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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 any point relating to the execution, revocation, or contents of the wil. Whatever may have been the limiting effect of later English decisions, 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, the philosophy of which in this connection 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.

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