19 AMJUR TRIALS On Suing A Decedants Estate

19 AMJUR TRIALS 1 Page 1
19 Am. Jur. Trials 1 (Originally published in 1972)
American Jurisprudence Trials
Database updated April 2010
Actions by or Against a Decedent's Estate
Daniel F. Carmack[*]
ARTICLE OUTLINE
I Introduction and Background

A Generally
§ 1 In general
§ 2 Scope
§ 3 Definitions
§ 4 Types of actions involving a decedent's estate
§ 5 Fact situations giving rise to action
§ 6 Objectives of the parties
B Effect on Action of "Dead Man" Statute
§ 7 In general
§ 8 Actions to which statute applies
§ 9 Testimony barred by statute
§ 10 Testimony not barred
§ 11 Waiver of statute
II Client Interview
§ 12 In general; interview checklist
§ 13 Evaluating the client
§ 14 Fees and charges
§ 14.5 Attorneys' fees chargeable to estate
III Presenting Claims Against Estate; Time Limitations For Prosecution
A Presentation of Claims
§ 15 In general
§ 16 Requirements of nonclaim statute
§ 17 Utilizing available probate court procedures
§ 18 Inspecting fiduciary's administration of estate
B Time Limitations for Prosecuting Claim
§ 19 In general; effect of statute of limitations and nonclaim statute
§ 20 Waiver of statute of limitations by the fiduciary
IV Locating, Interviewing, and Selecting Witnesses
A Locating and Interviewing Witnesses, Generally
§ 21 In general
§ 22 Locating witnesses—for claimant
§ 23 Locating witnesses—For fiduciary
§ 24 Interviewing witnesses
B Expert and Lay Opinion Witnesses
§ 25 In general
§ 26 Selection
V Documentary Evidence
§ 27 In general
VI Selecting the Remedy
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

§ 28 In general; actions available to claimant
§ 28.5 Challenging qualifications of estate fiduciary
§ 29 Actions available to fiduciary
§ 30 Arbitration of claims
VII Selecting the Forum; Venue
§ 31 In general; jurisdictions in which action can be brought
§ 32 Venue
§ 33 Instituting action in federal court
VIII Pleadings
§ 34 Complaint—Action for value of services
§ 35 Complaint—Action for partnership accounting
§ 36 Answer—Action for value of services
§ 37 Answer—Action for partnership accounting
§ 38 Motions and demurrers
IX Settlement
§ 39 In general
§ 40 Procedure and tactics
§ 41 Illustrative settlement
X Discovery
§ 42 Interrogatories and depositions—Parties
§ 43 Interrogatories and depositions—Witnesses
§ 44 Motions for production and inspection
XI Trial Preparation
§ 45 Planning plaintiff's case—action for personal services
§ 46 Planning plaintiff's case—Action for partnership accounting
§ 47 Planning the defense—Action for personal services
§ 48 Planning the defense—Action for partnership accounting
§ 49 Planning a rebuttal
§ 50 Preparing the record
§ 51 Trial briefs
§ 52 Advisability of jury trial
XII Pretrial Conference
§ 53 In general
§ 54 Clarifying the issues
§ 55 Stipulating admissibility of documents
§ 56 Final settlement efforts
XIII Trial
§ 57 Selecting the jury
§ 58 Opening statement—of plaintiff in action for personal services
§ 59 Opening statement—Of defendant in action for personal services
§ 60 Opening statement—Of plaintiff and defendant in action for partnership accounting
§ 61 Presentation of plaintiff's case—Action for personal services
§ 62 Presentation of plaintiff's case—Illustrative presentation
§ 63 Presentation of plaintiff's case—Action for partnership accounting
§ 64 Presentation of defendant's case—Action for personal services
§ 65 Summation in action for personal services—Plaintiff
§ 66 Summation in action for personal services—Defendant
§ 67 Preparation of proposed findings of fact and brief on the law in an accounting suit
Research References
I. Introduction and Background
A. Generally
§ 1. In general
[Cumulative Supplement]
The problems involved in handling litigation, either for or against a decedent's estate, confront lawyers engaged in all
forms of advocacy, not merely those specializing in probate practice. They concern as well lawyers who maintain a business
practice exclusively, because, quite obviously, a lawyer who represents business organizations, including partnerships and
close corporations, may eventually need to determine the proper method of settling partnership accounts upon the death of a
partner, or to effect the transfer of the interest of a deceased stockholder to the survivor or survivors.
Many lawsuits involving large sums of money or property of substantial value lend themselves to a division of labor
between the business-probate lawyer and the trial advocate. Quite often, however, the small size of the stake in the
controversy makes such a division economically unfeasible. Consequently, the lawyer engaged in general practice must also
familiarize himself with the statutes and procedure relating to the administration of a decedent's estate if he is to represent
properly a client who has a claim against, or who is indebted to, a decedent.
Litigation involving a decedent's estate is, therefore, a type of law practice common to practitioners in all fields, and this
article is designed primarily to aid the general practitioner.
CUMULATIVE SUPPLEMENT
Editor's Comment:
See also Will Contests, 96 Am. Jur. Trials 343.
Cases:
Decedent's general personal representative, rather than her literary personal representative, had authority to make
decisions regarding out-of-state will contest, involving both literary and non-literary rights, which was pending at time of
decedent's death, where codicil appointing literary personal representative gave him control over literary rights that decedent
owned or would come to own, but did not expressly give him authority to pursue rights over other literary works, and
obtaining control of literary rights was not direct cause of action being pursued in will contest. NMSA 1978, § 45-1-102.
Estate of Kerouac, 1998-NMCA-159, 966 P.2d 191 (N.M. Ct. App. 1998), cert. granted, (Oct. 28, 1998).
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§ 2. Scope
It is proposed in the present article to discuss generally the problems encountered in litigation when one of the parties to
an action is deceased. However, since it is not feasible to cover in detail all possible actions that might be brought by or
against a decedent's estate, emphasis will be placed on problems that are common to such actions. Therefore, reference
should be made to other articles in this series for a consideration of strategy and tactics in particular factual situations.[1]
There are, of course, certain types of litigation that by definition involve a decedent's estate, or at least involve his

fiduciary as a nominal party, some of which are also treated elsewhere in this series, for example, will contests,[2] and
wrongful death actions.[3] Other actions, with which this article is similarly not concerned, include one for declaration of the
rights of persons interested as beneficiaries in a decedent's estate,[4] and one for abatement or revival of existing litigation
after the death of one of the original parties. However, if in the latter case, the action does not abate or it is successfully
revived, and a trial ensues, problems similar to those discussed herein may arise.
To illustrate the problems that may be encountered when a decedent's estate is a party, particular attention will be given
to two kinds of litigation, which together seem to involve most of the problems: (1) actions at law for personal services, and
(2) partnership accounting suits that would ordinarily invoke the chancery powers of the court.
The death of a party almost always results in the interposition of preliminary technicalities of administration that are not
present in ordinary lawsuits. These technicalities vary from jurisdiction to jurisdiction, and it is not possible in an article of
this length to treat them with any particularity. However, reference to certain general trends in the law is necessary and will
be made herein in order to cover the subject adequately.
§ 3. Definitions
Certain terms will be used in this article to describe the parties involved in the types of litigation with which the article is
concerned. Definitions of the most important of these terms are provided in the paragraphs that follow.
In this regard, it will be noted that a decedent's estate cannot sue or be sued except in the name of the personal
representative of the decedent, that is, the executor or administrator.[5] However, to avoid continual repetition of the phrases
"personal representative" or "executor or administrator," the discussion shall use the all-inclusive word "fiduciary." It should,
therefore, be understood that, while the term "fiduciary" includes trustees of testamentary and inter vivos trusts, trustees in
bankruptcy, guardians, creditors' committees, agents, and many other categories of persons who represent others, it will, in
this article, refer exclusively to executors and administrators.
The fiduciary's opponent will frequently be referred to as "the survivor," to indicate a party who had transactions with a
person who has since died. The word "claimant" will also be used when appropriate, as when a claim for personal services is
involved. However, that term is obviously unsuitable when a fiduciary is the plaintiff in the litigation, and it is of
questionable accuracy in describing either (or any) of the parties to a partnership accounting involving a decedent's estate.
Moreover, the word "claimant" does not seem at all useful when discussing the "dead man" statute.[6]
§ 4. Types of actions involving a decedent's estate
It must be emphasized that the administration of a decedent's estate is in part a liquidation proceeding for the benefit of
the decedent's creditors, who have a claim to the assets of his estate for the satisfaction of the debts owing to them that
precedes any claims by the beneficiaries.[7] Indeed, in some states, if there are no debts, or if decedent's successors are able
and undertake to pay creditors, they are permitted to take possession of the property without administration.[8]
Since a decedent's creditors occupy a priority status with respect to the assets of his estate, a lawyer representing the
fiduciary administering the estate should remember that his client owes a duty to those who present claims. Claims should
never be denied out of hand. The lawyer should also remember that the purpose of administration statutes is to complete the
administration proceeding as expeditiously as possible. Litigation is always time-consuming and should therefore be avoided
if at all possible.
The legal elements of an action for personal services are (1) performance of the services, (2) with the expectation of
receiving pay, and (3) at the request of the party for whom the services are performed, or acceptance of the benefits of the
services by the recipient under circumstances indicating an intention to pay for them in some way.[9] The law will not aid a
volunteer nor, unless the agreement was express,[10] will it grant relief to one whose relationship to the recipient would
require the inference that the services were performed out of a sense of duty.
While, in the case of the action for services, the decedent's estate will almost always, if not always, be the defendant, the
estate may be either the plaintiff or the defendant in a partnership accounting suit. The factual elements that must ordinarily
be established in a partnership accounting suit are (1) the existence of a partnership, (2) the terms of the partnership contract,
(3) a demand for an accounting, (4) a refusal to give an accounting, or the making of a defective accounting, and (5)
possession by the defendant of all or a part of the partnership assets.
In most cases, it could be supposed that the surviving partner or partners would remain in possession of the partnership
assets upon the death of a partner, so that the estate would be the plaintiff. However, this is not necessarily true, for if the
deceased partner was the active partner, the others being merely investors or silent partners, or if there was merely the
appearance of a partnership, the business being actually a sole proprietorship of the decedent, his estate will probably have
custody of the business assets.
Whether the decedent's estate is plaintiff or defendant, the controversy usually results from the conviction of the party
out of possession that he has not been accorded a just share of the profits or assets of the business.
Cases:
Authority to act for estate: Under New York law, decedent's nephew was not liable for breach of oral contract pursuant
to which appraiser sought payment for services rendered in assessing items of personal property of decedent's estate, after
estate's executor informed him that services were no longer needed; even though decedent's nephew initially contacted
appraiser for purpose of possibly retaining him to evaluate items of estate's property, was son of estate's executors, and
allegedly represented that he was acting on behalf of estate's executors, existence of estate as principal was disclosed, and
there was no evidence that decedent's nephew possessed power to bind estate, that he represented such power to appraiser, or
that he intended to be personally bound by contract between estate and appraiser. Melnitzky v. Rose, 299 F. Supp. 2d 219
(S.D. N.Y. 2004); West's Key Number Digest, Limitation of Actions 216(1).
The executor or administrator of an estate occupies a fiduciary relationship in respect to all parties having an interest in the
estate including heirs, beneficiaries under the will, and creditors, and, as a fiduciary, has the duty towards these parties to
protect their legal rights in the estate. Hecht v. Superior Court (1993) 16 Cal App 4th 836, 20 Cal Rptr 2d 275, 93 CDOS
4531, 93 Daily Journal DAR 7656.
Generally, a judgment cannot be rendered for or against a decedent or the personal representative of a decedent's estate until
the personal representative has been made a party; however, that rule has not been followed blindly, but only to prevent
prejudice to the parties. Thus, in an action by the purchaser of a home against the sellers, the realtor, and the realtor's
salespersons for fraud, misrepresentation, breach of fiduciary duty, breach of contract, negligence, and intentional infliction
of mental distress, any error the trial court committed in entering summary judgment in favor of one of the salespersons after
his death was harmless, since none of the parties were prejudiced by the untimely death. Plaintiff had a full opportunity to
present evidence in opposition to the motion, choosing not to do so for reasons wholly unrelated to the death. The death was
not disclosed by any of the parties, thus giving the trial judge no occasion to consider it. Moreover, assuming the salesperson
left an estate of any substance, the estate could not have been prejudiced by a judgment of dismissal in the salesperson's
favor. Sacks v. FSR Brokerage, Inc. (1992, 2nd Dist) 7 Cal App 4th 950, 9 Cal Rptr 2d 306, 92 Daily Journal DAR 8844.
In action by children of decedent's daughter arising out of alleged improprieties of decedent's son in handling decedent's
property, court erred in dismissing complaint with prejudice where it alleged facts that could support claim for wrongful

interference with testamentary expectancy; complaint alleged that decedent had prepared will leaving all her assets to her son
and daughter in equal shares, with their shares to go to their issue if either predeceased decedent, that daughter had managed
decedent's property until daughter became ill, that son had then taken over and had transferred all or great majority of assets
to himself, to himself and decedent jointly, or to third parties, and that after decedent's death, son refused to probate will,
claiming he owned all of decedent's assets; court should have allowed children of daughter to amend their complaint, even
though it had inartfully requested probate of will while maintaining that decedent had desired her assets to pass outside of
probate. Henshall v. Lowe (1995, Fla App D2) 657 So 2d 6, 20 FLW D 1046.
The trial court erred in dismissing an action without leave to amend, where a person injured while testing a circular saw being
sold on behalf of the estate filed a tort action against the personal representative of the estate, and the action was dismissed
without leave to amend on the ground that the representative could only be personally liable for the acts alleged in the
complaint, because the estate could be liable for the tort of its personal representative, provided the tort was committed in the
course of estate administration. Schumann v. Weathers (1994, Fla App D5) 643 So 2d 690, 19 FLW D 2181.
The following four elements are required to establish equitable jurisdiction for accounting: (1) need for discovery; (2)
complicated nature of accounts; (3) existence of fiduciary or trust relationship; and (4) inadequacy of legal remedies; of
these, existence of fiduciary relationship is most critical element. Shaner v. System Integrators, Inc., 63 S.W.3d 674 (Mo. Ct.
App. E.D. 2001); West's Key Number Digest, Account 1.
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§ 5. Fact situations giving rise to action
Although the immediate cause of an action to recover for personal services or for a partnership accounting involving a
decedent's estate cannot always be said to be the death of one of the parties, death of a party is frequently the moving cause of
the litigation. It removes the person upon whom someone else may have placed reliance, and vests control of the decedent's
business interests or property in another person or in a group of persons whose attitude towards the survivor may be
unconcerned or even hostile. The employee or associate of the decedent can no longer look toward an ultimate partnership
with him; even if a partnership existed, the death of a partner dissolves it.[11] Following the death of the promisor, the person
who performed services for him may now discover that there is no will, or, if there is a will, that it does not name him as a
beneficiary.
Quite often, such actions grow out of legitimate transactions; an old person is sick and feeble and needs physical help in
performing the ordinary functions of daily life. He has no relatives who are close to him, so he asks a neighbor or a friend for
help, or actually employs a fulltime housekeeper. Typically, the employer or recipient is a person who has only a modest
amount of cash at his disposal, or is, at least, one whose spending habits are close; otherwise, it could be expected that he
would pay for the services, and the person performing them would expect to be paid, on a current basis. As a result, the
employer may orally promise to leave the employee specific property, such as his house, in return for the employee's
services, or may, in general terms, promise, in return for such services, to see that the employee is well compensated after the
employer's death. He may actually make such a will, in keeping with his promise to compensate his employee, but, thereafter,
having become influenced by another person, perhaps by a relative who may finally have assumed the obligation of caring
for him, may make a new will. As indicated previously, when the promisor dies it then becomes apparent that the person
performing the services has been left without the promised consideration for his services. Perhaps the recipient never really
intends that the person caring for him have anything for his labors and, in effect, attempts to defraud him by doing nothing
about making the promised will. On the other hand, the claimant may have been the sole initiator of the relationship, having
volunteered his services in the expectation that he could influence the recipient to make him his heir.
Thus, counsel is concerned with relationships that might have continued to exist indefinitely without litigation were it not
for the occurrence of an event that is entirely extraneous to the facts upon which the legal relationship was based. To this
extent, the actions that will be used as examples for purposes of discussion are unique. An action on a note or for personal
injuries sustained in an accident might involve a decedent's estate only incidentally. Such litigation would be initiated
because of other considerations, such as nonpayment of the note or the insurance company's failure to make a satisfactory
offer of settlement, and would be brought whether or not death had intervened.
Thus, it may be postulated that both exemplary types of litigation involve, as one of their factual elements, an attempt to
repair broken hopes frustrated by death, and the conscious or unconscious tendency of the surviving party to the transaction
will be to construe the facts in the way most beneficial to himself.
In any of these cases, a lawsuit against the recipient's estate to establish the claim for services will very likely result. If
the transaction is valid, both parties have acted honestly, and there has been no interference by third parties, the person who
performed the services will receive his inheritance, and the matter will be concluded. If, however, a claim is required to
enforce payment, the heirs, no matter how remote or how disinterested they were in the decedent's welfare during his
lifetime, will almost certainly oppose payment of the claim vigorously. Since they will probably control the administration of
the estate by virtue of the fact that one of their number is the fiduciary, an acquiescence is probably not to be expected. Even
a fiduciary who has no personal interest in the estate will undoubtedly feel duty-bound to offer some resistance, because such
claims are, at best, vague and do not lend themselves to accurate evaluation. The fiduciary, being in a position of trust, must
act in the best interests of his principals, who are[12] the decedent's creditors and his heirs. He cannot, without personal
liability, permit the estate to be depleted.
Cases:
In action by woman seeking compensation for services rendered to decedent, with whom she and her children had lived
for four years and by whom she had child, court did not err in denying woman's claim, even though she had helped decedent
with farming when he became disabled, and had fed, clothed, bathed, and generally taken personal care of him and children,
where there had been no express contract between woman and decedent, and where there could be no contract implied in law
given absence of evidence that decedent had known that woman expected money compensation for her services and had
accepted them on that basis. Wade v. Brooks (1992, SC App) 413 SE2d 333.
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§ 6. Objectives of the parties
The claimant or survivor will have a personal and immediate financial interest in the resolution of the controversy. His
lawyer must, therefore, have as his primary objective the achievement of the best possible monetary result for his client. The
fiduciary, on the other hand, is essentially a stakeholder or conduit of rights and property. Any financial interest he may have
in the outcome will result from his wearing another hat, for example, as a creditor or as one of the next of kin of the decedent.
His ultimate objective should be to carry out his trust as expeditiously as possible while still performing his fiduciary
obligations. Naturally, he will wish to protect himself from any personal liability or surcharge on his accounts. The
fiduciary's lawyer must, therefore, conduct his representation in such a way that his client will be fully protected and the
administration proceeding concluded at an early date. In the conduct of the case by the fiduciary's lawyer, therefore, the

importance of dollars and cents will be somewhat diluted by these other considerations.
B. Effect on Action of "Dead Man" Statute
§ 7. In general
A discussion of the "dead man" statutes enacted by the various states, which concern the competency of certain
witnesses to testify when a decedent's estate is involved in the litigation, may seem to be more appropriate to the portion of
this article dealing with the subject of the trial or preparation for trial. It is inserted here, however, because the lawyer's
evaluation of the testimonial evidence available in such cases to him or to his adversary influences, or should influence,
everything he does from the initial interview onward. Many cases involving a decedent's estate are won or lost because one
side or the other overlooks the peculiar problems of proof that are presented by the "dead man" statute in force in the
jurisdiction.
Practically all jurisdictions disqualify as a witness, or limit the scope or effect of the testimony of, a party or one
interested in a suit when the adverse party is the personal representative of, or successor in interest to, a deceased or insane
person.[13] This disqualification, first applied at common law as to parties and interested persons generally,[14] is
perpetuated by the so-called "dead man" statutes with respect to parties opposing a deceased or insane person's
representative.[15] The purpose of such statutes is two-fold: (1) to put the parties on an equal footing so that when one party
in interest is silenced by death or insanity, the other is also silenced by the statute, and (2) to remove the temptation to perjury
that might exist if the interested party could testify without fear of contradiction.[16]
Some statutes disqualify the surviving party absolutely as to all events occurring before the decedent's death; others
provide a partial disqualification, applying only to conversations or transactions with the deceased or insane person; while
still others permit the party to testify without such restrictions, but provide that no judgment shall be entered in his favor
unless his testimony is corroborated.[17]
In any event, the attorney proposing to prosecute a client's claim against a decedent's estate must be aware that he may
need more than the testimony of his client to make his case, and, conversely, the attorney defending such a claim should be
cognizant of the possible incompetence or limited utility of such testimony.
Editor's Comment:
See also Terms of Oral Contract with Decedent, 39 Am. Jur. Proof of Facts 2d 91.
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§ 8. Actions to which statute applies
"Dead man" statutes apply typically to contract actions. Moreover, unless specifically excepted, tort actions are also
included within the ambit of such statutes.[18] This might be overlooked if the particular statute refers to "transactions" with
the decedent, thereby creating the impression that only contractual relationships are protected. However, a statutory
prohibition couched in terms of "transactions" with the decedent would not preclude testimony by the survivor in a tort action
as to the physical situation or the conduct of the deceased not connected with or influenced by the conduct of the witness.[19]
A statutory exception applicable to "negligence" actions does not include workmen's compensation cases.[20]
Cases:
The dead man's statute does not apply when the action is not against the executor or administrator of an estate and the
claim does not represent a demand against the estate. I.C. § 9-202, subd. 3; Rules of Evid., Rule 601(b). Rowan v. Riley, 139
Idaho 49, 72 P.3d 889, 50 U.C.C. Rep. Serv. 2d 1127 (2003); West's Key Number Digest, Witnesses 128.
"Party," as used in the Dead Man's Statute, means the witness must be a party to the issue, or if merely a party to the record
then to be incompetent the witness must have an interest in the issue in favor of the party calling him and adverse to the
estate. West's A.I.C. 34-45-2-4. Lasater v. House, 805 N.E.2d 824 (Ind. Ct. App. 2004), transfer granted, opinion vacated, IN
RAP 58(A), (Sept. 29, 2004); West's Key Number Digest, Limitation of Actions 140(1).
An interest which would render a witness incompetent to testify under the Dead Man's Statute is one by which the witness
will gain or lose by the direct legal operation of that judgment; interest must be direct, present, certain and vested, it must be
a real and legal interest, it must be adverse to the estate, and a bias or sentiment is not itself sufficient. West's A.I.C. 34-45-2-
4. Lasater v. House, 805 N.E.2d 824 (Ind. Ct. App. 2004), transfer granted, opinion vacated, IN RAP 58(A), (Sept. 29, 2004);
West's Key Number Digest, Limitation of Actions 140(2).
Dead Man's Statute did not apply in attorney disciplinary proceeding to preclude attorney from testifying how he handled
$200,000 down payment in real estate transaction wherein he represented vendor who subsequently died; although attorney
testified as witness in his own behalf or interest, he did not testify against executor, administrator or survivor of vendor, but
rather, against Disciplinary Committee. McKinney's CPLR 4519. In re Zalk, 10 N.Y.3d 669, 862 N.Y.S.2d 305, 892 N.E.2d
369 (2008); West's Key Number Digest, Witnesses 171.
Dead Man's Statute only applies to testimony against the executor, administrator or survivor of deceased; it does not
foreclose testimony that potentially cuts against these parties' interests in contingent future proceeding. McKinney's CPLR
4519. In re Zalk, 10 N.Y.3d 669, 862 N.Y.S.2d 305, 892 N.E.2d 369 (2008); West's Key Number Digest, Witnesses
171.
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§ 9. Testimony barred by statute
As indicated above,[21] the purpose of "dead man" statutes is primarily the exclusion, or limitation of the scope or effect,
of testimony by a surviving party. Persons other than the surviving party who may be disqualified, depending upon the
wording or interpretation of the statute of the particular jurisdiction, include the spouse of the surviving party;[22]
predecessors in interest, such as a claimant's assignor;[23] sureties;[24] a co-obligor;[25] and generally those persons against
whom the judgment would operate as a bar or against whom the judgment might be introduced into evidence.[26]

