to sustain a verdict. Most statutes regulating procedure before administrative tribunals made hearsay admissible. And it is by no means clear that the administrative official ordinarily presiding at a hearing has more competence to value testimony than has a jury acting under the supervision of a judge. The number of cases tried before juries, as compared with the number tried before judges without juries and before administrative tribunals, is small indeed; and to make general rules based on a questionable distrust of the jury seems unwise. Consequently, these Rules greatly liberalize the common law." (pp. 223-224).

The Model Code of Evidence prepared by a distinguished committee of thirteen jurists and professors under the chairmanship of Professor Edmund M. Morgan of Harvard, with the aid of an equally distinguished group of 68 consultants drawn from the bench and the list of active practitioners at the bar and approved by the entire membership of the American Law Institute, is an authority that should be given attention in adapting the law of evidence to the needs of the times. See, In re Petagno, 24 N.J. Misc. 279(Ch. 1946) where Advisory Master Van Winkle, in an appropriate case, urges and sets forth strong reasons for the early adoption by our courts of this rule.

The problem was presented as early as 1862 in the case ofSpeer v. Speer, 14 N.J. Eq. 240 (Ch. 1862). The question there involved was whether a conveyance made by a decedent during his lifetime to his son was a gift by way of advancement or as compensation for services allegedly rendered by the son. Chancellor Green held that statements by the decedent, both contemporaneous with the conveyance and on various occasions subsequent thereto, were admissible in evidence to show the intent with which the conveyance was made by the decedent (14 N.J. Eq. 240, 248-249):

"It is further urged that the declarations of the father are incompetent evidence to prove an advancement. Where the declarations of the father are made at the time of the transaction they are clearly admissible as a part of the resgestae. Nor do I perceive any legal objection to declarations subsequently made. The declarations of the grantor subsequent to the date of the conveyance, to show fraud, or otherwise to invalidate the title of the grantee, are clearly incompetent. But as before said, the design of the evidence is not to impeach the title of the grantee. It is not offered to prove that the deed is fraudulent or inoperative, but to show the purpose or intent with which the deed was made by the ancestor to avoid injustice and effect an equality as between the co-heirs. Advancement is a question of intent, and may be shown by the declarations of the parent or the admissions of the child."

In later New Jersey cases oral or written declarations of a decedent, not otherwise qualifying under one of the then recognized exceptions to the hearsay rule, have been admitted in evidence where the intent or purpose with which a particular act was done by the decedent is a material inquiry and the declarations in question were contemporaneous with the doing of the act. A leading case is Hunter v. State, 40 N.J.L. 495(E. A. 1878), a murder case, where it was necessary for the prosecution to establish the presence of the victim with the accused. It was there held, in an opinion by Mr. Chief Justice Beasley, that oral statements made by the victim on the morning of the murder to the effect that he was going to Camden with the accused that night were admissible "on the single ground that they were the natural and inartificial concomitants of a probable act (going to Camden), which itself was a part of the resgestae." (40 N.J.L. 495, 540.)

In Kelly v. Pitney, 98 N.J.L. 773 (E. A. 1923), a written declaration of a decedent was admitted on the authority of the Hunter case. There decedent had bequeathed a gift to the plaintiff, a domestic, provided she was living and in the employ of the decedent at the time of his death. Some five years after executing his will the decedent closed his home and went to live at the Essex Club, where he resided until his death. On the very day he closed his home the decedent wrote out and signed a statement on the envelope containing his will to the effect that the plaintiff had that day left his employ. The plaintiff sued to recover the legacy, and it was held that the written declaration of the decedent "was properly admitted to show with what intent and purposes he acted in paying off the plaintiff, closing his house, and moving elsewhere that day." The court set forth the rule in these words (98 N.J.L. 773, 778):

"Where, as here, the state of mind or intent with which any particular act is done is a relevant fact and the subject of inquiry, declarations made by the person who does the act, and accompanying the act, and which illustrate or explain its character, are a part of the res gestae, and are admissible in evidence."

