HARRY ROSENBERG ET AL., APPELLANTS,
v.
BOSTON CORPORATION, A FLORIDA CORPORATION, APPELLEE
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The Florida District Court of Appeal reversed a trial court judgment involving a constructive trust claim because the trial court improperly allowed testimony from witnesses barred by Florida's dead man statute. The court held that without this inadmissible testimony, the appellee failed to meet its burden of proof.
The court held that the Sultans were barred from testifying under the dead man statute as stockholders, and Rosenberg was similarly barred because he did not participate in the transactions to an extent indicating knowledge of the circumstances. The exceptions to the statute did not apply. Without this inadmissible testimony, the appellee failed to prove a constructive trust to the exclusion of every reasonable doubt.
[1] A witness who is a stockholder in a corporation is barred by the dead man statute from testifying as to any transaction or communication with a decedent.
[2] A co-lessee with a decedent, who signed papers as a corporate officer, may be barred by the dead man statute if their participation in the transactions indicates knowledg…
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Join FLexlaw to unlock all legal intelligence“As stockholders in the appellee corporation they were barred by § 90.-05, F.S. 1973, from testifying as to any transaction or communication with the decedent, Salame.”
Establishes that the Sultans were barred from testifying under the dead man statute based on their stockholder status.
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Join FLexlaw to unlock all legal intelligenceLeon and Fred Sultan were stockholders in the appellee corporation who testified about transactions and communications with the decedent, Salame. Harr…
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We have reviewed the entire record in this case, as well as the briefs of counsel, and hold that appellants’ points II and III require reversal of the final judgment.
A significant part of the evidence upon which the trial court rendered its judgment was furnished by Leon and Fred Sultan. As stockholders in the appel-lee corporation they were barred by § 90.-05, F.S. 1973, from testifying as to any transaction or communication with the decedent, Salame. We also believe that Rosenberg was likewise barred from testifying by the dead man statute even though he was a co-lessee with the decedent and had signed numerous papers as a corporate officer. If he had participated in the transactions to an extent. indicating knowledge of the circumstances he would not be barred by the statute because of the exceptions set forth in Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932). However, this record demonstrates that Rosenberg did not participate in the transactions in question to the extent that he was familiar with circumstances so as to preclude application of the dead man statute. Thus, the rule laid down in Harris v. Bank of Jacksonville, 22 Fla. 501, 1 So. 140 (1886), applies, and the personal representative has the protection of the statute.
While we do not decide whether appellee successfully carried its heavy burden of proof as the record now stands, we are convinced that without the inadmissible testimony of the Sultans and Rosenberg appellee did not prove a constructive trust to the exclusion of every reasonable doubt, the criterion for the burden of proof in such cases. Smith v. Smith, Fla.1959, 108 So. 2d 761.
Accordingly, the final judgment is reversed and the cause is remanded for a new trial.
MAGER and DOWNEY, JJ., concur. OWEN, C. J., dissents without opinion.
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Citator
Authorities Cited
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- Harris v. The Bank of Jacksonville & Maxfield & Co., 22 Fla. 501 (Fla. 1886)
- Smith v. Smith, 108 So. 2d 761 (Fla. 1959)