8.4 A “Transaction” for Purposes of the Statute
The dead man’s statute precludes testimony “concerning any transaction with or statement they made by the dead or incompetent person.” The test for determining whether there has been a “transaction” within the meaning of the dead man’s statute is whether the deceased, if living, could contradict the assertion by his own knowledge. In Boyd v. Bowen, 145 Md. App. 635, 806 A.2d 314 (2002) one part of the lawsuit was whether money paid by a third party to a lawyer to facilitate the decedent’s new will constituted a “transaction” between the third party and the decedent. The Court held that it was such a transaction:
The appellant maintains she was not a party to the transaction because the transaction was solely between Mr. Arch and Mrs. Cole. Admittedly, the professional relationship being established at the meeting was between Mr. Arch and Mrs. Cole, and did not include the appellant. The term “transaction” as used in the dead man’s statute, however, has a broader meaning than it might in other situations. Mrs. Cole, if alive, could, based on personal knowledge, contradict the appellant’s testimony on the issue of reimbursement of the legal fees. Accordingly, the meeting was a “transaction with” the decedent, and the trial court properly precluded the appellant’s testimony on the matter.
The dead man’s statute expressly prohibited the appellant from testifying about anything Mrs. Cole may have said to indicate her intention to reimburse the appellant.
Further, the appellant could not testify that she paid Mrs. Cole’s legal fees because she “understood” that she would be reimbursed at some point in the future.
The documents themselves, however, can be introduced into evidence but not testimony that links the documents to a “transaction” or other arrangement between the party and the decedent. The Court of Appeals in Stacy v. Burke, 259 Md. 390 (1970), on the other hand, permitted the nephew/claimant to identify and introduce two critical letters sent to him by the uncle/decedent, regardless of the Dead Man’s Statute. In that case, the Court made certain important distinctions:
- “The statute does not make the party in an action to which the statute applied incompetent as a witness for all purposes but only in regard to ‘any transaction had with or statement made by’ the decedent.
- Although the letters permitted to be introduced by the nephew/claimant, in fact, related directly to the transaction, the introduction of these documents “was not testifying in regard to any transaction had with or statement made by Uncle Erle.”
This was despite the fact that those very letters had to do with the “transaction” in question.
Likewise, in Ridgely v. Beatty, 222 Md. 76 (1960), checks and payments by the son-in-law/claimant were admissible by him because those checks and payments were not a “transaction” with the mother-in-law/decedent. This was despite the fact that those very checks and payments were the proof of his support of the decedent (the disputed contention in that case). In Ridgely, the distinction was made between permitting the introduction of documents versus the introduction of testimony as to what the “agreement or understanding” was between the claimant and the decedent about those payments:
“In the instant case the claimant, over the objection of the executor, was allowed to testify as to some sixty checks given by the claimant to third persons during the period of time when he and his family resided with the decedent. The checks represented payments which had been made on the mortgage and expenditures for coal, electricity, telephone, taxes, legal expenses and hospital bills. The court permitted the clamant to identify each check, describe it and to state the item for which the check was given, but it would not permit him to connect such payments with any ‘agreement or understanding or transaction’ the claimant had with the decedent.”