Though the statutory disqualification applies only to transactions or conversations with the decedent, the adverse party
may, nevertheless, not be permitted to testify as to services performed with the decedent's knowledge, on the ground that the
effect of such testimony would be to show an implied contract to pay for the services.[27]
Some statutes disqualify the personal representative[28] and heirs[29] as well as the adverse party.
Cases:
For the purpose of application of the Dead Man's Statute, an adverse interest that would render a witness incompetent
under the statute is one by which the witness will gain or lose by the direct, legal operation of the judgment. West's A.I.C. 34-
45-2-4(d)(2). In re Guardianship of Knepper, 856 N.E.2d 150 (Ind. Ct. App. 2006), decision clarified on reh'g, 861 N.E.2d
717 (Ind. Ct. App. 2007) and transfer denied, 869 N.E.2d 458 (Ind. 2007); West's Key Number Digest, Witnesses
140(3).
Executrix's testimony concerning promissory note she found among decedent's effects was offered in her capacity as
executrix, not as an agent of decedent, and thus, section of dead man's statute, providing that testimony of a decedent's agent
regarding a transaction agent had with a party to the suit renders the party against whom the evidence was adduced competent
to testify, did not apply to make alleged parties to promissory note competent to testify, where decedent, not executrix,
negotiated note, and executrix was not party to transaction. West's A.I.C. 34-45-2-6. J.M. Corp. v. Roberson, 749 N.E.2d 567
(Ind. Ct. App. 2001); West's Key Number Digest, Witnesses 176(1).
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§ 10. Testimony not barred
Where the interest of coparties is several and not joint, one coparty is ordinarily permitted to testify in favor of another,
although he may be barred from testifying for himself.[30] Accordingly, a decedent's personal representative cannot prevent a
witness who does not have a joint interest with the survivor from testifying in the latter's behalf by making the witness a
nominal party to the action.[31]
In states where the statutory disqualification runs to communications or transactions, the adverse party may give his
opinion as to the handwriting or signature of the decedent, at least if his opinion is derived from information other than that
gleaned from his participation in the transaction at issue.[32]
Generally, a director, officer, or managing agent is permitted to testify on behalf of his corporation and against the
fiduciary of a decedent's estate,[33] unless the statute disqualifies "agents" of a corporation and not merely "parties."[34]
Similarly, the competency of a stockholder to testify for the corporation may depend upon whether the statute bars "interested
persons" or only "parties."[35]
Generally, the agent of a personal principal is not disqualified from testifying for his principal, whether the latter is the
surviving or the deceased party, and even though the transaction was with the agent, provided that he has no direct interest in
the litigation.[36] However, if the principal was present during the transaction, the agent may be so identified with the
principal as to disqualify him as a witness to the same extent as the principal.[37] Moreover, if the agent is deceased, his
principal may be incompetent to testify against the other party's estate.[38]
Under some circumstances, introduction of the decedent's deposition by the adverse party will remove the latter's
disqualification.[39]
Whether the statutory disqualification is absolute or partial,[40] it generally would not apply to events occurring after the
decedent's death.[41]
Cases:
Identification of deceased's signature: Donee's testimony, which was offered to establish his deceased mother's gift of
a lithograph was barred by Maryland's Dead Man's Statute; however, statute did not bar donee's identification of mother's
signature on the deed of gift. West's Ann.Md.Code, Courts and Judicial Proceedings, § 9-116. Estate of Genecin ex rel.
Genecin v. Genecin, 363 F. Supp. 2d 306 (D. Conn. 2005); West's Key Number Digest, Witnesses 164(3).
Dead Man's Act did not bar decedent's estate from questioning plaintiff motorist whether automobile accident which gave
rise to lawsuit occurred on road with 30-mile per hour speed limit; question concerning fact that existed independent of
collision did not fall within substantive requirements of Act, and plaintiff did not have standing to raise Act. S.H.A. 735
ILCS 5/8-201. Moran v. Erickson, 231 Ill. Dec. 484, 696 N.E.2d 780 (App. Ct. 1st Dist. 1998).
In action between administrators of two estates, state dead-man statute did not preclude testimony by attorney for defendant
administrator, as attorney's right to recover fees from estate was not contingent upon successful defense of estate, and
attorney was testifying for defendant rather than on his own behalf. Popham v. Taff (In re Estate of Sewart) (1995, 1st Dist)
274 Ill App 3d 298, 210 Ill Dec 175, 652 NE2d 1151, reh den (Jul 21, 1995).
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§ 11. Waiver of statute
While a "dead man" statute seeks to redress testimonial imbalance, it does not always accomplish that precise result. In
some situations, the statute will serve its purpose by interposing an insuperable barrier to testimony by the surviving party.
However, in other situations, the statute will be largely ineffective, mainly because of the operation of the doctrine of waiver.
For example, if the surviving party makes out a prima facie case without himself testifying, the attorney representing the
estate may find it necessary to cross-examine the survivor to establish some point of his defense. However, if he does so, he
may thereby waive the protection of the statute and open the door to testimony by the survivor on other aspects of the case
that would otherwise have been excluded by the statute.[42] Waiver may also result under particular statutes from taking the
deposition of the surviving party, serving him with interrogatories, or directing other discovery procedures to him.[43] Under
other statutes, courts have declined to find a waiver unless the deposition, interrogatory, or other discovery proceeding is
introduced in evidence.[44] Moreover, in some jurisdictions, the survivor may refuse to testify on deposition unless the
fiduciary waives the statute for the purposes of all hearings and proceedings in the case.[45]

In those jurisdictions in which the statutory disqualification applies only to conversations and transactions with the
decedent, inquiry of the survivor as to other matters probably would not effect a waiver of the statute's protection.[46]
However, where the statutory disqualification is couched in absolute terms, as applying to any event occurring before the
decedent's death, any inquiry directed to the survivor concerning a predeath occurrence may operate as a complete waiver of
the statute.[47]
Other acts on the part of the decedent's personal representative, such as the introduction of testimony of the decedent
taken de bene esse,[48] may result in waiver of the statutory protection.
Disqualification under a "dead man" statute may also be "waived" by failure to make timely objection or by objecting on
the wrong ground.[49] In view, therefore, of the manifold ways in which the protection of the "dead man" statute may be lost,
it behooves the lawyer for the estate to make a meaningful analysis of the case, rather than placing his entire reliance on the
statute.
Cases:
Administrator of decedent's estate and decedent's sister waived the applicability of the dead man's statute, in action
challenging decedent's inter vivos transfer of farm to caretakers, when administrator and decedent's sister designated
caretaker's deposition testimony, which related to matters or transactions concerning decedent, in support of their motion for
summary judgment. Rules of Evid., Rule 601; West's A.I.C. 34-45-2-4. Carlson v. Warren, 878 N.E.2d 844 (Ind. Ct. App.
2007); West's Key Number Digest, Witnesses 178(4).
Grandchildren waived any objection to testimony from testator's financial advisor based on a violation of the Dead Man's
Statute, in proceeding to restore assets that alleged testator's sister fraudulently named herself as beneficiary on some of
testator's accounts, where financial advisor was not entitled to any of the funds in accounts, and grandchildren never objected
to financial advisor's testimony based on the Dead Man's Statute. West's A.I.C. 34-45-2-4(d)(2). In re Guardianship of
Knepper, 856 N.E.2d 150 (Ind. Ct. App. 2006), decision clarified on reh'g, 861 N.E.2d 717 (Ind. Ct. App. 2007) and transfer
denied, 869 N.E.2d 458 (Ind. 2007); West's Key Number Digest, Witnesses 181.
Mere taking of a deposition does not waive applicability of dead man's statutes nor does requesting an admission constitute a
waiver of incompetency of witness receiving that request, but when a party uses a deposition or admissions in court, the party
is in fact using the information for an evidentiary purpose; if the deposition testimony concerns matters within scope of the
dead man's statutes, then the party who offered the deposition testimony into evidence has waived the incompetency of the
witness, because that party has relinquished the benefit bestowed by the statutes. IC 34-45-2-4 et seq. (1998 Ed.). J.M. Corp.
v. Roberson, 749 N.E.2d 567 (Ind. Ct. App. 2001); West's Key Number Digest, Witnesses 178(1).
By introducing the deposition testimony of respondent in which she testified that she received money from decedent
following a withdrawal from decedent's savings account, executor of decedent's estate waived the protection of the Dead
Man's Statute and opened the door to the otherwise incompetent testimony of respondent at the hearing on executor's petition
seeking discovery and delivery of the proceeds of a bank account and other property allegedly belonging to decedent at the
time of her death. McKinney's CPLR 4519. In re Estate of Lamparelli, 6 A.D.3d 1218, 776 N.Y.S.2d 665 (App. Div. 4th
Dep't 2004); West's Key Number Digest, Limitation of Actions 178(4).
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II. Client Interview
§ 12. In general; interview checklist
As in any other case a lawyer undertakes he must first acquire a general familiarity with the facts as they are understood
by the client, and with the proofs available to establish the pertinent facts.[50] However, in cases involving decedents' estates,
the lawyer must investigate more carefully the availability of witnesses and documentary evidence than might be his practice
otherwise at the initial interview due to the limitations imposed by the "dead man" statute on use of the real parties in interest
to prove his case. This aspect of the initial interview is more important to the lawyer representing the surviving party than it
is to the lawyer for the fiduciary because, of course, the latter has the option of waiving the statute, if necessary, to establish
his position.
The following is a list of factual matters relevant to a claim against an estate that should be the subject of inquiry by the
lawyer representing the survivor at the initial interview with his client:
1. Names and addresses of the decedent, the fiduciary, and the fiduciary's lawyer.
2. Probate court case number.
3. Date of decedent's death.
4. Decedent's approximate age at death.
5. Date of appointment of fiduciary or of publication of notice to file claims.
6. Decedent's occupation.
7. General extent of decedent's property.
8. Decedent's indebtedness.
9. Decedent's family situation.
10. Whether will executed by decedent has been filed in his estate.
11. Client's knowledge of previous wills, if any, and of persons having custody of such wills.
12. Books of account or other records maintained by client relating to transactions with decedent.
13. Dates services were performed by client or when other transactions occurred with decedent.
14. Client's correspondence with the decedent relative to matters in issue.
15. Existence of formal, written contracts, such as partnership agreements, notes, or construction contracts.

16. Balance sheets, profit and loss statements, and physical inventory records relating to partnerships, proprietorships, or
corporations in which decedent was interested.
17. Names and addresses of disinterested witnesses to transactions between the survivor and the decedent.
18. Client's contacts with representatives of the estate relative to his claim and result of such contacts.
The inquiry suggested in Items 5 and 18 above may be important in determining whether the client's claim has been, or
still may be, timely presented.[51] In the same connection, the existence of a will specifically directing payment of the
client's debt may dispense with the statutory requirements relative to presentation of a claim;[52] for that reason, and
others mentioned later, Items 10 and 11 are included as proper subjects of inquiry.
Of course, the lawyer must begin evaluating the prospects of recovery immediately. Information that would be contained
in a decedent's balance sheet and other financial records (Item 16), as well as knowledge of his physical assets (Item 7),
are much more important than if the decedent were still living. There is no longer any possibility that the decedent's
property available for satisfaction of his debts will be increased by his personal efforts. Furthermore, a debtor's death
brings into play a schedule of priorities for the payment of his debts, as to which inquiry should be made (Item 8 above),
based upon the nature of the debts or the identity of the claimants.[53] Therefore, the rewards for diligence in pressing a
claim are not as great as they are in the debtor's lifetime when the first creditor to levy and enforce an execution on a
judgment, is usually paid before subsequent lienors or general creditors. Thus, while a client might have a valid provable
claim, the net worth of the estate may be such, or the priority of his claim may be so low, that legal action may not be
advisable. The family situation (Item 9 above) is important in this regard because if a widow or minor children, or both,
survive, there may be family allowances due them, which are paid prior to all creditors' claims and may substantially
exhaust the assets of the estate.
If no proceeding for administration of the decedent debtor's estate has been filed, it will be necessary to consider steps to
initiate or to compel initiation of such a proceeding. For this purpose, it also will be necessary to know, among other
matters, the extent of the decedent's assets, the names and addresses of the family members primarily responsible for the
administration, and whether the decedent executed a will.
Cases:
Attorney-client privilege: Trustee for estate was entitled to discovery from fiduciaries of estate, including access to
attorney-client advice and accounting advice previously provided to fiduciaries; trustee was the current holder of the
attorney-client privilege, and the power to assert the privilege, or waive it, passed from predecessor trustee to the current
trustee in order to effectuate the continuous administration of the estate. In re Estate of Fedor, 356 N.J. Super. 218, 811 A.2d
970 (Ch. Div. 2001); West's Key Number Digest, Witnesses 217.
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§ 13. Evaluating the client
In cases of the type under consideration, the lawyer must evaluate his prospective client in more depth than might
otherwise be required.[54] The finality of death quite often leaves business unfinished, thus tempting the survivor to try to
make dispositions in accordance with his own expectations rather than as justified by existing facts. While there are many
people who assist aged persons out of kindness, there are others who are motivated by more material inducements. If the
survivor was a mere volunteer acting in the hope of a reward or in the belief that he could influence the invalid to make a
testamentary disposition in his favor, and if the decedent did not express his gratitude as expected, the survivor will probably
convince himself that something is owed him. In the same way, a person who has managed a business for a decedent, perhaps
contributing greatly to its value through his own personal efforts, might tend to create a partnership out of a mere
compensation arrangement based on profit-sharing. The decedent may even have held out the possibility of a partnership as
an inducement to greater efforts on the manager's part. But if the elements establishing full participation in the profits and
losses are not present, or if the prospective partnership was never consummated, the claim will fail.
A lawyer who cannot or will not make an independent assessment of the client's capacity for self-delusion or dishonesty
will do a disservice to both the client and himself. In the case of the pseudopartnership, the client would be better advised to
maintain the good will of the decedent's successors with a view toward a possible purchase of the business on fair terms to
himself than to insist on an accounting as to a fancied partnership with the decedent.
These considerations present the lawyer with a moral and ethical problem. The fact that he is an advocate, not a judge or
jury, does not excuse him from the duty of exercising some judgment as to his client's sincerity and integrity. This is
particularly true in cases of this type, where the opposite party to the transaction on which the claim is based is not available
to give his side of the story. While there are, to be sure, many cases in which the survivor is imposed upon by a decedent who
promised much, while intending to deliver little or nothing, the possibility of fraud resulting from prosecution of unfounded
claims is always present and should be guarded against.
§ 14. Fees and charges
Compensation should be discussed by the lawyer and the client at the first conference, and this discussion should be
initiated by the lawyer.[55] In addition to fostering the trust that is the foundation of a solid lawyer-client relationship, a full
and frank disclosure of the required financial arrangements will probably discourage unwarranted litigation.
A contingent fee will be appropriate in case of a claim for personal services, particularly when the client is not engaged
in the business of rendering services of the type for which claim is made, as where the claim is for care given an aged person.
[56] In the case of claims arising from services rendered in a professional or commercial relationship, in which attorney fees
incurred in enforcing the claim may be deductible as a business expense for income tax purposes, an hourly or similar basis
of compensation should also be considered.
The appropriate contingent percentage will vary from one locality to another, but it seems that a one-third share of the
recovery for the lawyer, whether or not the suit is ultimately tried, should be the minimum,[57] since the development of
competent proofs demands more investigation, technical skill, research, and skill in trial than would be the case if the
decedent were living and amenable to suit. Indeed, for these reasons, a retainer or suit fee is indicated in most cases, which
fee may be applied against the contingent fee if recovery is had or retained if suit is unsuccessful.[58]
Although partnership accounting suits are frequently handled on strictly an hourly or per diem basis, rigid adherence to
such a practice will, in many situations, be unfair to the client or to the lawyer. While the lawyer's charges should not
necessarily be directly proportionate to the time spent in prosecuting the litigation, they should reflect both the time spent and
the results achieved. It is a well known fact that a minimum amount of time spent in knowledgeable, skilful negotiations quite
often produces a more satisfactory and valuable result to the client than interminable hours of legal research and courtroom
time. The important thing for the lawyer to remember is that a surviving partner is a man engaged in a business that he
probably wishes to preserve at a cost he considers just, at least to himself. He will expect his relationship with his counsel to
be businesslike, and will bear in mind the federal income tax implications of his legal costs. If he does not understand the tax
consequences, his counsel should be prepared to educate him on that point. In any case, however, the practice of submitting

to the client periodically a transcript of the attorney's time record, showing the dates that services were performed, the nature
of the services rendered, and the time spent in each instance, is recommended.
The lawyer should also consider the advantage to himself and to his client of periodic, partial billings on account. Partial
billings would necessarily be based almost entirely on time spent, but need not prejudice counsel's right to take results into
consideration at the time of final billing. Partial billings, in addition to being easier to pay than one large, lump sum, allow
the client to see where he stands and where he might be going in the matter of his legal costs, thus promoting in him a more
pragmatic attitude toward compromise.
The attorney for the fiduciary is in a slightly different position. In most cases, he will have acted as the fiduciary's legal
counsel prior to the controversy with the claimant. In addition, the reasonableness of his fee as an item of credit in the
fiduciary's accounts will generally be a matter for review by the probate court. This is tantamount to saying that the court will
fix the fee, although, theoretically, the fiduciary is liable personally for any excess of the amount he charges to attorney fees
over the amount allowed by the court. In addition to the amount of time spent and the result obtained, the court will look also
to the availability of estate funds to meet the charge. Thus, the need for a discussion of fees at the initial conference between
attorney and fiduciary may not be as apparent as in the case where the client is the survivor. The lawyer should bear in mind,
though, that compensation for services rendered in the unsuccessful defense of a valid claim that the fiduciary ought, in the
exercise of ordinary prudence, to have paid in his capacity as trustee for the primary benefit of creditors may not be allowed
by the probate court.[59] Therefore, insistence by the fiduciary client upon the defense of a claim that the lawyer in the
exercise of his independent judgment deems proper for payment should prompt the lawyer to suggest that the client seek
other counsel or to demand that the fiduciary personally guarantee payment of his fee for services rendered in defending the
claim.
Cases:
Letter written by attorney testator to future attorney for his estate, directing that his executor pay attorney fee for legal
services rendered to estate at rate of 7 percent in consideration of many favors extended him by attorney, including sharing of
office space and rendition of services at reduced rates, was unenforceable where legal services to estate were not
satisfactorily performed; attorney's fee fixed in letter was not gift but compensation for services expected to be performed. If
letter were considered in nature of retainer agreement, award of counsel fees thereunder presupposed satisfactory
performance of services. Re Estate of Mehr (1991) 152 Misc 2d 419, 576 NYS2d 993.
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§ 14.5. Attorneys' fees chargeable to estate
Cases:
Attorney whose client died while client's medical malpractice action was in the discovery phase, and who was denied
permission to pursue the case by personal representative of client's estate, was entitled to recover in quantum meruit the
reasonable cost of the legal services provided to client before his death, even though attorney had contingent fee arrangement
with client that did not provide for attorney fees in the absence of a monetary recovery; attorney-client relationship and
contingent fee contract both terminated upon client's death, and there was nothing in the record to indicate that attorney was
discharged for cause. In re Estate of Simmons, 362 Ill. App. 3d 944, 299 Ill. Dec. 302, 841 N.E.2d 1034 (5th Dist. 2005);
West's Key Number Digest, Attorney and Client 134(2).
In settling account of attorney who acted as temporary administrator of decedent's estate, award for 120 hours of legal
services would be reduced to award for 50 hours of legal services where (1) attorney submitted 17 pages of time records to
support claim, but court could only find 45 to 50 hours of recorded time for actual legal services, and (2) remainder of entries
consisted primarily of telephone calls to various persons involved in providing goods or services to farm that was major asset
of estate, writing of letters on unknown subjects, and conducting other unspecified business, or time spent visiting farm. Re
Estate of Passuello (1992, 3d Dept) 184 AD2d 108, 591 NYS2d 542.
In action by temporary administrator against estate for extra compensation for attorney's fees, such fees were reduced, where
work done on decedent's farm was not legal service, office services did not fit within ambit of statute, and list of "general
legal work" contained such vague and generalized descriptions that it was insufficient to establish that acts were legal as
opposed to executorial in nature. Re Estate of Passuello (1992, 3d Dept) 184 App Div 2d 108, 591 NYS2d 542.
In final executors' accounting in which court was required to determine fees of several attorneys or firms which rendered
services to estate, attorneys' fees would be limited to amount which might reasonably be awarded to single attorney or firm
representing both coexecutors since (1) although coexecutors were within their rights in employing separate counsel, practice
of retaining separate counsel leads to duplication of legal services and excessive fees, and (2) decedent's estate and estate of
decedent's husband, who died one month earlier, were administered essentially as one estate and thus economies of time and
effort were realized. Re Estate of Mergentime (1992, Sur) 155 Misc 2d 502, 588 NYS2d 736.
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III. Presenting Claims Against Estate; Time Limitations For Prosecution
A. Presentation of Claims
§ 15. In general
Historically, the probate court has jurisdiction with respect to decedents' estates only over the probate of a will and the
administration of a testate or intestate estate, that is, the collection, valuation, and liquidation of the assets and distribution of
the proceeds to the creditors and heirs or legatees, in accordance with their relative priority. While few states have given the
probate court jurisdiction to determine the validity of claims, this power ordinarily is vested in the courts of general primary
jurisdiction.[60] In other words, although statutes relating to decedents' estates commonly require claims to be "presented" or
filed in the estate,[61] if litigation is necessary to enforce his claim, the creditor must have recourse to the same court in
which he would have sued if death had not intervened. Thus, the lawyer handling a contested claim must contend with two
sets of procedures, and, as is more fully explained later, each of them may be subject to a different limitation period.[62]
Counsel should bear in mind, however, that this duality presents advantages, as well as the disadvantages inherent in being
required to keep abreast of two procedures, one of which he may not be particularly familiar with. For example, the
requirement for presentation of claims, while primarily intended to promote expeditious administration by barring claims not
promptly prosecuted, also gives each side the opportunity to gather information about the other's position and, in that process,

