Document Type



Some Observations on the Law of Evidence -- State of Mind to Prove an Act (with Robert M. Hutchins), 38 Yale Law Journal 283 (1929)


Since Sugden v. St. Leonards I there has been a broad tendency
in this country to admit any statements of the testator made at
any time on ahy point relating to the execution, revocation, or
contents of the wil. 2 Whatever may have been the limiting effect
of later English decisions,3 the American courts have in
general adhered to that doctrine and have accepted all its implications.
With the exception of a few jurisdictions impressed
by the res gestae requirement, 4 the philosophy of which in thisconnection is expounded in such cases as Throckmorton v. Holt 6
and Matter of Kennedy, our states have apparently taken the
view that since the person who knows most about the will is
dead, and since others are nof likely to be aware of his plans,
everything the testator said even remotely affecting those plans
may be admitted. Some courts insist that the evidence is admissible
only in corroboration of other evidence.' But the usual
rule seems to be unqualified. Prior, contemporaneous, or subsequent
utterances of the testator are admissible to show his
state of mind at the time of speaking, from which is inferred his
accomplishment of an act in accordance therewith.

Date of Authorship for this Version



law, state of mind, evidence, hearsay, wills