Dead man's statute. SCOVT reverses exclusion of evidence and remands to determine whether decedent made an enforceable promise.

Hayes  v. Town of Manchester Water & Sewer Boards 2014 VT 126 (21-Nov-2014)

ROBINSON, J. This case involves the proper application of the dead man’s statutes, 12 V.S.A. §§ 1602-1603. Developers of a residential subdivision died, triggering various claims by and against their estates relating to the estates’ responsibilities for the subdivision’s private roadway, water, and sewer infrastructure. A group of homeowners appeals the trial court’s denial of their request for a ruling that the estates have a legal obligation to dedicate the infrastructure to the Town and, until that happens, to maintain the infrastructure at their expense. We reverse the court’s denial of the homeowners’ request for a ruling on their claims, and remand for reconsideration of those claims based on the evidence, including evidence that the trial court previously excluded under the dead man’s statute, to determine whether an enforceable promise was made concerning maintenance of the infrastructure pending its dedication to the Town.

In essence, the dead man’s statutes restrict testimony concerning an alleged contract with a person who is no longer living unless certain listed exceptions apply, including when the testimony is presented to meet or explain the testimony of living witnesses. Section 1602 precludes a party from testifying in his or her own favor when the other party to the contract is dead, Section § 1603 precludes a party to the lawsuit from testifying in his or her own favor when an executor or an administrator is a party.

In this case the dispute is between the co-administrators of the estates and the homeowners who allege that they had a contract with the decedents. The superior court’s reliance on the dead man’s statutes to exclude testimony by either of the co-administrators was erroneous for two reasons: neither of the co-administrators was a party to the alleged contracts and neither of them testified in their own favor. In re Estate of Maggio, 2012 VT 99, ¶ 19., 193 Vt. 1, 71 A.3d 1130.

We also conclude that the superior court erred by excluding testimony concerning statements decedent made to them about maintaining and dedicating the subdivision’s infrastructure. This testimony fits within the statutory exception of testimony made “to meet or explain the testimony of living witnesses produced against them”—in this case, the co-administrators. 12 V.S.A. § 1603. Although the co-administrators’ testimony noted above was not made in their favor, their testimony could be construed as establishing the full extent to which promises were made to the homeowners. Once the co-administrators broached the subject of promises made to the homeowners in their testimony, the homeowners had the right to meet or explain the nature and extent of those promises.