ought also to promote settlement negotiation. Moreover, the creditor's status as a party interested in the administration of the
estate enables him to make sure that no actions are being taken that might prejudice his interests. Further, the probate court
record should contain a complete revelation of the estate's assets, something that is not available in any public records to one
who intends to sue a living person; from such information, the creditor may appraise his chances of receiving payment of his
claim.
It may devolve upon the claimant to create not only a defendant but also, at the same time, a fund from which to be paid.
It has already been pointed out that an administration may not be required legally.[63] It follows that in some instances the
decedent's family may not seek administration of his estate even though there are assets in existence. In such cases, a creditor
may have the right to force an administration, and may even be able to control the appointment of an administrator, if there
are no available individuals who would have a right to act as such.[64] Thus, a creditor's just claim may not be defeated
merely because others have not sought administration and there is no one to sue, or because all of the decedent's assets have
not been made available to satisfy the claim.
Editor's Comment:
For an annotation collecting and analyzing the cases in which the courts have discussed the effect, if any, that the death of a
husband has on a provision in a spearation agreement requiring him to make periodic payments for the support and
maintenance of his wife, see 5 A.L.R. 4th 1153.
Cases:
Letter by attorney for decedent's estate addressed to creditors in which attorney stated that he needed further information
before acting on creditors' claim, stated that "it would be safer to disallow the claim pending receipt of the requested
documentation" and advised creditors that claim would be barred if requested material were not received within 60 days,
pursuant to statute, did not constitute rejection of claim within meaning of statute so as to initiate running of 60-day period;
on record presented, letter was not sufficiently clear and unequivocal. Law Office of William F. Brattain II v. Anderson (In re
Estate of Evans) (1995, Alaska) 901 P2d 1138.
Formal requirements: Creditor's letters to decedent's wife were insufficient to create a valid claim against decedent's estate,
even though decedent's wife was appointed executrix of the estate; creditor's initial letter was sent to decedent's wife in her
individual capacity, after wife informed creditor that decedent had passed away creditor chose not to file a claim with the
court, there was no evidence that creditor wrote to decedent's wife in her capacity as executrix, and there was no unequivocal
intention to pursue a claim against decedent's estate expressed in the letters. S.H.A. 755 ILCS 5/18-2. In re Estate of Lane,
345 Ill. App. 3d 1123, 281 Ill. Dec. 487, 804 N.E.2d 113 (4th Dist. 2003), appeal denied, 209 Ill. 2d 581, 286 Ill. Dec. 165,
813 N.E.2d 222 (2004); West's Key Number Digest, Limitation of Actions 227(1).
Claim against insolvent decedent's estate for legal fees and disbursements incurred in connection with prosecution of personal
injury action on behalf of decedent during his lifetime, which was settled after filing of note of issue, was preferred debt with
priority over claims of all other creditors, and payment of legal fees and disbursements would be authorized. Re Estate of
Tella (1989) 144 Misc 2d 570, 545 NYS2d 59.
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§ 16. Requirements of nonclaim statute
Many states have a nonclaim statute that requires creditors to present their claims to the fiduciary or to the court for
allowance within a certain time after the fiduciary's appointment or after notice has been given to present claims.[65] If the
claim is not presented within the prescribed period, it may be barred from allowance against the estate.[66] If the claim is
presented within the period allotted and is rejected, there may be a specified time, less than that provided by the general
statute of limitations, for filing suit.[67] It therefore behooves the lawyer for the claimant to know and to adhere strictly to the
requirements of the nonclaim statute in his jurisdiction.
There is disagreement as to whether the filing of a lawsuit on the claim within the period provided for presentation
satisfies the presentation requirements of the nonclaim statute.[68] The better view would seem to be that, since one of the
purposes of the statute is to give the fiduciary the opportunity to dispose of the claim either by payment or amicable
settlement without litigation, prior presentation is required.[69]
The claim should be prepared for presentation with some care. Obviously, if it is based on a book account, it should
conform to the account. However, even if it is a claim that is not susceptible to precise documentation, such as a claim based
on the reasonable value of work and materials furnished, it should be prepared with careful consideration of the probabilities
of proof. The lawyer should keep in mind that the claim will, in the first instance, be passed upon by the court or by the
fiduciary, both of whom have a duty not only to the lawyer's client but also to the other creditors and heirs. The claim should
therefore be cast in such a way that it could be allowed by a reasonably prudent man. The claim may be unliquidated but,
unless it is a tort action, its amount should not be so uncertain that it cannot be estimated realistically. The work performed,
the services rendered, or the materials furnished, if proved, should be capable of valuation based on the standards of the
community in which they are performed or furnished. The uncertainties inherent in evaluating pain and suffering and possible
future disability are not factors in a quantum meruit claim.
On the other hand, it is not recommended that the lawyer, acting on his belief that the estate will be unable to pay the
actual value of the work, services, or materials provided, file a claim for an amount below the reasonable value thereof. This
articial method of putting a value on the claim may be exposed in the testimony, and may adversely affect the claimant's
credibility. Moreover, there is always the possibility that new assets may be discovered. Further, even if the estate finally
does turn out to be insolvent, the claimant's percentage for dividend purposes will be greater if he establishes a larger claim.
As an example, suppose that the claimant spent approximately four hours every day cooking, washing, and performing
housework for the decedent over a period of three years prior to his death. If the normal wage for day help in the area during
the time the services were performed was $12.00 per day, then a reasonable claim would be fixed in the area of $6,500.00
(365 days × 3 years × $6.00, the value of one-half day's work).
Cases:
Lawsuit brought in federal court by a decedent's life insurer alleging that the policy was void because the decedent had
breached the policy's suicide clause was not a "claim" within the meaning of the Probate Code's five-month limitations
period, as it could not have been enforced against the decedent during his lifetime. Indiana Code § 29-1-14-1(a)(1). In re
Estate of Whitehead, 718 N.E.2d 1207 (Ind. Ct. App. 1999); West's Key Number Digest, Executors and Administrators
225(1).
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§ 17. Utilizing available probate court procedures
Lawyers for both the claimant and the fiduciary should make full utilization of procedures available in the probate court
to obtain at least a de facto determination as to the validity of the claim. This would promote expeditious settlement of the
claim and would be beneficial to both sides.
Some states have statutes providing for more or less summary determination of claims in the probate court.[70] The
hearing may be before the probate judge,[71] or before a referee[72] or arbitrators[73] appointed by the court.
Many states allow interested parties to object to the allowance of claims.[74] If a state has such a statutory provision, an
imaginative lawyer for the fiduciary might forestall plenary litigation by allowing a doubtful claim, after making sure
beforehand that there is an interested party who is willing and able to contest the allowance in the probate court.
In almost all of these procedural situations, there are mechanics available for complete retrial of the issue, but, in many
instances, the survivor or the other parties in interest (that is, the other creditors or the heirs) may be satisfied with their day
in probate court even if the result is adverse.
A common error made by fiduciaries is to reject a claim out of hand. This will almost always result in a lawsuit, with all
the attendant delay and increased expenditures of time and money by the estate. It would be expected that if the survivor has
gone to the extent of making a formal claim, he probably has a lawyer and has already anticipated the possibility of having to
file a lawsuit to enforce his claim. A minimum of inquiry, disclosure, and negotiation by both sides will usually cost only a
little time, and may well result in a complete resolution of the issues.
Cases:
Resolution of tort claim that decedent's daughter intentionally interfered with husband's and son's expectancies of
inheritance was not required to fully adjudicate will contest alleging daughter's undue influence, and thus, probate court did
not have plenary jurisdiction over tort claim; tort claim required proof of elements not relevant or necessary to probate court's
determination of undue influence. R.C. § 2101.24(C). Roll v. Edwards, 156 Ohio App. 3d 227, 2004-Ohio-767, 805 N.E.2d
162 (4th Dist. Ross County 2004), appeal not allowed, 102 Ohio St. 3d 1531, 2004-Ohio-3580, 811 N.E.2d 1150 (2004);
West's Key Number Digest, Limitation of Actions 198.
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§ 18. Inspecting fiduciary's administration of estate
A decedent's estate is a creature of the law, and its attributes are therefore a matter of public record. The lawyer for the
survivor should follow the probate court records and dockets periodically to make sure that no action is taken by the fiduciary
that might prejudice his client's rights.
For example, it might become advisable to object to a fiduciary's inventory that omitted estate assets or that showed the
decedent's interest in a business as a proprietorship rather than a partnership. Property may also have been excluded by the
fiduciary on the theory that the decedent had made a gift of it in his lifetime or had transferred it in such a manner as to create
a joint ownership with right of survivorship in another. Upon examination, it may develop that the decedent had failed in his
assumed purpose because of some deficiency in the legal requirements for such a transfer or gift.
The lawyer for the survivor should also verify that his claim, if allowed, is accorded the degree of priority provided by
law. Moreover, where the probate statute grants family allowances as high priority claims, the fiduciary, particularly if he is a
family member, may be tempted to secure high family allowances to "eat up" the available assets, and thereby relieve the
widow of the need to pay claims having an inferior status. If timely objection is not made to the family allowance requested,
the effect may be the loss of the creditor's rights.
The fiduciary is an officer of the probate court and is subject to the court's direction and control and to removal by the
court if he fails properly to carry out his duties.[75] It may become necessary for a claimant's attorney to take action to force
the fiduciary to liquidate property in order to pay debts or to prevent its depreciation in value, or, where the remedy is
available to the fiduciary, to compel him to institute an action to avoid decedent's fraudulent transfers.
While it is not suggested that the claimant engage in such tactics purely to torment the opposition where there is no real
basis for intervention, it is also believed that the fiduciary should be recalled to his trust duties when he strays from them. If,
in the process, he decides that it would be more expedient to be reasonable than to be defiant, both sides may be better
served.
It should be noted that the fact that a creditor's claim has been disallowed and he has filed a plenary action in another
court probably does not deprive him of his status as an interested party in the probate proceeding, with standing to object to
acts or inaction of the fiduciary. The same may be said of a claimant seeking to establish a partnership relationship with the
decedent in an equity suit.
B. Time Limitations for Prosecuting Claim
§ 19. In general; effect of statute of limitations and nonclaim statute
There are substantial variances in the terminology of the general limitations and nonclaim statutes, which largely account
for the differences in the case law in this area, where case law exists. Nevertheless, some of the principal matters of practical
concern to the lawyer in connection with the statutory limitations on presenting or prosecuting a client's claim against a
decedent's estate can be pointed out.[76] If a prospective defendant dies, there is no longer anyone to sue. In recognition of
this disconcerting fact, some states have enacted statutes that suspend the general statute of limitations during the period
between debtor's death and the appointment of his personal representative.[77] These statutes assume, of course, that the
limitation period has not expired prior to death. If there is no such statute in a particular jurisdiction, and no fiduciary has
been appointed, counsel may be forced to petition for appointment of a fiduciary in order to commence an action within the
period of the general statute.
Other states seek to solve this problem by providing a specific period after death within which actions not barred by the
general statute prior to death may be instituted.[78] Such statutes merely postpone the evil day, and the lawyer may still be
required eventually to force an administration in order to come within the additional period.
The court decisions in some states hold that the nonclaim statute creates a new period of limitation for suit on claims as
to which the general statute did not expire before death, even in the absence of any express statutory provision to that effect.
[79] Courts in other jurisdictions hold, to the contrary, that the general limitations statute is not tolled for the period for
presentation of claims set forth in the nonclaim statute.[80]

To afford fiduciaries an opportunity to examine claims, and to protect them from the annoyance of unnecessary litigation
against the estate, many jurisdictions grant fiduciaries immunity from suit for a certain period after their appointment, or after
the decedent's death, or after probate of the will,[81] and the effect of such a statutory provision is to toll the statute of
limitations in favor of the surviving party for the same period.[82] Where the statutory immunity period commences with the
date of appointment of the fiduciary, some courts infer a statutory intent as well to toll the statute of limitations after the
decedent's death until the fiduciary is appointed.[83] However, if no such inference is apparent in the judicial decisions of a
particular jurisdiction, or if the immunity period begins with an event other than the appointment of the fiduciary, the general
limitations period may, in the first situation, expire, and, in the second situation, be reactivated and then expire, before the
fiduciary is appointed. In such case, the claimant's lawyer may again be faced with the necessity of forcing an appointment
before the general limitations statute runs against him.
If, in the applicable jurisdiction, there is no immunity period and no case law extending the general limitation period to
the expiration of the nonclaim period, the wary lawyer must assume that he is covered at all times by the general statute of
limitations.
There may also be a trap for the unwary if the law of the state does not provide for automatic rejection of a claim that is
not allowed by the fiduciary within a certain period after presentation. If a fiduciary is permitted to sit on a claim indefinitely,
the general statute may expire before that claim is rejected and thus put in such posture that suit might be filed. In such case,
the claimant should demand allowance or rejection within a stated period if the statutes so allow, and, if they do not, he
should consider the possibility of filing suit without presentation or rejection.[84]
In addition to providing that the claim must be presented within a certain time, the nonclaim statutes often will require
that suit be instituted within a specified period. Again, the statute may designate any one of a variety of events as starting the
running of the statutory period, including the decedent's death, admission of his will to probate, appointment of the fiduciary,
presentation of the claim, and presentation or rejection of the claim.[85]
It is possible that even though suit is instituted prior to the time limit contained in the nonclaim statute, the claim will be
barred by the running of the general statute of limitation unless the general statute is tolled in the interval. If the nonclaim
period for filing suit commences with the presentation or rejection of the claim, it seems probable that the general statute
would be tolled. Were it otherwise, the claimant might be defeated by the fiduciary's failure to act on the claim until the
general limitations period had expired. The best rule for the lawyer to follow is to file suit before either the general or
nonclaim limitation has run, and to rely upon remedies that may be available in probate court to put the claim in such status
that suit may be brought on it.
One final caveat: the statute of limitations applying to the action may be interpreted as extinguishing the right itself,
rather than the remedy to enforce the right.[86] This interpretation typically results when the limitation is included in the
same statute that creates the right. Such a limitation may not be tolled in situations in which, by the law of the same
jurisdiction, a statute that merely extinguishes the remedy would be tolled.[87]
§ 20. Waiver of statute of limitations by the fiduciary
An executor or administrator may be authorized by the law of the jurisdiction or by the decedent's will to waive the
statute of limitations, either before or after the bar has become effective.[88]
While it is difficult to conceive of a situation in which either strategy or tactics would justify waiver after the statute has
run incontrovertibly, it may be desirable to do so in situations in which the law is unsettled as to whether the statute has been
tolled. A waiver in such a case might permit an early compromise solution, whereas, if litigation were necessary to solve the
legal question, a great deal of time would be consumed.
It is also suggested that, if the statute has not run but is about to expire, the lawyer for the fiduciary should consider at
least a partial waiver conditioned on suit being instituted within a certain length of time. One of the main propositions of this
article is that the lawyer for the fiduciary should make all reasonable attempts to forestall litigation. Therefore, if it appears
that an amicable adjustment of the controversy may be possible, it is wise not to insist on the letter of the limitation, thereby
forcing the institution of a lawsuit. However, in order to protect the fiduciary, prior authorization for a waiver should be
obtained from the probate court.
IV. Locating, Interviewing, and Selecting Witnesses
A. Locating and Interviewing Witnesses, Generally
§ 21. In general
For the reasons previously alluded to,[89] both parties must rely heavily upon third-party witnesses and documentary
evidence to establish their cases. In the case of an action for personal services, the persons most likely to be of help are
neighbors, friends, and relatives of the decedent who may have observed the survivor performing services or heard the
decedent make statements concerning his intention to compensate the claimant for the services performed. When the case is
for partnership accounting, the most fertile field is employees or persons who have done business with the partnership or
alleged partnership and, in particular, banks (assuming, of course, that the bank is willing or able to divulge any information
without authorization or court process).
Credit-reporting agencies can give considerable help, both in pointing the way toward sources of information about the
survivor and the decedent, and also in locating witnesses. Public records of all kinds are important sources in these days of
complicated and exhaustive government record-keeping.
Cases:
Testamentary exception to attorney-client privilege applied to statements made by devisees of testatrix's later will to
attorney who drafted that will, even though devisees of later will argued that case involved "inter-dispute" between devisees
and non-devisees; exception was to help establish intent of testatrix, and testamentary exception should be applied to such
disputes concerning all potential beneficiaries, including devisees of earlier will. Estate of Hamilton v. Morris, 67 S.W.3d
786 (Tenn. Ct. App. 2001), appeal denied, (Sept. 24, 2001); West's Key Number Digest, Witnesses 202.
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§ 22. Locating witnesses—for claimant
Some of the methods employed in locating witnesses in civil litigation generally[90] may be useful in an action
involving a decedent's estate. However, such actions also present unique problems that call for procedures tailored to the
particular situation.
At first glance, it might seem a relatively easy matter to canvass the decedent's neighborhood to find persons who have
observed the claimant performing services or heard the decedent express an intention to pay for such services. The claimant
himself can probably furnish names of several prospective witnesses. The most crucial point of time in these cases is when

the decedent first expressed a need for help and the survivor changed his position in some material way in order to provide
that help. However, it is possible that a good witness may have moved in the interval of several years that may have
transpired before the claimant finds it necessary to establish his rights by litigation. If the claimant knows the former
neighbor's name, occupation, and proposed destination it may be possible to locate him through out-of-town telephone books
or city directories, which are available in most cities of any size. Alternately, the former neighbor's employer may furnish a
lead, and, of course, other neighbors may supply valuable information as to the absentee's whereabouts.
The client may only remember, for example, that a woman who lived in a certain house was in and about the decedent's
residence on frequent occasions during a certain period, but not be able to recall her name. Again, other neighbors may be of
help, but, if that fails, the public records or city directories can be consulted to find the owners or occupants of the particular
property at the time in question. Even if the property was not owner-occupied, the owner may be able to give the name and
occupation of his former tenant and to furnish a more recent address, particularly if he had any problems collecting rent.
Central state record departments, such as automobile licensing and drivers licensing agencies, and, in states that have
adopted central recording under the Uniform Commercial Code, central financing statement record offices, may be of help in
locating persons who have moved.
Finally, and certainly not as a last resort, a location report should be requested from the local credit reporting bureau,
since it may have received a request for information from another agency in the location where the prospective witness has
made his new home.
Many, if not all, of the investigative procedures suggested above may and should be pursued by the client; the cost to
him in doing so would be nominal in comparison to what he would have to pay counsel to carry out the investigation
personally.
§ 23. Locating witnesses—For fiduciary
The investigation conducted by the lawyer for the fiduciary will be at once similar to and different from that of the
claimant's representative. He will, of course, want to interview those living or working in the vicinity of the site where the
services were performed. He will also have whatever advantage his client's possession of the decedent's records and
correspondence will afford him in locating such prospective witnesses. Defense counsel's contacts with present and former
neighbors should be as extensive as those of the survivor's attorney.
His purpose in such investigation is to assess the credibility and knowledge of the probable witnesses for the opposition
and to develop a basis for cross-examination, since he will rarely find a defense witness by this means who can do more than
cast doubt on the validity of the claim. For example, the observations of a neighbor may contradict the plaintiff's claim as to
the frequency and character of the work, but they will probably not be sufficient to prove that no services whatever were
performed.
Of considerable importance to the fiduciary are the motives of the survivor in providing the services. As was mentioned
earlier,[91] if the services were performed in a spirit of altruism, they are not compensable, and even if the services were
performed in the hope of gain, they will not support a recovery if the decedent did not form freely an intention to pay for
them in some way. Moreover, the law does not aid a volunteer who imposes his attentions on another in the hope of realizing
a gain that is out of proportion to the value given.[92]
There are, without doubt, those who make a career of helping older people with the purpose of being reimbursed by will.
A credit report might reveal whether the quantum meruit claimant had previously received bequests or devises from unrelated
decedents. The public records would reveal any prior transfers of real estate from decedents, and prior suits, if any, against
decedents' estates to recover for services rendered.
At the earliest possible time in the preparation of his case, the lawyer for the fiduciary will want to assemble as much
information as he can about the character, personality, and attitudes of the claimant. This he can obtain, again, from credit
reports, interviews with neighbors and friends, and personal observations during preliminary conferences between the parties
and their counsel. It is always possible that the claimant, as a witness, will turn out to be his own worst enemy, and, if the
fiduciary's counsel senses this possibility, he may decide to waive the "dead man" statute and allow the survivor to testify. He
may at least decide to take the survivor's deposition as a preliminary test of his theory, even though, as has been pointed out
previously,[93] this may of itself effect a waiver of the statute.
The importance to the defense of full knowledge of the claimant's motives and character is illustrated by an actual case in
which the survivor sought to recover for maintenance and repair work performed over a period of years at a summer resort
owned by a decedent. The jury granted a recovery, which was reversed on appeal. The fact that several of the claimant's
witnesses were women who had accompanied him on overnight trips to the resort, usually during the summer months,
suggested that his expected compensation may have been of a more immediate and personal nature than mere money. While
it is possible that this may have influenced the appellate court in making its decision, the lawyer for the estate might have
been able to obtain the same result in the trial court by driving the point home through cross-examination of the plaintiff. The
risks inherent in permitting the plaintiff to testify could have been more than offset by the advantages of cross-examining
him.
The plaintiff's character and motives may be important in other ways, and might be shown by third-party testimony. The
fact that a person comes to live with another and performs services may be susceptible of various interpretations. The act may
be for the benefit of the passive party but it may also have been for the mutual advantage of both parties, or even primarily
for that of the actor, the benefits to the other party being merely incidental. For example, the survivor may have needed a
place to live and therefore came to the decedent with the understanding that, in return for companionship and a minimum
amount of services, the deceased would furnish food and a place for the claimant to live. Therefore, counsel for the estate
should inquire about claimant's former circumstances. He might, for example, elicit from the claimant's previous landlord that
claimant was asked to leave because he had been a bad tenant or had had trouble paying his rent. Obviously, if he had
previously had difficulty making ends meet, an arrangement whereby he received free room and board would be of
significant benefit to him.
§ 24. Interviewing witnesses
Since everyone has his own style and manner of dealing with people, including people who may be witnesses for or
against his client, the material in this section is subject to modification to suit the natures of both the interviewer and the
person interviewed. Most people have a certain wariness of lawyers and a desire not to become involved with them in
courtrooms. Interviews should therefore be conducted in as easy and natural a way as possible.[94]
The witness should be contacted when he is free to talk without the pressures of work or other duties to distract or
possibly annoy him. The interview should, therefore, be by prior appointment, if possible.
The approach should be easy, natural, and conversational. People will talk more freely and revealingly if they are not
made to feel that everything they say may be taken down, possibly to be used against them in some way. For that reason,
note-taking during the interview should be avoided. Take as long as necessary to get the full benefit of the witness' memory,
even if it means listening to a great many irrelevancies. If a signed, written statement is deemed necessary at that time, wait
until the story is complete before reducing it to writing and asking him to sign the document. If not, it is better practice to
make notes after the interview and prepare a written statement for the witness to sign later. It is possible that the omission of
some pertinent point, overlooked by the witness and the lawyer, will be noted in the interim and elucidated at the subsequent
interview.
The methods and skills utilized by Truman Capote in interviewing witnesses in preparation for his best-selling book "In
Cold Blood" have been the subject of magazine articles,[95] and may be studied with profit by any lawyer investigating a

