WILL WALLACE AND BEATRICE WALLACE, HIS WIFE, JOINTLY AND SEVERALLY, APPELLANTS,
v.
MATTIE LOU GILBERT, AS ADMINISTRATRIX OF THE ESTATE OF GOUVENOR LEE GILBERT, DECEASED, APPELLEE
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The court reversed a trial court's premature order excluding evidence under Florida's Deadman's Statute, holding that while the statute may apply to bar certain testimony by parties interested in the estate, the exclusion must be determined after proper argument and consideration of waiver possibilities.
The trial court's order was premature. The Deadman's Statute can be waived, and the admissibility of the evidence in question depends on matters not established on the record. Counsel must have opportunity to argue the issue, and the court must retain the parties' rights to introduce admissible evidence.
[1] A trial court's order barring testimony under the Deadman's Statute is premature when issued before the parties have had an opportunity for argument and to present admiss…
[2] The Deadman's Statute can be waived by the parties.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The order was premature. The Deadman's Statute can be waived.”
Establishes the key holding that the trial court acted prematurely in excluding evidence and that the statute is not absolute.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe administrator of Gouvenor Lee Gilbert's estate sued the Wallaces to recover several thousand dollars allegedly loaned by the deceased. The lower c…
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The complaint alleges that plaintiff’s decedent loaned several thousand dollars to defendants and was given legally inadequate evidence of the loan, when he had been led to believe that he had a valid note and mortgage.
Prior to trial, on the court’s own motion, the order appealed from was entered. It states that “the Court hereby rules that the Defendants, and all persons interested in this case, will not be allowed to testify to any of the dealings with the Deceased, with the exception of testifying whether or not they ever borrowed any money from the Deceased. They will not be allowed to testify that this money, if any, was borrowed so long ago that the Statute of Limitations of Florida applies; they will not be allowed to testify that the rate of interest was usurious; they will not be allowed *15to testify to any facts which would make applicable either the Doctrines of Laches or the Statute of Frauds, it affirmatively appearing from the pleadings, the style of the cause, and the facts before the Court, that Florida Statutes, Chapter 90.05, F.S. A., entitled ‘Witnesses; as affected by interest, more commonly referred to as the Deadman’s Statute,’ is applicable.”
The order was premature. The Deadman’s Statute can be waived. While anticipation of evidentiary problems which might arise at trial is admirable, counsel should have opportunity for argument and should in all events retain their rights to introduce admissible evidence. Whether evidence of the sort mentioned will be ultimately admissible depends on matters not shown of record. See Howland v. Strahan, Fla.App.3d 1969, 219 So.2d 472; cert. denied, Fla.1969, 225 So.2d 919; Security Trust Co. v. Calafonas, Fla.1953, 68 So.2d 562; Mayer v. Mayer, Fla.1951, 54 So.2d 105; Fla.Jur., Witnesses, § 124-128.
Reversed and remanded.
LILES, A. C. J., and HOBSON, J., concur.
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Cited By
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Zaglin v. Carling Dinkler, Jr., 449 So. 2d 417 (Fla. 3d DCA 1984)…laintiff will be able to prove his allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as true,” Raney v. Jimmie Diesel Corp., 362 So. 2d 997, 998 (Fla. 3d DCA 1978); see also Wallace v. Gilbert, 250 So. 2d 14 (Fla. 2d DCA 1971); and (3) each of the dismissed counts states a cause of action so as not to be subject on that ground to dismissal, much less, as occurred below, dismissal with prejudice. Accordingly, the order under review is reversed and the ca…
Authorities Cited
- Mayer v. Mayer, 54 So. 2d 105 (Fla. 1951)
- Howland v. Strahan, 219 So. 2d 472 (Fla. 3d DCA 1969)
- Sec. Tr. Co. v. Calafonas, 68 So. 2d 562 (Fla. 1953)
- Bethel v. State, 225 So. 2d 919 (Fla. 1969)
- City of Winter Park v. Shealor, 225 So. 2d 919 (Fla. 1969)