Here, as in the Hunter case, the holding was one of necessity; it stretches the scope of the none too elastic doctrine of resgestae, the only exception to the hearsay rule then believed available to permit the admission of the evidence there in question.

The exhibit in question in the instant case might well be admitted on the authority of the cases herein cited as an exception to the hearsay rule under the res gestae doctrine as showing the state of mind of the testator in refusing the complainant's invitation to him to move to Cincinnati with her and her husband. But Wigmore has pointed out the difficulties which the application of the res gestae doctrine has caused in excluding evidence and in admitting it (6 Wigmore on Evidence § 1726(2)):

"In a number of precedents sundry declarations of intention (to make a journey, to pay money, or the like) have been excluded, usually without any other apparent reason than the supposed application of the ``res gestae' doctrine (post, § 1772).

"That doctrine, indeed, has also in some of the rulings admitting this evidence (ante, § 1725) been taken as the source of admissibility. It would be well if the invocation of the ``resgestae' doctrine in this connection could be wholly abandoned.The simple and sufficient reason for admission is the HearsayException receiving statements of an existing mental condition. Whether these accompany some conduct relevant in the litigation, or any movement or ``act', is wholly immaterial. The labor shown in certain judicial opinions to discover some ``act' of which the declarations ``are a part' is wasted; such speculations serve only to confuse an otherwise simple situation. For example, Doe is said to have been killed on Friday at Millville; to show that he was there on Friday, a design on Thursday to go there on Friday is relevant (ante, § 102). His declaration on Thursday of such a design, if made under circumstances of naturalness, is admissible; and it cannot make any difference whether, as in the Herrick case (ante, § 1725), he uttered it in the ``act' of leaving the house, or whether as he sat reading the paper, he said to his wife, ``I see that Roe in Millville has failed; I shall go down there the first thing tomorrow morning.' The departure from the house is no more a material ``act' in the case than the reading of the newspaper; it might as well be argued that, if he wiped his forehead and said, ``it is so hot that I shall run down to the seaside tomorrow,' the wiping of his forehead was an ``act' which his declaration characterized. An examination of the doctrine of Verbal Acts (post, § 1772) will show that its correct application gives no sanction to its use in the present connection. The sooner this doctrine is left to its own legitimate sphere, the better. Its invocation to determine the admissibility of declarations of design or plan serves only to confuse a simple question, and to narrow a broad and useful rule."

The Hunter case is appropriately cited by Wigmore as authority not for the res gestae rule, but for the exception to the hearsay rule, just alluded to. Thus, on a proper analysis the cases in the court of last resort in New Jersey, as Wigmore has so clearly shown, are not to be justified under the res gestae rule but by the exception to the hearsay rule as to declarations of an existing state of mind.

It will serve no useful purpose to analyze all of the New Jersey cases cited in the majority opinion. They either involve the correct application of the res gestae rule and as such are beyond criticism, or they follow the lead of the Hunter case in applying the res gestae rule in situations where, as Wigmore has so clearly shown, the res gestae rule has no proper application.

In the present case we are concerned with a written document signed by the decedent, and we have no occasion now to go beyond its requirements. An analysis of the decisions in our State herein referred to furnishes us ample authority for the admission of the statement in question under the exception to the hearsay rule receiving statements of an existing state of mind and accords with the trend of modern scholarship in this field. It is for the trial court to decide preliminarily that the writing was made in good faith before the beginning of the suit and upon the personal knowledge of the declarant. It is likewise for him to determine what weight is to be given to it, when sitting as a trier of the facts, and to give appropriate instructions thereon, where there is a jury. I am of the opinion that the document in question was properly admitted in evidence.

I am authorized by Mr. Justice WACHENFELD to state that he joins in this opinion.

For affirmance: Chief Justice VANDERBILT, and Justices CASE, HEHER, WACHENFELD, BURLING and ACKERSON — 6.

For reversal: None.