case of the type under discussion, in which development of testimonial evidence may be of critical importance.
B. Expert and Lay Opinion Witnesses
§ 25. In general
Opinion testimony will be important to both sides to establish reasonable value of services or, in a partnership
accounting where the business is being continued, market value, particularly that of such an esoteric item as "good will."[96]
Generally, a party is competent to give an opinion of the value of his own property or of his own services,[97] but a
surviving party may not be permitted to do so, if he is disqualified from testifying under the "dead man" statute in effect in
the jurisdiction. While it has been held that evidence of the value of services is not necessary where the services in question
are of such a nature that the jury could, from its own experience, form an intelligent appraisal of their value,[98] it behooves
both sides to develop evidence on this point, since it would be dangerous to allow a jury too much latitude for speculation.
The person whose opinion is solicited need not be an expert in the usual sense of the word, but is required to possess the
knowledge and experience necessary to form an intelligent opinion.[99]
If the services for which compensation is sought are of a professional nature, expert testimony of those engaged in the
same profession would be admissible on the question of value, and would, indeed, be the best and most practical method of
proof.[1]
When the action is one for an accounting necessitated by the death of a partner, and the surviving partner has elected to
continue the business, it may be necessary to prove the fair market value of the partnership property. In the case of real estate,
appraisals of market value would be required. Good will, if it exists at all, is difficult to ascertain. Its valuation requires the
services of an accountant whose appraisal might be calculated on the basis of any of various formulas that attempt to place a
value on that part of the custom that does not have its source in the physical assets of the business.[2] Any such formula used
would have to be related to such proven facts as the nature of the business; the length of its existence; the capital invested; its
reliance on advertising, trademarks, and tradenames; and the average return on investment of similar businesses using like
methods and capital.
§ 26. Selection
The sine qua non of a witness whose opinion may be expected to sway a jury or any other trier of facts in arriving at a
judgment as to value is the basis for his knowledge of values, which fact will give his opinion force and validity. This
knowledge should be correlated to the facts of the case with particularity. For example, a real estate broker who deals
primarily in farm land would not be a very good witness if the land to be valued is commercial property, and a trial lawyer
would not do if the claim is for legal services in setting up a corporation. Likewise, an accountant whose experience has been
almost entirely in the field of hotels or motels will not be very authoritative in testifying about the value of the good will of a
haberdashery business.
There should also be a correlation as to size as well as type or nature of the business. For instance, if the business is
relatively small in sales or capital, the lawyer would want an accountant who has experience in handling the problems of
smaller enterprises. Likewise, for the purpose of evaluating the services of another individual lawyer, an individual
practitioner would be preferable to the senior partner of a large law firm. A small business may or may not reasonably expect
a greater return on its investment than a large one, and a large law firm theoretically ought not to be entitled to a larger fee for
the same services than an individual would be, but size will make a difference to those who must ultimately make the
determination, be it a judge or jury. An opponent with any skill in cross-examination at all would make the distinction
apparent.
Beyond the requirement that he have knowledge of the particular area involved, the witness must have the intelligence,
judgment, and self-confidence to be able to understand the questions he will be expected to answer and to answer them
credibly. Thus, while a woman who performs household duties in others' homes would be qualified to give an opinion of the
value of household services performed in her geographical area, the necessity of expressing herself in a court of law might be
too great a strain on her poise to allow her to be a good witness. For example, a gardener called as a witness in a case to
express his opinion of the reasonable value of yard work performed for a decedent was completely incapable of making any
definite statement whatever. Either the lawyer who called him had not talked to him or, more probably, had failed to properly
assess the likelihood that he would be overawed by a court of law and interrogation by lawyers.
If the services for which recovery is sought are unskilled or menial, it would generally be better to search for opinion
testimony among employers of similar labor or employment brokers than among those who have performed like services. If
compensation for housekeeping services is at issue, find someone who has employed a housekeeper at about the time the
services were performed.
In any case, make sure prior to trial that the witness understands what he will be asked to do. Test him by laying before
him the facts upon which he will probably be asked to base his opinion. Determine if he can tender a meaningful opinion if
facts are added that would make performance of the services more or less onerous or that would tend to show partial
consideration, such as provision of room and board to the claimant.
Even if counsel is dealing with a witness who, by education and experience, is a bona fide expert in a particular field, he
may, with reluctance, decide to refrain from calling him as a witness. If the witness is so lacking in confidence and verbal
fluency that he is apt to hesitate or to continually correct himself and start over, he will not help the case. This can also result
when a witness who is totally familiar with his particular field lacks the ability to extract the important points. The expert
who knows his subject thoroughly but insists on explaining it in his own professional argot will tend to confuse or annoy the
jury or the judge. Such individuals should not be used as trial witnesses, even though they may be of inestimable help in
preparing the lawyer for the trial.
V. Documentary Evidence
§ 27. In general
Certain kinds of documentary evidence will naturally suggest themselves. In a partnership accounting suit, the
partnership agreement, if there is one, will more or less control the outcome, depending upon the thought and thoroughness
lent to its preparation. The partnership books and banking records will be necessary to the presentation of the case by both
sides. If the action is on a book account by a person in business against a decedent, the business records will be required for
purposes of preparation, even if they are disqualified for submission in evidence under the applicable "dead man" statute. If
the action is by a building contractor for construction of a building for a decedent, it may be necessary to produce material
delivery slips, even when the action is on an express contract, if the question involves compliance with the material
specifications of the contract. Delivery slips will almost certainly be required if the action seeks foreclosure of a
materialman's mechanic's lien on the decedent's real estate.
Bank records may be important if there is a defense of payment, or of accord and satisfaction by way of an indorsement
inscribed by decedent on a check. If the drawee or receiving bank keeps microfilm records of checks that have cleared, the
fact that an indorsement of accord and satisfaction was added after payment of the check could be shown. In the case of the
man who buried money in his subsequently deceased neighbor's yard, it happened that the bills had been received from a
bank in numbered wrappers. The bank kept records of the bills and their disposition by wrapper number. When the money
was disinterred, the wrappers were still in place, enabling the plaintiff to establish his title to the bills, even though, by the
law of the state of trial, he was absolutely disqualified from testifying.
If, as sometimes happens, a decedent does make a will in favor of the person who performs services by way of
compensation and then later revokes it or makes a new will in favor of a relative or someone else who gives assistance, the

prior will may be competent to prove the intention of the decedent to compensate the plaintiff. The witnesses to the will may
also be able to testify on that point.
Of more doubtful relevance and admissibility is the probated later will which the claimant might wish to bring to the
jury's attention, depending upon who the beneficiaries are. Generally speaking, these beneficiaries will not be members of the
decedent's immediate family because, if a wife or children did exist, there would probably be no need for the services. If
immediate family beneficiaries do exist, the plaintiff will want to make sure that the jury knows that they will not deprive a
widow by granting him a verdict.
The desire to get the last will before the jury would be even stronger if the residual beneficiary were the lawyer who
drew the will and was appointed executor, as was true in one litigated case. Perhaps the only relevancy the actual will can
have is on the question of payment or, rather, nonpayment. Usually, this is not part of the plaintiff's case but must be
specifically pleaded by the defendant, who has the burden of proof.[3] On the other hand, claimant's counsel may succeed in
having the will admitted in evidence by emphasizing that it is offered to establish a breach of contract on decedent's part,
rather than to prove nonpayment.[4]
If the services are such that their result is visible, such as repairs or improvements to property, "before" and "after"
photographs, if available, are acceptable to show that the work was actually done. If either, but not both, are available, they
may be admissible if there is other competent evidence to establish the previous or subsequent condition. For example,
"before" photographs can be coupled with a view of the premises by the jury.
If the action is on a note, and its execution by the decedent is denied, the probated will would certainly be helpful, and
would probably be admissible, as providing an authenticated specimen of the decedent's signature for purposes of comparison
with the signature on the note.
VI. Selecting the Remedy
§ 28. In general; actions available to claimant
Of course, any creditor claiming a lien upon the decedent's land has a right to file a foreclosure suit or an action to
marshal liens. Since land descends immediately to the heirs or devisees in most jurisdictions, they, as well as prior or
subsequent lienholders, are necessary parties to such an action.[5]
If it were desired to hold the other assets of the estate liable for a deficiency judgment, the lienholder would be required
to present his claim and join the fiduciary as a defendant.[6]
If the claim is based upon work performed for the decedent for which the mechanic's lien statute permits a lien on a
decedent's real estate, a lien should be perfected. In such case, the heirs or devisees are necessary parties to an action to
enforce the lien.[7] If the suit is by a laborer, materialman, or subcontractor against the estate of a deceased contractor, a
mechanic's lien should also be filed against the property improved. It may also be possible to join an action against the estate
on the money claim with an action against the owner to enforce the liens.
Where a partnership is dissolved by the death of one of the partners, the surviving partner or partners may face a problem
if they desire to continue the partnership business and the partnership agreement does not provide for that contingency.
Where the surviving partners elect to continue the business, the decedent's fiduciary has the right under § 42 of the Uniform
Partnership Act, which has been adopted almost universally, to claim the value of the decedent's interest in the partnership
assets as of the date of dissolution, together with either interest thereon or with the profits attributable to the use of the
deceased partner's interest, until an accounting is had.[8] Thus, if the business is highly profitable, the fiduciary will
undoubtedly elect to take the profits. If an out-of-court accounting cannot be agreed upon, and if the fiduciary should delay in
exercising his right to an accounting under the act,[9] the surviving partner or partners may find it expedient themselves to
file an action for a judicial winding up of the partnership and an accounting.[10] In this way, the survivors may terminate the
right of the deceased partner's estate, and place themselves in a position to buy the business back at judicial sale. Were the
survivors to transfer the business extrajudicially to a new firm owned by themselves, the fiduciary might be entitled to
recover the estate's share of the profits of the new firm earned to the time of the accounting.
§ 28.5. Challenging qualifications of estate fiduciary
Editor's Comment:
See Proof of Entitlement to, or Disqualification From, Status as Decedent's Personal Representative, 31 Am. Jur. Proof of
Facts 3d 433.
Cases:
Probate court acted within its discretion in removing decedent's mother as co-executor, where mother did not fully
comprehend duties and responsibilities of executor and may have been acting in manner detrimental to estate; mother had
insisted on valuing property of estate at far above appraised value, had requested that estate funds be kept in low-yielding
accounts, had requested to keep decedent's jewelry in her apartment safe instead of in safety deposit box, and had attempted
to purchase personal property from estate at substantially below appraised value. O.C.G.A. § 53-7-148. Nesmith v. Pierce,
226 Ga. App. 851, 487 S.E.2d 687 (1997).
The surviving husband of the decedent was properly removed as executor where (1) the husband was a suspect in the
murder of the wife, and (2) the husband refused to waive the decedent's attorney-client and psychotherapist-patient privileges
and thereby precluded them from testifying before a grand jury. District Attorney for the Norfolk Dist. v. Magraw (1994) 417
Mass 169, 628 NE2d 24, summary op at (Mass) 22 M.L.W. 1319.
The surviving husband would be removed from his appointment as executor of his wife's estate after he became a suspect
in the murder of his wife and then declined to waive the attorney-client privilege or psychotherapist-patient privilege on the
wife's behalf, thus preventing the wife's attorney and psychotherapist from testifying before the grand jury that was
investigating the wife's murder. District Attorney for Norfolk Dist. v. Magraw (1993) 34 Mass App 713, 616 NE2d 106,
summary op at (Mass App) 21 M.L.W. 3040 and review gr 416 Mass 1103, 621 NE2d 380, 22 M.L.W. 8, remanded 417
Mass 169, 628 NE2d 24, summary op at (Mass) 22 M.L.W. 1319.
It was not an abuse of discretion to find that a woman was unsuitable to act as the administrator of her husband's estate
where the wife and child of the husbands's first marriage were the only beneficiaries, where the only substantial asset of the
estate was a wrongful death claim, and where the husband was killed by the second wife's father who was subsequently
convicted of manslaughter. It was reasonable to conclude that the wife could not remain disinterested in litigation against her
father. Moreover the probate court found a great deal of animosity and mutual hostility between the wife and ex-wife making
it impossible for either to represent the interests of the other. Re Estate of Roch (1992) 81 Ohio App 3d 161, 610 NE2d 524.
Probate court did not abuse its discretion in denying application of decedent's surviving spouse to administer decedent's
estate where only purpose of administration would be to bring wrongful death action on behalf of estate against surviving
spouse's father, who had been convicted of manslaughter in connection with decedent's death. It was reasonable to conclude
that surviving spouse could not remain "reasonably disinterested" in litigation against her father; besides inherent conflict in
any intra-family lawsuit, any successful award from wrongful death action could have effect of depleting estate of father and
surviving spouse's ultimate inheritance. More importantly, decedent was survived by minor child born to him and his first
wife, and probate court found that there was great deal of animosity between surviving spouse and first wife who, as child's
guardian, was only other distributee of decedent's estate. Re Estate of Roch (1991, Wayne Co) 81 Ohio App 3d 161, 610
NE2d 524.
A disbarred attorney was properly terminated from his appointment as the personal representative of his former client's

estate where his disbarment had been based on dishonesty, fraud, deceit, and misrepresentation, and his conduct had been
described as "patently shocking" and "manifestly unconscionable"; however, a disbarred attorney is not per se disqualified
from serving as a personal representative. Parkman v. Hanna (1992, SC) 426 SE2d 743.
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§ 29. Actions available to fiduciary
At common law, real estate was not part of the probate estate subject to the payment of decedent's debts but descended
immediately to the heirs.[11] In most states real estate still occupies a unique position relative to the decedent's estate in that a
special proceeding is necessary to subject it to sale for administrative purposes.[12] It is probable, therefore, that in many
jurisdictions real estate would not be in the custody of the probate court merely by reason of the pendency of an
administration. Unless there were an immunity statute that would postpone foreclosure actions against a decedent's lands,
such a suit might be expected to occur shortly after the decedent's death if the decedent or the heirs have allowed secured
debts to become delinquent. In such cases, the fiduciary should institute the necessary action to subject the property to sale in
the probate proceeding at the earliest possible date. This would forestall the anticipated foreclosure by bringing the property
into the custody of the probate court. The fiduciary would then be able to control the sale to a much greater extent than he
would be able to do in a foreclosure action, and would have a better chance of realizing a surplus for the benefit of the
decedent's unsecured creditors and heirs.
Under the Uniform Partnership Act, the legal representative of a deceased partner may obtain a winding up of the
partnership in a judicial proceeding.[13] This provision, reinforced by general equitable principles, would permit the
fiduciary to seek the appointment of a receiver to wind up the partnership business and sell its property, should the surviving
partner mismanage the business, delay winding up, or perform any other act in derogation of the interests of the estate.
Cases:
Executor had standing to bring legal malpractice action claiming that attorney negligently failed to take action to protect
decedent's interest in her deceased husband's estate, where action for professional malpractice did not abate with death of
client or attorney, and action was considered "personal property" within meaning of survival act. Beastall v. Madson (1992,
3d Dist) 235 Ill App 3d 95, 175 Ill Dec 865, 600 NE2d 1323.
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§ 30. Arbitration of claims
It has been previously recommended that both parties review the statutory and case law of their jurisdiction to ascertain
the possibility of obtaining at least a de facto conclusion of the controversy in probate court.[14] It is further suggested that
submission to arbitration be considered.
At common law, an executor or administrator had authority to submit to arbitration claims by or against the decedent's
estate;[15] however, the fiduciary was exposed to potential personal liability for the deficiency if the results of the arbitration
proved to be less advantageous to the estate than a proceeding in court would have been.[16] Now, however, some states
have statutes providing for arbitration of claims in decedent's estates.[17]
The advantage to the fiduciary of an arbitration is the relative speed, ease, and economy of disposition of a contested
claim. In the case of the survivor, there is the added advantage that in an arbitration, the ordinary rules of evidence do not
apply.[18] In this way, an awkward "dead man" statute may be avoided.
VII. Selecting the Forum; Venue
§ 31. In general; jurisdictions in which action can be brought
The choice of jurisdiction is more restricted when the defendant is the fiduciary of a decedent's estate than when a living
person is being sued. Since the action is brought against the personal representative, who is a creation of the appointing
jurisdiction, suit generally cannot be brought in another state.[19] This is true even under statutes appointing a state official,
usually the Secretary of State, the agent of a nonresident for service of process, in certain situations. For example, statutes
that authorize service on nonresident motorists in suits arising from accidents within the state do not apply when the
nonresident motorist dies, and do not enable personal jurisdiction over the deceased motorist's personal representative to be
obtained by serving the Secretary of State, the legal theory being that death revokes the appointment.[20] The same reasoning
applies to the so-called "long arm" statutes, unless the statute is expressly made applicable to personal representatives of
decedents.[21]
There is a choice of territorial jurisdiction if the decedent owns items of property, the legal situs of which is distributed
through two or more states, necessitating ancillary administration and appointment of one or more fiduciaries. The claimant
is then free, laying aside other considerations, such as convenience and availability of witnesses, to choose the jurisdiction
that, for instance, has the most favorable "dead man" statute.
In instituting actions on behalf of the estate, the fiduciary is likewise generally restricted to the courts of the state of his
appointment;[22] if, for example, he desires to bring suit against the surviving motorist involved in an accident with his
decedent, and is required to sue in another jurisdiction in order to effect valid service on the defendant, he is obliged either to
be appointed himself, or to seek appointment of another, as ancillary administrator in the state of proper forum.
Territorial jurisdiction in partnership accounting matters is usually in the state having jurisdiction of the party in
possession of the partnership assets.
Cases:
Following transfer from county court, district court only had authority to hear and determine whether testator's son could
be removed as an independent executor of testator's estate, and did not have authority to appoint a successor representative
for the estate, in proceeding in which widow and daughters of testator filed application with county court to remove son as
independent executor and have a successor representative appointed, as county court's authority to transfer a case to the
district court included only the transfer of a contested matter, and issue of appointment of a successor representative for the
estate could not come before the county court or become a contested matter until a remand of the district's court's
determination of the petition to remove the existing executor. V.A.T.S. Probate Code, § 5(b) (2002). Krumnow v. Krumnow,
174 S.W.3d 820 (Tex. App. Waco 2005), reh'g overruled, (Oct. 11, 2005) and review denied, (Oct. 27, 2006); West's Key
Number Digest, Executors and Administrators 35(12).
Order of California court determining that decedent was domiciled in California at time of his death was entitled to full faith

and credit in subsequent probate proceedings brought by personal representative in Washington; California had jurisdiction to
admit decedent's will into probate, since decedent had residence in California at time of his death, and personal representative
in Washington had been given notice of proceeding to have California court determine domicile and an opportunity to be
heard. U.S.C.A. Const. Art. 4, § 1. In re Estate of Tolson, 947 P.2d 1242 (Wash. Ct. App. Div. 2 1997).
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§ 32. Venue
Since the venue of an action is largely controlled today by statute or constitutional provision,[23] the attorney is advised
to consult the law of his state in determining the county in which an action involving a decedent's estate may or should be
brought. However, perhaps some guidance can be given to aid the attorney in his research.
First, venue will depend upon whether the fiduciary or the survivor is the defendant in the action. Many statutes require
actions against a fiduciary in his representative capacity to be brought in the county in which the estate is being administered.
[24] On the other hand, venue of a transitory action brought against an individual in his own right is usually the county of his
residence, or, where more than one individual is sued, the county in which one of them resides, at least if he is a necessary,
and not merely a nominal, party to the litigation.[25]
Ordinarily, the foregoing principles will suffice to determine venue in an action by or against a decedent's estate in which
a money claim is at issue, or in which a partnership accounting, involving only personalty, is sought.[26] However, a
complication may be introduced into an accounting action where the partnership assets include, or consist primarily of, realty.
Venue statutes usually categorize actions involving title to realty as "local" actions, and require such actions to brought in the
county in which the realty is located.[27] However, many courts do not regard an action for dissolution of a partnership,
whose assets include realty, as one for recovery of real property or an estate therein; because the interest of the individual
partners is not considered to be property, the action is viewed as a transitory one.[28] However, the contrary view is also
held, particularly where the partnership dissolution and accounting action is primarly for the purpose of disposing of interests
in real estate, and settlement of partnership affairs is only an incidental objective; in such case, the venue statute relating to
"local" actions has been held to prevail over the statute pertaining to actions against fiduciaries.[29]
§ 33. Instituting action in federal court
Assuming that the requirements of the United States Constitution and of the rules relating to the minimum amount in
controversy are met, there is no reason why actions for or against a decedent's estate cannot be brought in the United States
District Court sitting in the district of the proper forum.[30] Nonresident claimants and ancillary administrators who represent
estates of nonresident decedents may choose federal court in the belief that they will be given more impartial treatment there.
Counterbalancing this factor, however, is the consideration that any action in which either party is a decedent's estate requires
a deeper involvement in state law, that is, probate law, than is otherwise the case. On the theory that the party choosing the
forum is well advised to select a court that is not unfamiliar with the applicable law even though that law might affect the
case only tangentially, it is wise to elect to use the state courts in most cases.
Cases:
In Dragan v. Miller (1982, CA7 Ill) 679 F2d 712, the heirs by intestacy of the decedent, who left a will that bequeathed
his entire property to the defendants who were not related to the decedent, brought an action alleging that the defendants had
improperly influenced the decedent to will his property away from the plaintiffs, and the court affirmed the District Court's
dismissal of the complaint on the ground that it was within the probate exception to federal diversity jurisdiction. Noting that
the probate proceedings had already ended and the plaintiffs did not want to enjoin or reopen those probate proceedings or
reach property in the hands of the state court, the court stated that in effect what the plaintiffs sought was a declaration that
the decedent's will was invalid and that his estate should pass under the Illinois intestacy statute, although this was not the
actual form of the action. The court stated that the action, regardless of how the plaintiffs labeled it, was one to declare the
will invalid because of undue influence and that while such an action could not interfere with the Illinois probate proceedings
since they had ended, if it were brought into federal court it would frustrate the objectives that lie behind the probate
exception.
In Rice v. Rice Foundation (1979, CA7 Ill) 610 F2d 471, 61 ALR Fed 524, the court, although remanding for
consideration of subject matter jurisdiction, noted that once a suit is characterized as not being "pure probate," there are two
different approaches employed by the federal courts to determine whether assumption of jurisdiction by them will result in
interference. The first view, according to the court, looks to the nature of the plaintiff's claim, and if the plaintiff's claim rests
upon an assertion that the decedent's will is invalid, the necessity of the federal court having to rule upon the validity of the
will would directly interfere with the state court probate. However, in situations where the plaintiff admits the will's validity
and asserts only a right to share in the distribution, then, the court stated, there is no direct impact upon, state probate of the
will. Thus, the court added, the plaintiff's possession as to the will's validity is the determinative factor under this approach.
The second approach is not dependent upon how the plaintiff characterizes his claim, the court observed, but rather
determines whether, under state law, the plaintiff's claim will only be cognizable by the probate court.
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VIII. Pleadings
§ 34. Complaint—Action for value of services
A complaint against the fiduciary of a decedent's estate must allege presentation of the claim within the time required by
the nonclaim statute.[31] If the action or suit is brought by the fiduciary, he must allege his representative capacity and
that he sues in such capacity.[32]
An action for reasonable value of services performed for a decedent by one who is neither a professional or business
person should probably not be stated in the form of an open account, since it is not likely that he has kept the type of
account required to support such an action.[33] By the same token, if the action is by a business or professional person
who keeps accounts in the ordinary course of his business or profession showing the services, for whom they were
performed, and the charges therefor, a form of pleading on an account is proper.
Items that should be considered in preparing a complaint against a decedent's estate for work and labor include the
following:
1. Name and address of claimant.
2. Name of decedent.
3. Date of death of decedent.
4. Plaintiff's relationship to decedent, if any.

5. Name and address of defendant fiduciary.
6. Date of appointment of defendant as fiduciary.
7. Name of court having jurisdiction of administration.
8. Administration case number.
9. Whether decedent died testate or intestate.
10. Date of presentation of claim to fiduciary or court.
11. Claim as presented.
12. Rejection of claim by fiduciary or court.
13. Date of rejection.
14. Description of services performed by plaintiff or decedent.
15. Whether services rendered at request of decedent.
16. Decedent's promise to pay for services (allege promise regardless whether express or implied).
17. Date of agreement entered into.
18. Whether agreement oral or written.
19. Plaintiff's performance of services in expectation of pay therefor or reliance on decedent's promise to pay.
20. Approximate date services terminated.
21. Reasonable value of services.
22. Prayer for judgment for value of services, interest and costs, and for the payment out of estate's assets.
A sample petition or complaint for the recovery of the reasonable value of services rendered to a decedent follows:
[Caption.]
[Introductory paragraph.]
1. The plaintiff, ____________[name], is a resident of the ____________[city, town, or other] of ____________,

County of ____________, State of ____________.
2. The defendant, ____________[name], is the duly appointed, qualified, and acting executor of the estate of
____________[name], deceased, late of ____________[name of city, village, or other], ____________[name of state],
having been appointed executor by order of the Probate Court of ____________ County, on ____________, 20___.
3. On or about ____________, 20___, the said ____________[[decedent] requested the plaintiff, who was in no way
related to decedent, either by blood or by affinity, to reside at his home as his housekeeper, and the plaintiff agreed to do
so. Said decedent promised and agreed that in consideration of plaintiff performing services as his housekeeper, as
hereinafter set forth, and in further consideration of her continuing to live with him and caring for him, she would be
granted free room and board and that, in addition, decedent would, on his death, make suitable reimbursement in his Last
Will and Testament for plaintiff's said services. In reliance upon said agreement, plaintiff, on or about ____________,
20___, left her then residence and moved into said decedent's home.
4. From ____________, 20___, to and including ____________, 20___, plaintiff performed the following services for
the said ____________[decedent], at his express request, and pursuant to the agreement hereinabove set forth:
(a) All cooking, housekeeping, laundry, ironing, and all other housekeeping services necessary to maintain a home in
livable condition.
(b) Nursing services, including but not limited to, administration of medicine, assisting decedent in moving about, and
dressing and bathing him.
(c) Gardening services, including, but not limited to, planting flowers, cultivating, weeding, and watering flower beds,
and raking leaves.
(d) Making deposits of money and checks to said decedent's checking and savings accounts.
5. Said services were performed by plaintiff under and by virtue of her agreement with said ____________[decedent], as
aforesaid, and, at all times herein mentioned, said decedent knew plaintiff was performing said services under and by
virtue of said agreement, and in reliance upon decedent's promise that she would be suitably compensated therefor in his
Last Will and Testament.
6. On numerous occasions during said period in which the said services were being performed by plaintiff, decedent
reaffirmed his said agreement to compensate plaintiff for the services she had performed, was then performing, and
would continue to perform and, at all times herein mentioned, plaintiff relied on his said agreement to compensate her
and performed the services as hereinabove set forth, all in accordance with said agreement.
7. ____________[decedent] died on ____________, 20___, and his Will was admitted to probate on ____________,
20___, by the Probate Court of ____________ County, ____________, and was recorded on the same date with the
Clerk of said Court.
8. Decedent failed to make any provision in his said Will for compensation to plaintiff for the services rendered by her to
decedent, in breach and violation of decedent's aforesaid promise and agreement. Plaintiff accordingly became and is
entitled to receive from decedent's estate payment in the amount of the reasonable value of said services.
9. The reasonable value of the services performed by plaintiff for decedent, pursuant to and in reliance upon the
agreement between them, as hereinabove alleged, is ____________ Dollars ($____________).
10. No part of the said sum of ____________ Dollars ($____________) has been paid to plaintiff, and said sum is due
and owing from decedent's estate to plaintiff, together with interest thereon to the date of payment.
11. On or about ____________, 20___, plaintiff presented her claim in writing to the defendant as executor of the estate
of ____________, deceased, a copy of which claim is hereto attached, marked "Exhibit A," and made a part hereof by

reference.
12. On ____________, 20___, defendant, as such executor, rejected plaintiff's said claim in its entirety, and notice in
writing of such rejection was received by the plaintiff from defendant on ____________, 20___.
WHEREFORE, plaintiff prays that judgment be rendered in her favor and judgment against the defendant as executor of
the estate of ____________, deceased, in the sum of ____________ Dollars ($____________), together with interest
thereon and her costs herein expended, and that such judgment be ordered paid by defendant from the assets of the estate
of ____________, deceased, in the due course of the administration of said estate, and that she be granted such other and
further relief to which she may be entitled in the premises.
§ 35. Complaint—Action for partnership accounting
A petition or complaint for a partnership accounting should state facts that will invoke equity jurisdiction. Of course, an
allegation that a partnership exists or existed is necessary, and, since the partners are in a fiduciary relationship toward
one another, this is probably sufficient to invoke the chancery powers of the court.[34]
The complaint must allege the death of a partner on a certain date, from which event the dissolution of the partnership
resulted. If the business of the partnership is being continued, an allegation of that fact seems to be required.[35] The
complaint should, of course, contain statements that there are amounts due the plaintiff for his share of the partnership
capital and that the plaintiff has demanded an accounting, which was refused, or, if not refused, that the accounting
rendered was erroneous.
Items to be considered in preparing a complaint or petition for a partnership accounting include the following:
1. Partnership name.
2. Location of place of partnership business.
3. Nature of partnership business.
4. Names and addresses of all partners.
5. Date of death of deceased partner.
6. Name and address of fiduciary of deceased partner's estate.
7. Date of fiduciary's appointment.
8. Name of appointing court.
9. Copy of partnership agreement, if written.
10. Summary of partnership agreement, if oral.
— Date of agreement.
— Proportionate interests of partners.
— Provision in agreement, if any, as to duration or dissolution of partnership.

11. Whether partnership possessed any good will.
12. Whether partnership business is being carried on, and, if so, by whom.
13. Identity of person in possession of partnership assets.
14. Whether an accounting has been demanded.
— Date of demand, if made.
15. Whether an accounting has been rendered.
16. Defendant's refusal to permit plaintiff or his accountant to have access to partnership records and accounts.
17. Prayer for dissolution, accounting, access to partnership records and books of account, and other appropriate relief.
In the following sample complaint, the suit for partnership accounting is brought by the executor of the estate of a
deceased partner against the surviving partners, who are continuing the partnership business:
[Caption.]
[Introductory paragraph.]
1. Plaintiff, ____________[name], is the duly appointed, qualified, and acting executor of the estate of ____________,
deceased, who died testate on ____________, 20___, a resident of the City of ____________, County of ____________,
State of ____________, having been appointed as such on ____________, 20___, by order of the Probate Court for
____________ County, in said State.
2. Defendants ____________[name] and ____________[name] are residents of said County and State, and, as is more
fully hereinafter alleged, were engaged in a partnership with decedent.
3. On or about ____________, 20___, said decedent entered into a written partnership agreement for an indefinite term
with the defendants. Said partnership was conducted under the assumed name of ____________, and the partnership
business was ____________[specify type of business]. A copy of the partnership agreement is attached hereto, marked
"Exhibit A," and made a part hereof by reference.
4. By virtue of said agreement, plaintiff's decedent acquired a ____________[percentage] interest in said partnership,
and continued to hold such ____________[percentage] interest at the date of his death.
5. Defendants have assumed control of all of the partnership assets and are continuing the partnership business for their
own accounts without making any provision for the payment to plaintiff of the interest of plaintiff's decedent in said
partnership.
6. On ____________, 20___, plaintiff made demand upon the defendants for a complete accounting of the partnership
assets and of the profits thereof since the date of the last accounting on ____________, 20___, but defendants have ever
failed and refused to render such an accounting.
7. The defendants have violated Article ____________ of said partnership agreement, "Exhibit A," in that they failed to
cause an audit of the books of the partnership to be made, and to make an inventory for the purpose of determining the

net worth or value of the decedent's interest in the partnership within ____________ days after the death of plaintiff's
decedent, as required by said Article.
8. Plaintiff has requested the defendants to permit a certified public accountant of his choice to make an examination of
the books of account, bank records, and other records of the partnership in order to determine the value of plaintiff's
decedent's interest in said partnership and whether true and accurate accounts have been kept in accordance with the
provisions of said partnership agreement, but defendants have refused to permit plaintiff or his accountant to examine
said books and records.
9. During the entire period of its existence, the partnership carried on the business at ____________[address], in the City
of ____________, County of ____________, [name of State], where defendants still continue said business. During its
existence, said partnership acquired a reputation for efficient, friendly, and expert service, which resulted in a growing
custom and clientele in the neighborhood of ____________[name of city] and its environs. Such goodwill of the
partnership constituted an extremely valuable asset as of the date of the decedent's death, and plaintiff is entitled to have
the value thereof appraised and included in computing decedent's share of the partnership assets.
10. Upon information and belief, plaintiff alleges that, since the last accounting between the parties as alleged in
Paragraph 6 above, and up to and including the present time, defendants have earned substantial profits in the operation
of the partnership business. Plaintiff alleges that he is entitled to receive the estate's aliquot proportion of said profits to
the date of the death of plaintiff's decedent; that, further, plaintiff is entitled to decedent's share of profits earned since
decedent's death, or, in the alternative, to interest from that date to the date of decree herein upon the value of decedent's
interest in the assets of said partnership. However, plaintiff prays that he be permitted to defer making an election
whether to receive such profits or interest until an accounting is had as herein prayed.
WHEREFORE, plaintiff prays as follows:
(a) That the defendants be required to allow plaintiff, his agents, accountants, and attorneys to have access to all of the
books of account, documents, agreements, and all other data reflecting the net worth, including the good will, of the
business of the partnership as of the date of decedent's death and bearing on the net profits thereof from and after the date
of the last accounting between defendants and plaintiff's decedent, as alleged in Paragraph 6 above;
(b) That defendants afford plaintiff's appraisers access to all assets of the partnership, for the purpose of valuing the same
as of the date of said decedent's death;
(c) That the value of plaintiff's decedent's interest in the partnership, including the good will thereof, as of the date of his
death and the net profits of the partnership since such date be ascertained by this Court;
(d) That this Court also find and determine the amount of the net profits earned by the partnership from the date of the
last accounting between defendants and decedent to the date of decedent's death, and the amount of the net profits earned
by the defendants in the operation of the partnership business from the latter date to the date of decree herein;
(e) That defendants be ordered to pay over to plaintiff the value of decedent's interest in the partnership as of the date of
his death, together with his proportionate share of the net profits earned by the partnership from the date of the last
accounting between defendants and decedent, to the date of decedent's death;
(f) That defendants be further ordered to pay over to plaintiff the proportionate share of decedent in the net profits earned
by defendants since decedent's death, or in the alternative, at plaintiff's option hereafter to be exercised, the interest on
the value of decedent's interest in the partnership assets at the rate of ____________ percent per annum, from and after
the date of decedent's death to the date of payment;
(g) That plaintiff be awarded his costs sustained in prosecuting this action;
(h) That this court grant plaintiff such other and further relief in the premises as this Court may deem just and equitable.
§ 36. Answer—Action for value of services
The occasions for the use of an affirmative defense in an action for personal services seem to be rare. A general denial
alone will put at issue all of the following facts: performance of the services, performance at the request or instance of the
decedent, that the services were performed in the expectation of payment, the value of the services either by reason of
quantity or quality, and proper presentation of the claim for allowance by the fiduciary or the Court.[36]
Among the affirmative defenses, payment and accord and satisfaction are those most likely to be suggested by the facts.
The defense of payment should be pleaded only if the fiduciary is able to show substantial transfers of money or property
to the claimant during the decedent's lifetime. A defense quite similar to that of payment presents itself when it appears that
the services were relatively insubstantial, for example, of the companion variety, so that it can be argued that the claimant
was fully compensated by the room and board he received during his tenure. This can be put in issue by pleading payment,
but it is also suggested that this state of facts raises a question as to whether the arrangement was not for the mutual benefit of
the decedent and the claimant, so that there was no expectation on the part of the decedent to pay or of the claimant to receive
anything of value beyond the benefits of room and board. Thus, these facts can be brought out under a general denial that
puts at issue the implied contract pleaded by the claimant. The advantage of concealing, at the pleading stage, at least, the
direction the defense will take is obvious. On the other hand, there may be some danger in failing to plead payment even in
the circumstances posited, since claimant's proofs at the trial may clearly show an agreement to pay for his services
notwithstanding their relatively trivial nature.
The defense of accord and satisfaction may arise where another proceeding involving appointment of a fiduciary
intervenes between rendition of the claimed services and the death of the person for whom they are claimed to have been
rendered. In an actual case, a guardian was appointed for an old man who owned some rental properties that another man
claimed to have managed. The manager filed a claim for the services in the guardianship proceeding, which the guardian
settled. An ironclad release was prepared by the guardian's counsel and executed by the claimant, so that no litigation would
result after the ward died. However, it is conceivable, and perhaps even probable, that, if the release had not been so strongly
worded, litigation would have been instituted by the claimant after the ward's death, and the defense of accord and
satisfaction would have come into play.
The availability of the general statute of limitations as a defense depends upon several factors. If the services were
performed under one entire agreement, the statute would not defeat recovery for services performed prior to the beginning of
the period, if performance continued to a time within the statutory period.[37] If the claimed agreement stipulated payment
for the services by a legacy or devise under the recipient's will, it is likely that the action will not accrue prior to the
recipient's death, either intestate, or with a will that leaves claimant nothing. Obviously, the law of the forum with respect to
the time of accrual of the action will have considerable bearing upon this question. Different results could be reached
depending upon whether the action accrues when the services terminate, when the recipient dies, or when a fiduciary is
appointed so that a defendant amenable to action is in existence.[38]
The following are some of the facts that merit the attention of the fiduciary's lawyer when preparing his answer to a
complaint for services:
1. What services were performed.
2. Date or dates the plaintiff claims to have furnished services.
3. Date the services terminated.
4. Value, if any, received by claimant during period of performance or after it terminated.

5. If value received after termination, whether there was an accord and satisfaction.
6. Relationship of claimant to recipient.
7. Whether contract was in writing.
8. Date of recipient's death.
9. Date of probate of will, if any.
10. Whether other wills are in existence.
11. Date of fiduciary's appointment.
12. Date claim was presented.
13. Date claim was rejected.
§ 37. Answer—Action for partnership accounting
In a suit for partnership accounting, a general denial puts at issue the existence of a partnership, the failure of the
defendant to make a proper accounting, or defendant's refusal to allow plaintiff to have access to the partnership books and
records.[39]
Any plea in the nature of avoidance or justification of any act or failure to act on the part of the defendant should, of
course, be specially pleaded. For example, if the partnership contract contained a provision that the profit and loss statements
and balance sheets prepared by the partnership accountants should be binding upon the partners and their successors, this
should be alleged specifically in the answer.
The possibility of a setoff or counterclaim arising out of other transactions between the decedent and the surviving
partners should be investigated.
Among the specific matters that should be considered by the lawyer defending a suit for partnership accounting are the
following:
1. Whether the business relationship was founded upon an agreement in writing.
2. If so, whether such agreement makes any provision for settlement of the accounts of the partners on dissolution of the
firm.
3. Whether the agreement contains a provision for payment to the deceased associate's representative of his share of the
firm's assets and profits.
4. Whether the agreement prescribes a method of evaluating the firm's assets.
5. The amount, if any, of the capital contribution to the business made by the plaintiff.
6. Any expertise or special knowledge contributed by the plaintiff to the business.
7. Whether the plaintiff contributed to the business any physical assets, such as offices, buildings, or equipment already
owned by him.
8. If so, whether these were held in the partnership or in his separate name.
9. Whether any loss years occurred.
10. If so, whether plaintiff's account was charged with any part of such losses.
11. Other agreements involving decedent and the opposing party or partner.
12. Records of all financial dealings between the parties.
§ 38. Motions and demurrers
Unless a pleading is so vague and unclear that it is impossible to prepare a defense or reply, or if the response to it would
give the opposition carte blanche to prove almost any basis for recovery or defense, a motion will, at best, gain time for the
lawyer and, at worst, educate the opponent. Mere technical motions on the part of the fiduciary addressed to the failure of the
pleader to provide necessary information to enable preparation of a defense are particularly futile, since the fiduciary, by
reason of the requirement of presentation of a claim and his right to obtain specific information of the claimant, ought to have
a good idea of the basis for the claim by the time the controversy arrives at the litigation stage.
In view of the fiduciary's interest in completing his administration at the earliest possible date, all dilatory pleadings
should be eschewed. This is particularly true of motions directed to the validity of service of summons. It is submitted that
the fiduciary is better advised to enter his appearance by appropriate pleading.
On the other hand, a motion or demurrer objecting to the territorial jurisdiction of the court would be in order if his
acquiescence would result in a case being tried in a jurisdiction foreign to the residence of the fiduciary or his decedent, with
attendant inconvenience and possible antipathy to his defense. A motion or demurrer directed to any defect in jurisdiction
that would not be cured by appearance and that would, therefore, prevent a binding determination of the cause on its merits
should be pressed, since an ineffective judgment could occasion greater delay. If the claimant insists on litigating, it is wise to
get him into the proper court as soon as possible.
A motion or demurrer directed to the substance of his adversary's pleading should be filed by the fiduciary only if it can
reasonably be foreseen that it will finally dispose of the action. If it is known that there is a flaw in the claimant's cause that is
an absolute bar to his recovery, a demurrer is in order if procedurally available; but if, through lack of expertise in the law,
claimant's lawyer has failed to allege a fact that may be available to him, it is the wiser policy to await his proof, rather than
to educate him concerning the deficiency. Generally, an objection based on failure to prove cause of action can be made at
any time in the course of the proceedings, including appeal, so that nothing is lost by refraining from attacking the pleading.
Many jurisdictions have saving statutes giving additional time to refile an action when the original lawsuit brought
within the limitations period is dismissed other than on the merits.[40] If the saving statute is interpreted to apply to the
period for bringing action specified in the nonclaim statute, the estate has to be kept open until the saving period has expired.
This is an additional reason for the fiduciary to resist the temptation to make a motion or demurrer that will result in a
nonsuit.
Occasions in which the use of the motion for summary judgment is appropriate seem to be rare. If the provable facts and
the applicable law are in such a state that they are not subject to honest dispute, the case should not be at the litigation stage
anyway. On the other hand, in many cases, the fiduciary's defense will be grounded on the expectation that the claimant will
be unable to prove his case because of the restrictions of the "dead man" statute. If the claimant is disqualified from
testifying, he probably will also be disqualified from making the affidavit in opposition to a motion for summary judgment
usually required by the applicable statute or court rule.[41] In such event, the motion may dispose of the litigation on the
merits, and the fiduciary will be warranted in filing it.
Cases:
A personal representative was not entitled to an injunction, where the personal representative sought to enjoin the
decedent's widow from transferring, wasting and/or dissipating the decedent's property interests without a court order, but
these allegations were based on past actions, and the personal representative did not identify particular assets that were
threatened or the manner in which the widow was likely to threaten the assets as necessary to demonstrate irreparable harm to
the estate. Yerex v. Durzo (In re Estate of Yerex) (1995, Fla App D4) 651 So 2d 220, 20 FLW D 544.
Genuine issue of material fact as to whether decedent's signature was forged on a document forgiving a debt precluded
summary judgment against executrix in her suit against her nephews to collect on a bill of sale to secure a debt; the executrix
testified that she believed the decedent's signature was a forgery, and that he had not intended to forgive the debt. Ham v.
Ham, 257 Ga. App. 415, 571 S.E.2d 441 (2002); West's Key Number Digest, Judgment 185.3(2).

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IX. Settlement
§ 39. In general
It may be stated as a general rule that in almost every case in which a decedent's estate is financially involved, neither
side can afford to litigate. This rule will not, of course, apply to tort claims against an estate for which the decedent was
covered by liability insurance, and, in which, therefore, a recovery would have no financial impact on the estate.
In addition to the uncertainties inherent in any litigation, the factors that will render settlement of cases involving
decedents' estates imperative are as follows:
1. The character of the estate. The estate is not a real person but rather a fictitious entity that merely acts as a conduit of
assets and rights to the real parties in interest. If the estate is solvent, the interested parties opposing the claimants are the
heirs or beneficiaries who have not yet received their distributive shares.[42] It should be easier to forgo what one does
not yet have than to pay from assets already in hand. Furthermore, the loss of each heir or residual beneficiary will be
inversely proportionate to their number, and the loss of each party may therefore be decreased by being diluted.
2. The need for speed. The probate statutes are generally designed to promote early settlement of estates. Litigation over
a substantial claim may well delay full distribution to the interested persons, creditors, heirs, fiduciaries, and attorneys. In
every case, the recipients are better advised to permit settlement of a disputed claim and to take a lesser amount so as to
obtain immediate use of the money, rather than to wait a year or two more for what may turn out, after all, to be only a
slightly greater amount.
3. Tax problems. If an inheritance or estate tax under either state or federal law is due, an allowed claim will ordinarily
reduce the basis of the tax. This means that the heirs will, in effect, be paying the settlement at a discount of the loss to
themselves equal to the reduction in tax. In addition, tax laws always provide a deadline for payment, with a penalty for
late payment and, sometimes a discount for early payment. The fiduciary does not appear to be permitted to claim a
disputed debt as a tax deduction, while at the same time rejecting it as a claim against the estate. Unless, therefore, the
applicable tax law permits a redetermination of the tax on establishment of a claim initially deemed invalid, the fiduciary
will be required to choose between timely filing of the tax return or postponing the filing until final determination of the
claim, with probable loss of discount and assessment of penalty and interest.
4. Priorities and insolvency. Many states classify claims for purposes of order of payment. Allowable administrative
costs, including the fiduciary's compensation and attorney fees, are always high in the scale of priority. The general,
unsecured claimant, who is last in the order of priority of claims, should therefore consider carefully the advisability of
pursuing his claim to the ultimate limit, since even a judgment for the full amount would be only a pyrrhic victory if the
estate lacked funds to pay it after satisfying the demands of preferred claimants.[43]
These are the primary considerations that may induce both sides to settle. There may be additional factors peculiar to
each case. For example, if the claimant is also a legatee, establishment and payment of the full claim may require abatement
of all or part of the legacy. It will then be foolish to insist on the full amount, particularly if the claim is of such a nature—for
example, for services—that recovery on it will result in taxable income to the recipient. Even if the claimant is not a legatee,
the taxability of the recovery, and its further reduction by the amount of the nonreimbursed costs of litigation, may well offset
much, if not all, of the benefit of a larger cash award. Examining the other side of the same coin, if the attorney for the estate
is also an heir or legatee, the additional (taxable) award of attorney fees that he may receive in consideration of his services in
contesting a claim may result in reduction of his (tax-free) distributive share in the estate.
Cases:
Issue of punitive damages was properly submitted to jury in decedent's sons' action against attorney for conspiring with
decedent's surviving spouse to deprive sons of their rightful share of wrongful death settlement, given evidence that attorney
assisted surviving spouse in dividing proceeds of wrongful death settlement in spite of surviving spouse's clear conflict of
interest, which showed conscious indifference to consequences. O.C.G.A. § 51-4-2. Home Ins. Co. v. Wynn, 493 S.E.2d 622
(Ga. Ct. App. 1997).
Whether surviving spouse breached her fiduciary duty to decedent's sons from former marriage in connection with
settlement of wrongful death action by simultaneously representing sons' interests and her own, competing, interests, and by
allocating onehalf of the settlement proceeds to claims in which she was sole beneficiary, was question for jury in sons'
action against surviving spouse. O.C.G.A. § 51-4-2. Home Ins. Co. v. Wynn, 493 S.E.2d 622 (Ga. Ct. App. 1997).
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§ 40. Procedure and tactics
As indicated previously, the requirements of presentation and allowance provide the opportunity for the discussion and
exchange of information between the parties essential to any bona fide attempt to compromise. The fiduciary will have the
right to request more detailed information about the claim in order to make a sensible judgment as to its allowance or
rejection. On the other hand, information about the amount of assets in an estate is made available to the claimant from the
records filed with the probate court. The amount and nature of the other claims may also be obtainable from that source or, if
not, constitute a legitimate subject of inquiry directed to the fiduciary or his counsel. Indeed, if the fiduciary surmises that his
adversary is not aware of the unfavorable financial condition of the estate, he may be well advised to take the initiative in
furnishing that information.
Both sides should approach the issue with the expectation that a reasonable solution is possible. The claimant should
present the claim in such a way that it can be allowed. Presentation should not be merely a necessary formality in preparation
for filing suit. Again, as stated before, the fiduciary should never reject a claim summarily, even if it is so unfounded that a
just compromise is out of the question, if only because an opportunity to gather further useful information may thereby be
lost.
Most cases are settled as well as won on the facts, rather than on the law. It is, therefore, suggested that settlement
discussions be concerned with the dollars and cents benefit to be gained by both sides, rather than with the legal issues
involved. This is particularly true of legal difficulties that either side may have with respect to proof. For instance, many
lawyers are unfamiliar with the technical intricacies of the "dead man" statute. If the lawyer for the fiduciary has reason to
believe that the opposition will have difficulty proving his case without the claimant's testimony and that the other lawyer is
not fully aware of the limitations the "dead man" statute puts on claimant's testimony, he would be foolish to call attention to
the problem in order to obtain an "edge" for settlement purposes. By the same token, a claimant on a note may not wish to
remind counsel for the fiduciary that, if he fails to put the validity of the decedent's signature on the note in issue, under the
Uniform Commercial Code[44] execution of the note will be deemed admitted. Such strategy is particularly in order if
defense counsel seems to be placing undue reliance on possible difficulties of proof resulting from application of the "dead
man" statute.
Since, therefore, there are ordinarily enough valid, factual points to be made on both sides in settlement negotiations to
obviate the need of educating the opposition as to the law, it is suggested that legal points be made only after it becomes
obvious that the other side is inclining strongly toward compromise, and needs only some additional impetus to commit itself.
§ 41. Illustrative settlement

The following example of the desirability of settling a questionable claim is based on an actual, litigated case:[45]
The decedent gave a close business associate a promissory note for $50,000. The payee claimed that the note was in
consideration of services rendered, but the executor believed that the note was actually intended as a testamentary
disposition, and was invalid for that reason. At about the same time that the note was signed, the decedent made his will, by
which he bequeathed the payee $150,000 in cash.
A claim was presented, and settlement was discussed. The problem was that the estate, while valued at about $600,000,
lacked liquidity, its quick assets being only $150,000, while there were unquestioned claims of $200,000 over and above the
claim on the note in question. The other assets consisted of $350,000 worth of real estate and $150,000 worth of stock in a
wholly owned corporation, which together generated the other assets in the estate.
The will provided for the maximum marital deduction computed by formula in an item of the will drafted separate from
and prior to the residual clause. Under the law of the jurisdiction, the $150,000 legacy to the claimant and the marital
deduction legacy were both general legacies and would abate equally, if the residual estate was not sufficient to pay debts,
costs, and taxes.
Based upon the gross valuation of $600,000, the following distribution on the claimant's legacy could be anticipated, if
his claim were paid in full:
Claims, including note claim in full $250,000
Federal estate tax 21,000
State inheritance tax 10,000
Costs of administration 30,000
Total $311,000
The marital deduction legacy is calculated at $160,000, one-half of the adjusted gross estate of $320,000 ($600,000
minus $280,000 for debts and costs). Total general legacies are thus $310,000. The residual estate abates entirely, and there
would be $289,000 to pay $310,000 of legacies. The claimant's legacy would be reduced to about $135,000. He would thus
receive a total of $185,000, including 100 percent on his note claim.
This is the gross figure, however, and does not take into consideration the federal income tax consequences of a full
recovery on a note, the consideration for which was the rendering of personal services. The claimant was married but had no
children. His annual salary in his employment was $20,000. His income tax would therefore be about $24,500 for the year in
which he would receive payment in full of his $50,000 claim. His tax on $20,000 would be $2,700, so that his net additional
tax would be $21,800. His net recovery after taxes would therefore be $163,200.
On the other hand, if the claim is settled for as little as $20,000, the abatement of his legacy would be less, according to
the following computation:
Total claims including $20,000 settlement $220,000
Federal estate tax 25,000
State inheritance tax 11,000
Costs of administration 30,000
Total $286,000
There would thus be $325,000 of legacies (marital deduction legacy in amount of $175,000 and claimant's legacy in
amount of $150,000), in payment of which $314,000 would be available, so that the claimant would receive about $145,000
on his legacy. He would thus receive $165,000 total gross return, including the $20,000 settlement. His additional income tax
would be $6,700, so that his net recovery would be $158,300.
The claimant thus could expect to sustain a real loss of only $5,000 by settling his claim for $30,000 less than the full
amount. On the other hand, the estate could expect to save perhaps a year's time in completing the administration and perhaps
$2,000 to $4,000 in additional legal fees that might be incurred in litigating the claim. Further, the widow would gain about
$15,000 in valuation equity on her marital legacy. In addition, and perhaps most important, the estate could possibly avoid
sale of its most valuable asset, the stock in the closed corporation.
X. Discovery
§ 42. Interrogatories and depositions—Parties
The normal discovery procedures directed to the adverse party are available in the types of actions under discussion.[46]
However, if the lawyer for the fiduciary is relying to any substantial degree on inability of the survivor to prove his case
because of the prohibition of the "dead man" statute, he must be fully conversant with the law of his jurisdiction relating to
waiver, discussed above.[47] If the law on that subject is unsettled, he would be wise to refrain from taking the survivor's
deposition and from posing interrogatories or requests for admissions. If the disqualification is partial, so that pretrial inquiry
into protected matters waives the statute, counsel must be sure what testimony is prescribed by statute. For instance, in those
states that bar testimony by the survivor that his services, for which claim is made, were performed with the knowledge of the
decedent, since that would imply a promise on the part of the decedent to pay for them and thus be evidence of a
"transaction,"[48] a line of questioning by the fiduciary concerning the work done would be perilous indeed.
The above example suggests that it is imperative that the fiduciary's lawyer make a thorough investigation of the case,
rather than relying excessively on discovery procedures. If there is no way to prove the estate's cause of action or to establish
its defense without the testimony of the survivor, or if reliance is to be placed on the survivor's lack of credibility or bad
character, his deposition should by all means be taken. Obviously, though, before risking the waiver, it is advisable to exhaust
all other possibilities of proof and to have some reasonable basis for judgment of the survivor's probable behavior as a
witness.
Since the fiduciary is only a nominal party representing the estate and is not a real party in interest, the claimant's lawyer
will have less frequent occasion to take his deposition or to direct interrogatories to him than would the fiduciary's lawyer
vis-a-vis the surviving party. Moreover, the "dead man" statute in some jurisdictions disqualifies the fiduciary as well as the
survivor, and interrogation of the fiduciary may have similar consequences with respect to the matter of waiver.[49] Where
that is true, and the fiduciary may have some information that is vital, and the rest adverse to the prosecution of the claim,
claimant's attorney must, similarly, weigh the possibility and effect of waiver against the need for obtaining the information
from that source.
Cases:
The personal representative of an estate waived his Fifth Amendment claim that a truthful accounting would incriminate
him, where the representative knowingly accepted the appointment which statutorily requires the accounting, and made
numerous representations and responses concerning the accounting without raising the privilege. Goethel v. Lawrence (1992,
Fla App D3) 599 So 2d 232, 17 FLW D 1279.

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§ 43. Interrogatories and depositions—Witnesses
In an action for personal services, the parties will both draw many or most of their witnesses from the same sources:
neighbors, friends, and relatives of the deceased. If the case has been properly investigated by both sides, both lawyers will
have interviewed many of the same people, so that each will have a fairly good idea of who the other's witnesses are and what
they will say. The need to take depositions of the opposition's witnesses will therefore not be as pressing as might otherwise
be the case.
Almost the exact opposite is ordinarily true of partnership accounting suits involving a decedent's estate. Here, both sides
will rely almost entirely on third-party witnesses, particularly expert witnesses, to whom the adversary will not have ready
access, to establish values and to systematize and make intelligible the mass of financial records and data that will be the raw
material of proof for both sides. It should be expected that the variances in proof between the parties will not be in the
identity of the financial records offered, but in their interpretation and the conclusions drawn from them, as well as in their
respective appraisals of asset values. Therefore, each side will probably find it necessary to examine the opponent's experts
prior to trial. If the experts have made written reports, the opposing lawyer may wish to test on deposition the factual basis of
the report, the soundness of the witness' analysis and judgment in moving from the raw facts to the conclusions contained
therein, the expert's professional standing, and his experience in the particular field involved.
§ 44. Motions for production and inspection
In an action at law for a money judgment by a survivor against a decedent's estate, the plaintiff will probably not rely to
any significant extent upon documents in the possession of the fiduciary. This seems to be particularly true in the case of an
action for personal services, wherein recovery is not even based on a formal, let alone a written, contract. However, as was
mentioned previously,[50] where the claim is for personal services for which compensation was assertedly promised by the
decedent in the form of a legacy, the plaintiff may wish to ascertain whether the fiduciary has in his possession prior wills of
the decedent in which claimant was named as a beneficiary, to establish that decedent intended to compensate him.
If there is a defense of payment or accord and satisfaction, plaintiff should demand whatever documents defendant may
rely upon to substantiate the defense.[51] In an action for work performed and materials furnished in repairing or
constructing a building the defendant should demand copies of invoices and delivery slips for materials. This is particularly
true when the action seeks foreclosure of a mechanic's lien, to determine whether the notice and filing requirements of the
mechanic's lien statute were timely complied with.
When the suit is by the fiduciary of the estate of a deceased partner against surviving partners for an accounting, the
plaintiff should request inspection of the partnership books and copies of all balance sheets and profit and loss statements,
regardless whether the survivors are continuing the business or are winding it up. Of course, it may also be necessary to
demand the underlying documents and financial data, such as canceled checks, bank statements, invoices payable and
receivable, and correspondence.
As was mentioned in the preceding section, both sides to a partnership accounting should demand any written appraisals
or accountant's reports that might be relied upon by the opposition, either as evidence or as the basis for direct examination of
the expert. This should be done in sufficient time to permit analysis of the report and the taking of the expert's deposition,
particularly since, in some states, a "composite" report, made by an expert from information furnished to him by others, may
be admitted into evidence when testified to by the expert, without verifying the reliability of the underlying data, if, in the
opinion of the judge, no substantial injustice will thereby be done to the opposite party.[52]
Cases:
In proceeding in which surviving spouse sought discovery of estate-related information to determine whether estate had
sufficient assets to pay amount bequeathed to her, she was entitled to discovery of employment records between or among
decedent, his son and other attorneys, and to accounting records of decedent's law practice, since she was entitled to
determine value of law practice and capacity of estate to satisfy her claim against it; however, her discovery of law office
files would be limited to retainer agreements and outcomes of cases since such files were confidential. In re Estate of Hall
(1994, 3d Dept) 204 AD2d 785, 611 NYS2d 697.
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XI. Trial Preparation
§ 45. Planning plaintiff's case—action for personal services
Where the action is for services rendered to the decedent during his lifetime, the necessary elements of proof are (1) the
extent and nature of the services performed, (2) facts establishing or warranting an inference of a promise to pay on the part
of the decedent and an expectation of pay on the part of the survivor, and (3) the reasonable value of the services.[53]
It is suggested that, for purposes of clarity, the presentation of plaintiff's proof of the foregoing substantive requirements
should follow the indicated sequence, since that sequence ordinarily conforms to the chronology of events in this type of
case. Ordinarily, the promise to pay would come before the performance of the work in point of time, but, in cases of this
nature, there is usually no express offer to pay preceding performance, or, if there was any such express promise, the
unavailability of testimony concerning it from either party, because of the death of one and the statutory bar applicable to the
other, would make it difficult to prove.
The central fact upon which all else in plaintiff's case depends is his performance of the services. It is important,
therefore, to put the best witness as to the nature and extent of the services on the stand first while the jury is relatively fresh
and attentive, and before the objections of counsel, arguments as to the law, and, in general, unremitting talk have taken their
toll. The best witness is the plaintiff; he should be examined first concerning the work performed and any other matters as to
which he is not disqualified to testify. The jury will be anxious to assess him, and if he makes a good impression
immediately, they will be more inclined to pick out and give credence to anything in the subsequent testimony that will be
favorable to him.
Even if the applicable "dead man" statute imposes an absolute disqualification, and the disqualification has not
previously been waived by the defendant, counsel should consider offering the plaintiff as a witness anyway. It is possible
that the defendant will waive the statute at trial by not properly objecting to the plaintiff's testimony. On the other hand, if an
objection is made, the defendant bears the onus of preventing plaintiff from testifying and of appearing to conceal
information from the jury. The jury should not be permitted to ponder throughout the trial the reasons why the plaintiff did
not testify as to certain facts or did not testify at all. If, for example, the plaintiff were not to testify as to a promise of the
decedent to pay him, an unenlightened jury might conclude that he had declined to do so because he could not, without
perjuring himself. By the time the evidence is concluded, the resultant hostility to the plaintiff may become so fixed that it
cannot be eradicated by an explanation after the fact in plaintiff's closing statement.

After plaintiff has testified or is disqualified from testifying, he should offer his best disinterested witness as to the
performance of the work, that is, the witness who observed the greatest amount of services being performed by the plaintiff
over the longest period of time. It is quite possible that the same witness, having been closely enough associated with the
decedent or the plaintiff, or both, to have observed the performance of services, will also be able to testify to facts that would
raise the implication of a promise to pay for them. For example, the witness may have heard the decedent, in the presence of
the plaintiff, express his intention to compensate or "to take care of" the plaintiff in some way. If the witness is a relative of
the decedent, so much the better, since testimony by a person who might be expected to be favorable to the beneficiaries may
carry considerable weight with the jury, even if the witness is not, in fact, an heir or next of kin in the legal sense. On the
other hand, if the witness was a "natural object of the decedent's bounty" and was not mentioned in his will, the jury may
conclude that he is hostile to the named beneficiaries, and that, therefore, his testimony reflects a bias against them. Plaintiff
may have no choice but to use the witness as his main support; however, he should recognize the possibility that the witness
harbors malice toward the more favored relatives, and that plaintiff's counsel should question him closely so that his story
gains credibility through a mass of detail, notwithstanding his evident or assumed bias.
If any dependence is to be placed upon a prior executed or abortive will to establish the implied promise to pay, such will
should be offered in evidence after plaintiff's principal witness or witnesses have testified. If the will is in the possession of
the fiduciary and he is not himself disqualified under the "dead man" statute, he should be called to establish the fact that it
was found among the decedent's effects and that the decedent's signature thereon is authentic, assuming, of course, that there
is good reason to believe that he will so testify. If the authenticity of the will cannot be established through the testimony of
the fiduciary, an attesting witness should be called, if available. If the decedent made any statements to either the fiduciary or
the attesting witness to the effect that the will was drawn for the purpose of compensating the plaintiff for all his work, they
should be called in any case.
In many cases in which recovery is sought for continuous services over a period of time, the proof on behalf of the
plaintiff must rely upon the testimony of several witnesses who have observed the plaintiff doing work on random occasions
at various times of day. One witness may be able to give testimony as to performance during periods not covered by the other
witnesses. These witnesses may present such a variety of testimony as to give rise to a valid inference that services were
continuously performed even in the interstices not covered by actual testimony, or, if plaintiff has testified and has asserted
that his services were continuous, to corroborate his story. It is suggested that the trial plan should call for presentation of
these witnesses in the order of their probable increasing impact on the jury, so that the proofs will "build" in strength.
Last in presentation should be the witness or witnesses called to establish the value of the services, if such evidence is
necessary.[54] This, of course, is for the very good reason that the services must be established before there will be any basis
upon which the witness will be permitted to make an assessment of their value.
§ 46. Planning plaintiff's case—Action for partnership accounting
The trial of a partnership accounting action will likely be in two parts. In the first part, the court itself will try the right to
an accounting, and, if it finds the right to have been established, will enter an interlocutory decree ordering a reference to take
the account. The initial burden of proof will be upon the plaintiff in the trial before the court and upon the defendant in the
accounting proper before the master or referee.[55]
Thus, it is the burden of the plaintiff (the fiduciary or the surviving partner, as the case may be) to prove the existence of
the partnership, the death of a partner, the failure of the defendant to account and to permit plaintiff to examine the
partnership records, the continuation of the partnership business or possession of partnership assets by defendant, and any
additional facts upon which his claim may be based, such as fraud.
Many of the facts and documents used in the initial segment of the trial can be stipulated, for example, the date of death
of the deceased partner; the partnership agreement, if there was a written one; the business accounts made during the course
of the business, if any; accountant's reports made for the purpose of trial; and the fiduciary's inventory of the decedent's
estate.
If the fact of partnership is at issue, it is probable that the fiduciary plaintiff will find it necessary to waive the "dead
man" statute by calling the survivor for cross-examination, unless the relationship can be established by the records of
business transactions, both internal and external. It may also be necessary to call the survivor to establish plaintiff's demand
for an accounting and defendant's refusal to furnish it.
If the survivor is called for cross-examination, he should probably be the first witness, so that plaintiff, and not the
survivor, will have the advantage of knowing the specifics of his adversary's position at the outset of the trial, and of
fashioning his examination of subsequent witnesses so as to refute the unfavorable aspects of the defendant's testimony, as
well as to bring out the positive points of the witnesses' stories. The defendant should be followed on the stand by business
employees, parties to transactions with the alleged partnership, and, finally, the plaintiff's accountant.
If the survivor is the plaintiff, he may be disqualified unless there has been a waiver of the "dead man" statute. Again,
even if the statute has not been waived, the plaintiff's lawyer should call him for the adverse effect defendant's objection to
plaintiff's testimony will have in the eyes of the jury, or on the chance that defendant's counsel will fail to object and will
thereby waive the protection of the statute. If this strategy fails to achieve the latter goal, it will probably be advisable to
present plaintiff's lay witnesses in decreasing order of their knowledge of the facts and importance to the case, so that a
significant impact on the jury's consciousness will be made at an early point in plaintiff's proofs, and then to offer the
testimony of the experts, the accountant, and the appraiser, where required.
§ 47. Planning the defense—Action for personal services
The occasions upon which the fiduciary-defendant in an action for personal services can expect to prove a complete
affirmative defense, such as payment or accord and satisfaction, seem to be rare, since, if facts existed sufficient to establish
such a defense, the case would probably not have reached the litigation stage. The fiduciary's defense will, therefore, usually
consist of a denial of the plaintiff's claim.
Just as the plaintiff in an action for personal services may "try" the decedent by presenting him as a wealthy, penurious
scoundrel, defending fiduciary may "try" the plaintiff by attacking directly the plaintiff's motives, character, and credibility.
A bad plaintiff may be the fiduciary's best defense, and, if the direct attack is to be attempted, the defendant must consider
carefully the proper timing. The plaintiff may be permitted by the court to testify in his case in chief, either as to matters not
protected by the "dead man" statute, or because the statute has been waived in discovery proceedings or otherwise. If this can
be expected to be the case, the defense lawyer should plan a spirited and exhaustive cross-examination aimed at destruction
of the plaintiff's credibility. If enough serious questions concerning the plaintiff can be instilled in the jury at an early stage,
the momentum of the trial will pass to the defendant, and the jury will be encouraged to view the rest of plaintiff's case with
skepticism.
The defendant may plan to call the plaintiff for further cross-examination when defendant presents his case in chief, to
cover any matters not touched upon in the original cross-examination. If a particular point is adequately made on the cross-
examination in plaintiff's case, it will be wiser to avoid it again, since raising this may give the plaintiff a chance to
rehabilitate himself. Of course, if the plaintiff is not offered as a witness in his own behalf, the defendant may always cross-
examine him at the outset of the defense case.
If defense counsel can reasonably anticipate that a direct attack upon the plaintiff will successfully destroy the latter's
credibility, he should keep in mind the advisability of expediting the trial to avoid losing his initial advantage with the jury
through the tedium of unnecessary testimony. This may mean offering the minimum of testimony necessary to establish the
bare bones of a defense, or, perhaps, no testimony at all.

If the plaintiff holds up well under cross-examination, the defense may be relegated to the alternative course of
attempting to discredit plaintiff's claim by testimony that throws doubt upon the regularity of the performance of services or
on the contention that plaintiff was actually motivated by expectation of payment. It cannot reasonably be expected that the
witnesses furnishing such testimony will absolutely disprove any aspect of plaintiff's case; rather, it should be anticipated that
the cumulative effect of their testimony will induce the jury to resolve the testimonial conflict in defendant's favor, and to
deny or, at least, to limit, plaintiff's recovery. The testimony should cover as much as possible of the period to which the
plaintiff's claim relates. The witnesses should be arranged in an order corresponding to the chronological sequence of the
events within their knowledge, so that the jury will receive an orderly recital of defendant's case. If defense counsel has a
convincing witness whose evidence relates to more than one aspect of the case and whose knowledge covers a considerable
period, he should plan to call him first.
§ 48. Planning the defense—Action for partnership accounting
In contrast to defense of an action for personal services, the defense of a claim for an accounting requires proof of
positive facts, if not an affirmative defense. For example, the Uniform Partnership Act provides that proof of receipt of a
share of profits is prima facie proof of the existence of a partnership, but that this inference may be rebutted by proof that the
payment was actually for something other than a partnership draw.[56] Thus, the best response to proof of a profit-sharing
arrangement may be to prove that the percentage of profits was really salary or rental or an annuity. The evidence to prove
such a fact will probably be a document, such as an employment agreement or a lease, or it may be testimony furnished by
the parties or an independent accountant. For example, if title to realty claimed to be a partnership asset is held in plaintiff's
name, an analysis of the pertinent accounts may show that the percentage of profits was paid to the titleholder as rent, not as a
partnership distribution.
If the defense is that an account has been previously stated, thereby in effect conceding the existence of a partnership, the
account and settlement based thereon have to be proved. This requires the production at least of the account and the
examination of the accountant to establish, prima facie, its correctness.
While establishment of the account after reference is not, strictly speaking, part of the defense case, since defendant has
the burden on the issue, it will be discussed here for want of a more appropriate place. The defendant will be forced to rely on
documentary evidence and expert testimony of an accountant because, again, the best witnesses will be unavailable through
either death or disqualification; the transactions between partners would be protected under any type of "dead man" statute.
The principal strategy problem here involves proof of value. Unless the partnership agreement provides otherwise,
plaintiff is entitled to his share of the assets at their value as of the date of dissolution, and, where the business is carried on
and is not promptly liquidated, determination of that value will be a major issue in the case.[57]
If it is clear that the true value of the partnership assets is in excess of their book value, it would be wiser policy for the
defense to present evidence of actual value immediately, rather than to rely on book value in the first instance and to present
evidence of actual value later by way of rebuttal, after the plaintiff has shown that the partnership assets' true value is much
greater than the book figure. Book value ordinarily reflects original cost, less depreciation, bad debt allowances, and the like,
together with a nominal amount for good will, whereas the market value of the assets, and the real worth of the good will, of
the business may be much higher. Fighting for lost causes is not a practice that is recommended if counsel is arguing to a
referee or judge, who can be expected to possess more sophistication and less tolerance for courtroom stratagems than a jury.
§ 49. Planning a rebuttal
The necessity for rebuttal testimony does not often arise in an action for personal services. In most instances, the plaintiff
must expend all of the testimony available to him to make a prima facie case. The jury will probably decide the case by
balancing the comparative cogency of the testimony presented by the parties in their cases in chief, and the relative credibility
of their witnesses. Moreover, the occasions that an affirmative defense is available to the fiduciary are few, so that the
necessity for rebuttal on that score seldom presents itself.
Planning for rebuttal will be more often required in a partnership accounting. If the defense claims an account previously
stated, the plaintiff must be prepared to show that the tendered account was incomplete, incorrect, misleading, or fraudulent.
This requires an analysis of the account in cooperation with the plaintiff's accountant to determine the points most vulnerable
to attack. While some discrepancies in the practices of the defendant's accountant, or in the correlation of the account with the
testimony or documentary evidence, may perhaps be brought out by cross-examination, the plaintiff must expect that the
burden of his reply to the account will be met by examination of his own expert. This is particularly true where the validity of
the account is dependent on the correctness of the accounting theory or procedure applied in reflecting partnership
transactions in its books of account. A more effective attack on the accounting practices followed by the defendant's
accountant will normally result from examination of plaintiff's own expert, rather than from cross-examination of defendant's
accountant, to show that the latter's practices were not based on sound accounting theory or acceptable accounting standards.
Of course, if the plaintiff questions the valuation of tangibles or good will used by the defendant in his account, he must
be prepared to present expert opinion evidence to establish his own valuation.
§ 50. Preparing the record
In the majority of cases, it is not realistic for either party to expect a bench decision at any point of a partnership
accounting action, since these are relatively complicated cases, in which the judge or master must review in detail a
considerable body of reports, accounts, contracts, and other documentary evidence, as well as testimony of witnesses. A
delay of several weeks or months before a decision will be rendered must be anticipated.
This being so, and, knowing that his responsibility will be to find the facts and not merely to charge a jury as to the
applicable law, the court or referee will tend to rely on a transcript of the proceeding rather than on his own notes. His
reliance on the transcript will be increased in proportion to the volume of testimony and the period that elapses between the
trial and the preparation of his decision.
The lawyer for each side must therefore prepare to present his case with a view toward making a record that will
precisely reflect the testimony to be offered on his client's behalf. The court's view of the demeanor of witnesses will be
important as always, but it cannot be expected to have the overriding effect similar impressions would have upon a jury.
Anyone who has decided cases from the record will probably remember cases that, had he been required to decide them
immediately, as a jury does, he would have decided one way, but, upon review of the transcript several weeks later, he was
constrained to decide the other.
It is a fact that often the witness does not say what the lawyer, who expects a certain answer or is thinking about his next
question, thinks he said, or perhaps, the witness, not understanding the intent of the question, gives an answer that sounds
responsive at the time, but, when reduced to writing, turns out not to be. While, therefore, it is always important to have
assistance when trying a case of any importance, the lawyer trying a case that will be decided on a written transcript will find
it imperative to have associate counsel with him at the counsel table. This does not mean an associate who may have been
briefed for an hour or two the day before the hearing begins, but one who has assisted in the preparation of the case from the
beginning and who could therefore be expected to understand precisely what answer is sought in response to a particular
question and be prepared to alert the lawyer conducting the examination, if necessary, when that answer is not received.
For similar reasons, it is suggested that in preparing a complicated case that will be decided on the written record, the
lawyer should prepare a rather detailed scenario that will set out the order in which certain questions will be asked of certain
witnesses and the point in the proceedings at which a certain exhibit should be identified. Such a script should not be relied
on to the extent that no flexibility remains to exploit windfalls or to fully explore unexpected turns in the evidence, and such
adherence would probably result in too stilted a presentation for a jury but if the lawyer is to be sure that he has made a
complete record, some such practice should be followed. This technique has added importance where the orderly presentation

of the evidence requires partial examination of a witness, who will probably be recalled after other evidence has been offered.
The risk of losing his place in such a situation should be apparent to the examiner.
Finally, when a case is to be presented and decided in this way, the lawyer must be prepared to assess and analyze the
effect that testimony might have after it is reduced to cold writing and considered at relative leisure by a person who has
developed a thorough knowledge of the theory and law of the case. Thus, a line of questioning, which might become lost in
the overall impressions or prejudices of a jury required to make a horseback judgment, could assume controlling importance
when reduced to writing for consideration of a judge. Since proposed findings of fact and briefs of the law will probably be
requested of each party, it can be expected that an opportunity will be presented to drive home any such testimony to the
judge or referee.
§ 51. Trial briefs
An action for personal services would seem to be relatively simple case on the substantive law. The relevance of a
witness' testimony would also be readily apparent in most such cases. The trial brief need not, therefore, belabor either point.
[58]
However, the judge should be briefed upon any legal presumptions that would aid the lawyer in making his case. For
example, the presumptions that one who performs services for another to whom he is unrelated does so in the expectation of
being paid, and that the recipient of the services has impliedly promised to pay for them, should be called to his attention. He
should also be fully advised as to the inferences the lawyer believes could reasonably be drawn from the expected testimony.
Beyond this, since the decease of one of the parties will introduce somewhat unusual evidentiary and procedural
complications that may be outside the judge's daily experiences, the judge should be briefed on the law applicable to them.
For example, the law relating to presentation and allowance of claims, procedural steps required to be taken in probate court
prior to instituting a plenary action, the provisions of the applicable statute of limitations and nonclaim statute, and how these
laws may affect the particular case, should be carefully briefed.
Moreover, it is natural for a judge who may be overworked, to try to avoid any case he may be able to avoid. Thus, if he
sees the word "administrator" or "executor" after a party's name, he may be tempted, if afforded any basis at all, to wash his
hands of the case and send the parties back to the probate court. Therefore, the basis of the court's jurisdiction over the
subject matter should be adequately explained in the trial brief.
The nuances of the "dead man" statute, including the matters protected, the exceptions to its application, and the facts
that would create a waiver, should, of course, be fully briefed insofar as they are relevant. The proper application of this
statute is of overriding importance in any case involving a decedent's estate. A clear explanation of an exception, or a ground
for waiver, existing in favor of a litigant may result in the admission of testimony vital to his case. Indeed, a case may be won
or lost depending on whether the statute is properly explained to and applied by the court. The above discussion applies
equally to a partnership accounting. In addition, however, there are certain other evidentiary questions concerning which the
judge should be briefed by counsel prior to the trial. For example, the value of good will might properly be assessed on the
basis of a formula derived from evidence, seemingly irrelevant, as to the average percentage of return on investment of other
similar businesses. The validity of such a formula should be explained to the court in the trial brief.
If the existence of a partnership is to be contested, the law of the elements of partnership as it would pertain to the
expected evidence should be briefed. The lawyer seeking to disprove a partnership should alert the court to the evidence by
which he will seek to establish the ultimate facts that, under the Uniform Partnership Act, will rebut the presumption that a
partnership existed.
§ 52. Advisability of jury trial

Suits for a partnership accounting are not triable before a jury, since, almost by definition, they invoke equity
jurisdiction.[59]
On the other hand, an action for recovery of a money judgment either by or against a fiduciary, including an action by a
survivor against the estate for personal services, is properly an action at law in which the right to a trial by jury must be
preserved. Hence, in preparing for trial of such an action, a decision must be made rather early in the game whether to seek a
jury trial, since the outcome will have some effect on the manner in which the attorney presents his case.
Whether either side should demand or waive a jury trial will depend on the facts and background of each case. More
precisely stated, the solution to the problem involves a judgment as to where the sympathies of the ordinary person might be
expected to lie. This judgment will, as always, be made upon consideration of the status and background of the parties as they
can be brought to the attention of the triers of fact, bearing in mind that the real parties in interest so far as the estate is
concerned are the heirs or next of kin, or beneficiaries under the will. This will be true whether or not the estate is insolvent
because, as a practical matter, while the identity of the persons who will share in the decedent's property is not relevant to the
issue, the decedent's family situation, at least whether he left a widow and children, can be expected to come out in the
evidence. This will most probably occur in cases in which the claim is for services performed in the decedent's home; some
reference to the presence or absence of close relatives in the household will ordinarily be made during the testimonial
narrative.
Another factor bearing upon the question of jury trial vel non is the economic status of the parties. Since again, it has no
real relevance to the issues, this will come to the attention of the trier of fact only inferentially or incidentally through
statements of the witnesses as to the occupation of the plaintiff or their own occupations, the size of the decedent's household,
or the type of services performed. In considering the impact of this factor as it applies to the estate, the fiduciary should take
into account not only the financial condition of the decedent, which is likely to come out at the trial in one way or another,
but also that of major beneficiaries who are expected to be witnesses; if the latter are affluent, an alert adversary may be
counted on to discover that fact and develop it in his cross-examination.
The nature of the services may indicate that the decedent was a wealthy man. For example, the services may have
consisted of taking care of a large house or handling decedent's business affairs, such as making frequent bank deposits,
collecting rentals, or clipping coupons. Counsel may try to show that the decedent was a cunning, sly old person who
defrauded the hardworking plaintiff by failing to provide the promised compensation even though he had sufficient or money
to do so.
On the other hand, the nature of the services might be such as to evoke sympathy for the plaintiff, particularly where the
services are shown to have been arduous or menial in nature, perhaps necessitating the party performing such services to
clean up after an incontinent patient.
The above are some of the criteria that will influence the decisions of counsel for both parties as to the advisability of
demanding a jury. At first blush, it might be thought that a jury trial would be more beneficial to the estate than to the
survivor because of the general automatic association of a decedent's estate with an unfortunate widow and orphan. On
reflection, however, it will be seen that this sympathetic reaction may not occur in a case involving a claim for personal
services. In almost every such action wherein a nonrelative is the plaintiff, a jury trial will probably be in the best interests of
the claimant because, if the decedent had close relatives, the aid of an outsider would not have been required. On the other
hand, if there were close relatives who were able to perform the services and they did not do so, the plaintiff might reap the
benefits of the jury's antipathy to them arising from their failure to do their duty.
XII. Pretrial Conference
§ 53. In general

The purposes of the pretrial conference are threefold.[60] It should bring out the real issues of fact and law to be tried, it
should dispose of such preliminary evidentiary matters as stipulations of fact and agreements concerning the admissibility of
documents, and it should afford an opportunity for serious settlement negotiations. At the conclusion of the conference, the
parties should be ready for trial, or should have avoided the necessity for trial by settling the case, or should at least have so
far completed preliminary negotiations that settlement can reasonably be expected to follow in due course.
Pretrial is only as efficacious as counsel and the court make it. Unfortunately, it often turns out to be just another
procedural formality that keeps the lawyers from what they, at least, deem to be more productive work. It is something to be
endured while revealing as little as possible of real significance of their respective cases. Ideally, the lawyer should have
progressed far enough in the preparation of his case prior to the pretrial so that the only unknowns to him at that stage would
be matters that may be stipulated without the necessity of proof, the particular documents in his case that will be objected to,
and whether he will have to actually try the case. He should have sufficiently analyzed the value of the case that he can carry
on a fruitful discussion of the settlement possibilities. In any event, if there is a proper preparation prior to pretrial, the
conference will have real significance, and the disposition made of various matters then will save everyone time and trouble
at the actual trial.
§ 54. Clarifying the issues
It is reasonable to ask that both sides have sufficient understanding of the issues and theories of law involved to be able
to explain them to the judge. It is conceivable that if this is done, both sides, will come out of the conference at least with a
better understanding of what is not involved. The judge may even help counsel to a better understanding of the importance of
any legal questions by asking to be briefed on certain points.
Lawyers appear to fear they might educate the opposition, and, as a result, tend to be unduly uncommunicative. Of
course, limited communication can have its advantages. When a decedent's estate is a party to the case, the "dead man"
statute will be a factor, perhaps the paramount one, in the case. The process of sharpening the issues at the pretrial should
afford the fiduciary's counsel some insight, as to the extent of the survivor's attorney's knowledge of this statute and its
restrictions on the testimony permitted his client. On the other hand, the survivor's lawyer may receive some indication as to
the fiduciary's intentions relating to the waiver of the statute.
The fiduciary's counsel may be faced with a difficult problem if the judge at pretrial asks whether there are any unusual
legal problems that might come up in the case. It may often happen that counsel is fairly certain that the opposition is not
aware of the "dead man" statute and its applicability to the case at hand. He must, for example, consider whether to mention
the statute and thus take the risk of enlightening opposing counsel as to its restrictions and alerting him to the necessity of
assembling competent evidence to prove his case, in a situation where the latter might otherwise have relied at the trial solely
on the testimony of a disqualified witness such as his client. Of course, counsel should never lay himself open to the
imputation that he has concealed anything from the court. On the other hand, it is doubtful that the "dead man" statute would
be considered an unusual point of law, since, by definition, it is a factor in every case in which a decedent's estate is a real
party in interest. It is therefore suggested that no revelation would be necessary in such a situation, since the court is really
asking for issues, the resolution of which might be difficult and about which he would want to be briefed in order to save
time at the trial.
A different question would be involved if both parties are aware of the general applicability of the statute, but if in a
given case, a particular point is expected to arise concerning an exception to the disqualification, or waiver of it by the estate
because, for example, survivor's deposition was taken; the court should be advised of that issue.
The substantive issues in an action to recover for personal services are fairly simple: did facts exist from which a
promise to pay might be inferred, what services were in fact performed, and what were their reasonable value? It is doubtful
whether any agreement could be reached at pretrial whereby trial of any of these issues could be avoided.
The suit for partnership accounting may present many issues, such as (1) whether a partnership existed, (2) interpretation
of the partners' rights under a partnership contract in case of dissolution by death of a partner, (3) whether payments made by
a partner to the firm were capital contributions or a loan, (4) whether the distributions made should be characterized as a
draw, salary, or loan, (5) the authority of partners or employees to perform certain acts whereby the firm would be bound, or
(6) the propriety of an account previously stated. An attempt should be made at the pretrial to dispose of as many of these
issues as possible by agreement, so that the trial can focus on those points about which there is substantial controversy.
§ 55. Stipulating admissibility of documents
Trial time should not be wasted in arguments concerning the proof of documents. Pretrial is the proper time to dispose of
such questions, and counsel for both parties should have decided prior to the conference what documents will be used by
them during the trial and have the originals in their possession. They should be arranged in the order of their probable use in
the trial, and numbered consecutively. It would be good practice to make copies for opposing counsel.
If either side should question the admissibility of any of the opposition's documents, the objection can be reserved and
the issue as to admissibility briefed in the trial briefs submitted by both sides. The court is then in a position to rule quickly
and intelligently as to each document. Time can also be saved by using instruments as to which no argument exists, since
opposing counsel will already have copies thereof, and the necessity of submitting each paper to him for review prior to
marking and identification can thereby be avoided.
§ 56. Final settlement efforts
As stated previously, the fact that a decedent's estate is a party to the litigation introduces considerations that often
compel reasonable persons to effect a compromise without instituting suit. However, it is always possible that the
peculiarities of the claim procedures of the forum, particularly time limitations, may force suit in order to protect the rights of
the claimant. After suit is brought, the procedural factors that theretofore were conducive to settlement have largely ceased to
exist. Neither party then wishes to importune the other unduly, thereby exhibiting the appearance of weakness; both sides sit
back and wait for the court and jury to decide the issues. The pretrial conference affords a natural opportunity to initiate or
resume negotiations, and both sides should seize it.
Renewed analysis of the case for settlement purposes should comprise a major portion of the process of pretrial
preparation. This new analysis may produce a different evaluation because of the intervention of new or changed factors
since the claim was rejected. For example, other claims may have been presented and allowed, new assets may have been
discovered, or the value of the original assets may have shrunk or appreciated since the original valuation. The parties should
both have developed a more complete and detailed picture of the validity of their claim or defense from a legal standpoint.
While the time factors that may originally have impelled the parties to attempt to settle may no longer be so compelling, there
should be sufficient inducements remaining to both parties to bring about a reasonable settlement at pretrial.
XIII. Trial
§ 57. Selecting the jury
Ostensibly, the purpose of the voir dire examination of prospective jurors by counsel is to expose any prejudice they may
entertain against either party and thereby establish the foundation for their dismissal for cause. However, in actuality, it is
used by trial counsel primarily for the opposite purpose, that is to obtain a jury as well disposed as possible to the client and
to counsel himself.[61] Counsel often use the voir dire examination as a means of becoming acquainted with the jury and
giving the jury a chance to know and, it is hoped, to like counsel. That this is not an exercise in futility is open to serious
question. Some seriously doubt whether a few minutes of small talk with the jurors will make any difference at all in the
jury's estimate of counsel, and, thereby, of his client's case, particularly when they will have an opportunity to watch him in
action throughout the trial. Nevertheless, few trial lawyers neglect to take advantage of this opportunity to "warm up" the jury

if the court or the procedures in the jurisdiction permit him to do so. Many trial lawyers apparently fear that if they do not
seek thus to ingratiate themselves with the jury, and their opponent does, they will never be sure that an adverse verdict was
not the result of the jury's preference for opposing counsel, arising from his friendliness during the voir dire.
Aside from the above considerations, the object sought to be achieved by the voir dire examination to rid the jury of
persons who might be antipathetic to the client's cause and to replace them with others who might be expected to be
sympathetic. The attempt is grounded on the theory that persons of similar educational, vocational, and environmental
backgrounds will think alike. These are really the only bases upon which a judgment as to how people will react to the client,
his counsel, and his case, can be made by counsel during the short time of the voir dire, when the subjects of the inquiry are
in such constrained, unnatural surroundings.
Considering generally cases involving a decedent's estate, it appears that a claimant should always avoid a juror who had
at any time been closely involved in the administration of a decedent's estate either as fiduciary or beneficiary or both.[62]
Laymen generally do not understand estate proceedings, why so much "red tape" is required to get what is theirs anyway by
reason of kinship or friendship, why the costs of probate are so high, and, particularly, why the process takes so long. Anyone
who has been through such a proceeding is likely to be sympathetic to the estate and to the persons who succeed to the
decedent's property.
Applying the "type cast" theory specifically to actions for personal services against estates, the plaintiff will probably
want women, particularly housewives, as jurors, especially if the work involved is of the housekeeping or nursing type. He
will probably also favor working-class people and persons in the young adult and early middle-age groups. Older people are
more apprehensive of imminent death or disability and therefore, perhaps, more sympathetic to the plight of the decedent,
whom they might suppose to have been imposed upon by an officious plaintiff. Plaintiff will probably wish to avoid
businessmen, particularly employers or personnel executives.
On the other hand, defendant in such a case will welcome businessmen. A man in business is likely to look with
jaundiced eye upon a plaintiff who has performed considerable services over a long period of time and at the same time been
so unbusinesslike as not to demand a compensation agreement in writing. While the plaintiff will prefer women as jurors, the
defense will, in general, want men; and whereas plaintiff will desire younger people, defendant will prefer older people.
Such general rules may be changed by the requirements of the particular case. For instance, if the plaintiff were a woman
and the defendant intends to make a direct attack on her character and credibility, he may well prefer women jurors on the
theory that women are stricter judges of other women than men. In addition, opposing considerations must be weighed
against each other. As an example, the defendant preferring male, business types, but faced with the remainder of an array
composed almost entirely of women, might accept a man, even if he were a young laborer instead of a retired businessman.
§ 58. Opening statement—of plaintiff in action for personal services
In a jury trial, counsel for the plaintiff should always plan a strong, cogent opening statement.[63] The object is to get the
jury in such a frame of mind that they are looking for any shred of evidence that will support the client's case. A
corollary to this rule is that the need for a strong statement of what counsel expects the evidence to show is inversely
proportionate to the strength of the evidence that will be adduced.
The corollary seems to be pecularly pertinent to an action for personal services against the decedent's estate. The
statement should describe the witnesses by occupation and connection with the decedent and advise the jury as to what,
in general, the testimony of each witness will consist. If the services were onerous, unpleasant, or distasteful, the gory
details should be made explicit to the extent permitted by good taste. For example, if housekeeping services included
cleaning up for a decedent who, because of illness or senility, had lost control of his bodily functions, the jury should be
told that the evidence will show that plaintiff was obliged constantly to change and launder soiled clothing and linen.
Counsel for the plaintiff should advise the jury that he expects to call his client to testify in support of his claim, even
though he may be certain that opposing counsel will insist that the "dead man" statute be strictly enforced. The jury
should be alerted at the earliest possible time to the plaintiff's intention to present his own testimony, so that his failure to
testify may be laid to defense counsel's taking advantage of a "technicality" to conceal information, and not to an
unwillingness to testify on plaintiff's part. Moreover, the jury will then anticipate hearing plaintiff's story first-hand, and
their resentment at defendant's later objection to plaintiff testifying may well be deepened when their expectation is
thereby frustrated.
An illustrative opening statement for the plaintiff might therefore be as follows:
Ladies and Gentlemen of the Jury, in this case, Mrs. Mae Jones is the plaintiff and she has brought this lawsuit against
Mr. Green who is executor for Mr. John Smith who is, unfortunately, now dead, for the value of housekeeping services
which she performed for Mr. Smith during his lifetime. As we said, Mr. Smith is, unfortunately, now deceased. He died
on ____________, 20___, so that the suit has been brought against Mr. Green, the executor of his will and the person
charged with the legal duty of paying Mr. Smith's valid debts from his property.
We expect the evidence to clearly show that in ____________, 20___, Mr. John Smith was old and sick and feeble. He
had just returned home after an extended stay in the hospital and in a convalescent home. He needed help because he was
a widower, living alone; but he didn't want to go to a nursing home. He had lived many years at his home at
____________ Street, he loved the house and his garden and flowers and so wanted nothing more than to live out there
the few months or years remaining to him.
The evidence will, we are certain, show that his neighbors and friends, knowing of his desire to live in his home as long
as he could, suggested the plaintiff, Mae Jones, to him as a possible housekeeper. They arranged a meeting. Mr. Smith
and Mrs. Jones met, he requested that she come to his house as his housekeeper, and she came on ____________, 20___
or thereabouts. She broke up her own home, put her furniture in storage, and answered the call of this old, feeble man.
We will show that Mr. Smith assured the plaintiff, Mrs. Jones, that she would be adequately compensated for her efforts
and that to sustain his side of the bargain, he drew and signed a will under which Mrs. Mae Jones was a substantial
beneficiary.
We expect the evidence to show beyond any reasonable question that Mrs. Jones performed her part of their bargain. For
almost ____________ years, she cooked, cleaned house, assisted Mr. Smith in getting about the house, washed, ironed,
and even cultivated his flowers. This was not an eight-hour job, nor was it a twelve-hour job. Mrs. Jones was on call for
twenty-four hours each day. Our witnesses will show that, as time went on, Mr. Smith grew more and more feeble and
that the need for the plaintiff's services grew more frequent, as did the necessity of her doing more disagreeable tasks,
such as soaking and laundering bed linens, soiled as the result of the old man's increasing inability to control himself at
night. We fully expect the evidence to show that, toward the end, the plaintiff was required to get up in the middle of the
night to change his night clothes and bed linens three or four times each week. The plaintiff even did Mr. Smith's
business errands for him. For instance, she regularly deposited his dividend and social security checks at the bank.
Mrs. Jones, the plaintiff, would have continued to work for Mr. Smith until the end—she was ready and willing to do so,
—but, at last, the defendant, Mr. Green, who was a cousin of Mr. Smith, came and persuaded old Mr. Smith to go and
live with him and his wife in Springfield. This was in ____________, 20___, at which time Mrs. Jones was told by Mr.
Green that her services were no longer required by Mr. Smith. However, at Mr. Smith's request, she helped him pack and
prepared him for the trip to Springfield. Thereafter, she was no longer employed by Mr. Smith.
On ____________, 20___, while Mr. Smith was in Springfield, he made a new will leaving all of his property to Mr.
Green. Moreover, Mr. Smith paid Mrs. Jones nothing for her services before he died on ____________, 20___, and so
Mrs. Jones has been obliged to make claim against Mr. Smith's estate. This she did, but the claim was rejected by Mr.
Green as Executor, and so we are all in Court today.
As part of our proof, we will offer the testimony of the plaintiff, Mrs. Mae Jones, and also of friends and neighbors of
Mr. Smith, people who knew him well and were often in his home while Mrs. Jones was there. We will also offer the

testimony of the witnesses to the first will of Mr. Smith, the one that remembered Mrs. Jones, to show that he fully
intended that she be compensated.
At the time Mrs. Jones was hired by Mr. Smith, it was not known how long she would be required to work for him, and
her duties were not spelled out in detail. Consequently, there was no specific agreement between them as to the amount
that she would be paid for her services. However, we will introduce testimony to show what the reasonable value of her
services was, and you will have the final say as to how much she should receive.
Ladies and Gentlemen, all we ask of you is that you listen carefully to the evidence we will offer. We are confident that,
after you have heard our witnesses and the witnesses offered by the defendant, you will return a verdict for Mrs. Jones.
§ 59. Opening statement—Of defendant in action for personal services
Counsel for the defendant should be circumpsect in his opening statement, although he should not permit a strong
statement in support of the plaintiff to go long unchallenged.[64] An immediate statement would be favored over the practice
of reserving the statement until the defense case is opened, in order to inhibit an incipient bandwagon psychology in the
plaintiff's favor. Defense counsel must, however, restrict himself to detailing expected evidence that will permit the inference
that the plaintiff was mistaken to some degree as to the extent of the services he performed or that he has succeeded in
convincing himself intellectually that his contributions were more valuable than they were in actuality. The characterization
of the plaintiff in defendant's opening statement should be that he is mistaken, not lying or untruthful. A direct attack on
plaintiff's credibility should not be advertised ahead of time because, if, perchance, the plaintiff makes a better witness than
the defendant thought he would, an unfulfilled implication that he will be impeached would backfire. The proper time to
drive the point home is on closing argument, when all of the evidence is in and the duplicity of the plaintiff can be detailed,
point by point.
§ 60. Opening statement—Of plaintiff and defendant in action for partnership accounting
The action for a partnership accounting will be tried to a court and a master. This being so, both parties may wish to
waive opening statements to exhibit their diligence in saving the court's time. Since it is to be expected that proposed findings
of fact and briefs will be requested by the court, in which the meaning of the evidence can be fully expounded upon, it
appears that only token statements would be required.
§ 61. Presentation of plaintiff's case—Action for personal services
As already indicated, in presenting the plaintiff's case[65] seeking to recover compensation for personal services, counsel
will probably rely heavily on the evidence of neighbors and friends of the decedent who had observed the plaintiff at work.
The plaintiff's counsel should qualify each such witness as an observer over as long a period of time as possible, to bring out
facts that will show a need on the part of the decedent for the services and an intention to pay for them, as well as to establish
a basis for their valuation.
Of course, it is necessary to review any witness' story with him before trial. This is particularly true where the witness
will be asked to testify as to events occurring over a long period of time, including conversations, and where, perhaps, he is
not highly educated and has had no experience as a witness. It goes without saying that testimony may not be suggested, but
it is also true that a person may say one thing at his home or in counsel's office and something entirely different when he is
subjected to the pressures of courtroom proceedings. He may not understand the lawyer's questions. If this happens, he may
become confused and forget what he does know. The same result may be induced by objections of opposing counsel. The
witness should be told in advance to make sure he understands the question, and, if necessary, to ask that it be repeated. He
should also be advised that there may be objections to questions, and that, if there are, he should in each case wait until the
court rules on the objection before answering. He should be told not to be bothered by objections, that they involve legal
questions for the court to rule on, and are not a criticism of him as a witness.
§ 62. Presentation of plaintiff's case—Illustrative presentation
For the purposes of the illustrations contained herein, let us assume that Mae Jones has brought an action against the
estate of John Smith for personal services rendered beginning April 5, 1967, and continuing until six months prior to his
death on March 10, 1972. The alleged services were of a housekeeping and nursing nature, and were performed in the
decedent's residence at 485 First Street, Black Rock, Illinois. Mrs. Bella Davis is called as a witness for the plaintiff, and,
after stating her name, is questioned as follows:
Q.
Where do you live, Mrs. Davis?
A.
491 First Street.
Q.
Is that in Black Rock?
A.
Yes.
Q.
How long have you lived at that address?
A.
Since early in 1959.
Q.
Where did Mr. John Smith live in 1959, if you know?
A.
He lived in the next house west from us. I'm sure the number is 485 First Street.
Q.
When did Mr. Smith move there?
A.
I don't know. He was living there when we moved in.
Q.
Did you become acquainted with Mr. Smith?
A.
Yes. We moved in early in 1959, as I said. We didn't get acquainted right away, but my husband and I both
work in the yard. John, Mr. Smith, kept roses, beautiful roses, and we got to talking about them, and the other
flowers we grew, after the weather turned nice and we could work outside.
Q.
Did you and Mr. Smith do anything else besides talk about the flowers?
A.
Well, yes. My husband and I like to cook out and so did John. His wife was living at the time but she was pretty
sickly and he had to do a lot of the cooking and housework. So, it was a relief for him to get outside in the
summertime for a picnic, and we just got to teaming up for backyard picnics.
Q.
When did Mrs. Smith die?
A.
It was the Saturday before Labor Day and we had been there two summers, so that would be in September of
1960.
Q.
Now, Mrs. Davis, did you have occasion during Mr. Smith's life to be in his house?
A.
Oh yes. We would go in each other's kitchens to get things for the picnics and then when his wife went to the
hospital in August of 1960, I used to cook a little extra and take it over to him or have him over to our house for
dinner. We didn't see too much of each other for awhile after his wife died, but we would have him over for dinner

once in a while that winter. Then, when he got sick, I used to go over and help out as much as I could; Mrs.
Heinrich, who lived on the other side of him, also helped out.
Q.
Would that be Mrs. Carl Heinrich? [A more definite identification of Mrs. Heinrich is sought on the expectation
that she will be a witness for the plaintiff.]
A.
Yes.
Q.
Mrs. Davis, Mr. Smith died on March 10, 1972. Do you know how old he was when he died?
A.
I'm not sure, but he was pretty old. He used to tell stories about when he worked one summer on his college
vacation at the St. Louis World's Fair. That was in 1903, I think. I would say he was about 86 or 87 when he died.
Q.
What was the condition of Mr. Smith's health when you moved next door to him in 1959?
A.
Quite good. For a man well over 70 then, he was pretty spry. He used to do all his own yard work, mowing the
lawn and that kind of thing.
Q.
Mrs. Davis, did you notice a change in Mr. Smith's physical condition at any time after you moved in to your
present residence?
A.
Yes, in January or February of 1966.
Q.
Did he go to the hospital?
A.
Yes, he called us at night and we went over. He couldn't move from his chair so my husband called the
ambulance.
Q.
How long was he at the hospital?
A.
About two months.
Q.
What, if anything, did you observe about his physical condition after he got home?
A.
Well, he had trouble getting around for a long time. He had a nurse for several weeks, but he slowly got better.
One side of his mouth drooped though and his right arm wasn't very strong. His hands trembled a lot.
Q.
Did Mr. Smith go to the hospital again after that?
A.
Yes, he went back in the spring of 1967.
Q.
What was his condition when he returned?
A.
Worse. He was a lot weaker, he'd gotten thinner and had trouble talking. My husband and I didn't see how he
could get along by himself there. I just couldn't take care of him, so we tried to talk him into going to a rest home for
awhile.
Q.
Did he go to a nursing home?
A.
No, he just couldn't bear to be away from his yard with spring coming on and the crab apples and lilacs in
bloom. We didn't know what to do. Mrs. Heinrich and I talked it over and she thought of this friend of hers who was
drawing social security and living aline in an apartment over on Court Street. She had no one but herself and Mrs.
Heinrich thought she might come over and keep house for Mr. Smith. She had taken care of her husband before he
died.
Q.
Did Mrs. Heinrich mention her name?
A.
Yes, Mae Jones.
Q.
Did you or Mrs. Heinrich talk to Mr. Smith about Mae Jones?
A.
Yes. Both of us went over to see him the next day. Mrs. Heinrich told him the same thing that she told me about
Mrs. Jones, and he asked us to call her right away. Mrs. Heinrich called Mrs. Jones on Mr. Smith's telephone and
asked her to come over to Mr. Smith's house as soon as she could.
Q.
Did Mrs. Jones come over?
A.
Yes, she did.
Q.
Did you meet her?
A.
Yes, I went over and introduced myself to her the day she arrived, and I helped her to get acquainted with the
house and with John.
Q.
When was this, to the best of your recollection?
A.
Well, it was the first of the month, because she didn't want to pay another month's rent. It was April, I'm sure,
because our tulips hadn't bloomed yet.
Q.
This was in 1967?
A.
Yes.
Q.
Now, Mrs. Davis, do you know what arrangements were made about paying Mrs. Jones?
A.
No, I don't.
Q.
Did you have any other occasion to go to Mr. Smith's house after Mrs. Jones came?
A.
Oh yes, I went over there quite often, sometimes to sit with Mr. Smith when she had to go out to the grocery or
some other errand or to see friends. He couldn't be left alone. Sometimes I'd just go over to chat.
Q.
Can you state how often you were in the house?
A.
That is hard, it was quite often. I would say at least twice a week, except when we were in Florida. We go to
Florida for three or four weeks every March.
Q.
Were you in the habit of going there at any particular time of day?
A.
No, not really. Sometimes I'd drop over in the morning after I'd finish the dishes and chat for an hour or so, and
maybe help out. Sometimes I'd go over in the afternoon when she went to the grocery and once in a while I'd go over
at night if my husband was bowling or away on business.
Q.
Did you ever eat a meal with them?

A.
Yes, Mrs. Jones had my husband and me over to dinner once in a while.
Q.
Did Mrs. Jones eat her meals there?
A.
I don't know if she had all her meals at Mr. Smith's house. I do know that she lived there, and I had lunch with
her there once in a while and also dinner occasionally. [It is preferable for plaintiff's counsel to develop the fact that
plaintiff received room and board from decedent, rather than to have that fact brought out for the first time by
defendant's counsel on cross-examination.]
Q.
Did you observe Mrs. Jones preparing meals?
A.
Yes, she was always in the kitchen when we got there for dinner. One of us would bring Mr. Smith into the
dining room and then she would serve. She always took his lunch in to him on a tray before we would eat if I was
over there for lunch.
Q.
Did he have trouble getting around?
A.
Yes, he always needed help. He had a walker that he used sometimes, but that took a long time and he usually
asked her to help him walk, if he came to the table to eat with us.
Q.
Did Mrs. Jones borrow groceries from you?
A.
Yes, we borrowed back and forth, a cup of flour or a stick of butter, or something like that.
Q.
Did you observe the condition of Mr. Smith's house after Mrs. Jones came?
A.
Yes, the rooms in the house that I saw were always straightened up and clean.
Q.
Which rooms were those?
A.
The kitchen, the living room, the dining room, and the bathroom. Occasionally, also, I was in Mr. Smith's
bedroom. There was a second bedroom in the house that Mrs. Jones used, but I wasn't in that room very much.
Q.
Was there anything out of the ordinary that Mrs. Smith did to keep the house clean?
A.
Yes, quite a bit; it was no easy job.
Q.
What do you mean by that?
A.
Well, as Mr. Smith got older and feebler, he got careless. He would drop food on the floor and leave
newspapers and books where they fell. He also had trouble as time went on holding himself; his bladder and bowels.
His bed sheets were often soiled because of this.
Q.
Did you observe Mrs. Jones doing his washing?
A.
Yes. Once or twice when I was visiting in the morning, she was busy with the washing and ironing, and we
would have a cup of coffee in the laundry room. I would see her hanging wash often in the summertime. A lot of the
clothes on the line were a man's clothes, Mr. Smith's. There was also a great deal of bed linen. Several times she
borrowed laundry detergent from me; she used an awful lot of that.
Q.
Mrs. Davis, do you know of your own knowledge that Mr. Smith soiled his bedclothes through lack of control?
I mean, not from conversation with Mrs. Jones?

A.
Yes, it happened once when I stayed with him for two days while she visited some relatives in Decatur. I had to
wash them myself and it was not a very pleasant job. I remember one other time when I was over there one morning
I helped her strip the bed and the sheets were soiled.
Q.
Did you observe Mrs. Jones performing any other work for Mr. Smith?
A.
Yes, I've seen her help him get dressed on several occasions. She used to work in the garden in the spring and
summer around the flower beds. They had a boy to mow the lawn, but sometimes he didn't show up and Mrs. Smith
did that, too.
Q.
Did she help him in his business affairs?
A.
Yes, she did his banking for him, social security checks, and dividend checks. I remember once about a year
ago, she came over in the evening to talk to my husband. She had a stock that Mr. Smith had gotten through the
mail, a stock dividend I think it was, from IBM, and she didn't know what it was or what to do with it.
Q.
How do you know that Mrs. Jones did Mr. Smith's banking?
A.
Well, if the weather was nice she would seat him on the front porch and ask me to keep an eye on him because
she was going to the bank for him. Sometimes she would call me and ask me to sit with him in the house while she
did the banking.
Q.
Mrs. Davis, did you ever see Mr. Smith write his signature?
A.
Yes, I did.
Q.
When was this?
A.
About three years ago, sometime in June or July of 1969, I think.
Q.
Tell the jury what happened on that occasion.
A.
Well, Mrs. Jones called me after dinner and asked if we, my husband and I could, come over and be witnesses
to Mr. Smith's signature on his will. We went over to his house and sat around the dining room table and talked for a
while. Mr. Smith couldn't talk very well, but he did say something about Mrs. Jones taking such good care of him
and he hadn't been able to repay her, but he wanted to take care of her and this was why he was making this will. He
said he didn't have any relatives except cousins that he hadn't seen for a long time and that he knew he had given
Mrs. Jones a hard time and he wanted to repay her and so he was giving her his property in his will, which he
wanted us to witness. So finally he signed the paper. My husband had to help him; he took his hand and guided it.
Then we, my husband and myself, signed as witnesses.
Q.
Mrs. Jones, I am going to hand you what has been marked for purposes of identification "Plaintiff's Exhibit A,"
and ask you, if you can, to identify the signatures that appear on that page.
A.
Yes. One is the signature that Mr. Smith made with my husband's help, and the other two are my husband's and
mine.
Q.
Is that the paper you three signed on the occasion you have just described?
A.
Yes, it is.

Q.
Where does Mr. Smith's signature appear in relation to yours?
A.
It is above mine and my husband's, and on the other side of the page.
Q.
Did you hear Mr. Smith say anything regarding payment to Mrs. Jones for her services on any other occasion
than the one when you witnessed his signature?
A.
Yes, about six months after she started working for him he said something to me about not having enough ready
cash to pay her what she deserved, she had been such a help; and he was going to leave her something after he had
gone.
It is a rare case in which a lawyer finds a single witness or even a group of witnesses as good as this hypothetical one. If
the testimony of the witness stands up on cross examination, it is evident that the plaintiff's case will be won. The only issue
then would be how much compensation was she entitled to for her services. The line of questioning and the answers given in
the example are useful as an illustration of the way to proceed to establish the matters sought to be proven. It might be
questioned whether the background testimony relating to the period before the services commenced has been overdone, and
the court might be inclined to limit it, but a certain amount of such evidence is certainly proper to show the decedent's need
for the services and the fact that the plaintiff did not impose herself on him. Certainly, the testimony about Mrs. Smith's death
would allay the jury's sympathy for a possible widow. The testimony that the only relatives were cousins would help also to
improve this aspect of the case.
Of course, the jury will wonder why the three-year old will was changed so that Mrs. Jones wasn't compensated.
However, counsel should not go to any great lengths to develop the facts explaining the decedent's behavior in this respect.
His senility has been at least suggested in the witness' testimony; that, together with the fact that he was taken away, and
plaintiff's services were terminated, by the "long-lost" cousin, should be sufficient to permit the jury to draw the only
necessary conclusion, namely, that the change in decedent's will was not motivated by any dissatisfaction with plaintiff's
services. In another case, it may appear that as the decedent grew more senile, the plaintiff could no longer handle him, and
that he finally ordered the plaintiff out of his house and then changed his will.
§ 63. Presentation of plaintiff's case—Action for partnership accounting
In a suit for a partnership accounting by the fiduciary against a survivor carrying on the partnership business trial
technique will largely involve the proper handling of the interrelation between oral testimony and documentary evidence. If
the fiduciary's counsel decides to call the survivor for cross-examination, as he may very well be forced to do, he may wish to
encourage the defendant to commit himself to his position in his oral testimony and then present him with the documents if
they are conflicting. If he attempts to explain the conflict, there may be other documents that will conflict with the
explanation. In such cases, the value of the testimony of the defendant may be destroyed even if his counsel recalls him, and
the court will in addition, be encouraged to accept the plaintiff's construction of what the documents mean.
When examining other witnesses, the plaintiff may be confronted with a different problem. He will probably be forced to
call employees of the former partnership and others who had done business with it who are now employed by the survivor or
have business ties with him. Such witnesses can be expected to be hostile but counsel should not count on being allowed to
cross-examine them. If possible, such a witness should be examined only as to matters about which his answers will be
favorable to the plaintiff. For example, if counsel desires to establish the correctness of the contents of a particular document,
he should first hand the witness the document, ask him to peruse it, and then question him about its contents. It is probable
that he will not contradict the document. For example, if the bookkeeper is on the stand and counsel desires to establish that a
transaction occurred on January 8, he should hand the witness the partnership ledger, establish that the entries were made by
her, refer her to the sheets showing the transaction entered as of a certain date and then ask her when it occurred.
§ 64. Presentation of defendant's case—Action for personal services
Laying aside the possibility that the credibility or character of the plaintiff may be subject to attack, so that the defense
may decide to waive the "dead man" statute, the defense in an action for personal services will probably cover several more
or less interrelated aspects. For example, the defendant will seek to insert doubt into the minds of the jurors that plaintiff
performed all of the services she claims she performed; he will seek to show that whatever arrangement existed between the
plaintiff and the defendant was as much for her benefit as it was for his, thereby creating doubt that a promise to pay existed
or should be implied; and he will seek to minimize damages.
Let us assume that the defense calls Thomas Kinney, a retired stockbroker who knew Mr. Smith, the decedent, as a
fellow member of a service club. The following line of questioning might be pursued:
Q.
Mr. Kinney, did you know John Smith?
A.
Yes, we were in Seramis together and I used to handle his brokerage account before I retired three years ago.
Q.
How long have you known him?
A.
Since about 1955, when I joined the club. He had already been a member for some years previous. I started
handling his account about two years later, about the same time that we worked on a children's benefit together.
Q.
How often did you see him?
A.
Well, we had our meetings every Tuesday at noon in the President's Ballroom of the Lincoln Hotel and I would
see him there just about every week. We are supposed to maintain our attendance and we both did. Then he would
come into our office about every day after lunch to watch the board. He was retired.
Q.
Did this continue until his death?
A.
No. He got sick about five or six years before his death and had to go to the hospital, so I didn't see him then for
about three months except at the hospital. I was on the cheer-up committee and I tried to go over to see him as often
as possible.
Q.
Did you see him again at club meetings after he was discharged from the hospital?
A.
Yes, he gradually worked back into regular attendance.
Q.
Did he resume his visits to your brokerage office?
A.
Yes, he was finally able to get back into the office about every day.
Q.
Did Mr. Smith get sick again, Mr. Kinney?
A.
Yes. He had just been back at the office on a daily basis for, oh, six months to a year, and he had another attack
or stroke.
Q.
Was he in the hospital on that occasion?
A.
Yes. For a longer period this time. He was never able to get back to the club on a regular basis after that.
Q.
Did he come to the club at all?

A.
Oh, yes, but he asked to be put on the inactive list, and only showed up for meetings once or twice a month.
Q.
When did he ask to be put on inactive status?
A.
I'm not too sure about the year. However, it was in the summer because at his first meeting he complained about
the heat outside and the air conditioning in the hotel being too cold.
Q.
What was his physical condition as you observed it after his second trip to the hospital?
A.
He had lost a lot of weight and he was pretty thin. His face was lined. He was pretty weak and moved very
slowly. Also, his mouth drooped at one side and he was a little hard to understand when he spoke. You could
understand him but you had to work at it.
Q.
Did he come to your office after this second episode?
A.
Yes, but not every day; perhaps once or twice a week. He used to call every day, though, to find out how the
market was going.
Q.
Did he place any orders?
A.
Oh yes. He wasn't a regular trader, but he did buy and sell on occasion.
Q.
How long did this continue?
A.
Pretty much until I retired.
Q.
When did you retire?
A.
On November 18, 1970. I finished out the year until my replacement was trained.
Q.
Did you see him after that?
A.
Not so much. He didn't come to meetings much anymore. He was getting weaker. But he used to call me about
securities. I still kept my hand in the business, helped my old customers, and the office let me place orders. It was
set up that way when I retired.
Q.
Did you continue to advise him about investments after your retirement?
A.
Yes.
Q.
Did he continue to buy and sell securities through you after your retirement?
A.
Yes.
Q.
How long did this continue?
A.
Until he moved away, to Springfield, I believe.
Q.
When was that?
A.
Sometime in the fall of 1971.
It will be noted that the preceding testimony gives a rather different picture of the decedent. The testimony contradicts
the description of a helpless invalid put forth by the plaintiff's witnesses. This tends, of course, to minimize the necessity for
the tedious nursing care and business services testified to previously.
For purposes of illustration, it is assumed at this point that the defense called Mrs. Youngblood, who lived in the house
in back of Mr. Smith. Her testimony might be as follows:
Q.
Mrs. Youngblood, how long have you lived at 488 Main Street?
A.
Since August 30, 1970.
Q.
Do you know where John Smith lived while he was a resident of Black Rock?
A.
Yes, he lived in the house right in back of mine.
Q.
Did anyone live with him?
A.
Yes, Mae Jones did.
Q.
Do you know Mrs. Jones?
A.
Yes, I do.
Q.
How soon after you moved to your present residence did you become acquainted with her?
A.
Right away. She was very nice to me at first, told me about the garbage collection and the trash and that sort of
thing. Then I think our kids and dog started to get on her nerves a little. But we never had any arguments or
anything. She just had a way of letting me know if the kids did anything wrong.
Q.
How many children do you have?
A.
Three boys and a girl.
Q.
Were you able to observe the Smith premises from your home?
A.
Yes, my kitchen window faces our back yard and I could look out the window into Mr. Smith's yard while I was
cleaning up the dishes. I used to hang wash in the backyard too, until we got a dryer last summer.
Q.
Did you observe Mrs. Jones hanging wash to dry?
A.
Once in a while.
Q.
How often was that?
A.
Well, mostly in the summer when she wore wash dresses and this would be twice a month or so as I recall.
Q.
Just dresses?
A.
Well, women's things mostly.
Q.

No sheets?
A.
Not very often.
Q.
Did you talk with Mrs. Jones, on occasion?
A.
Yes, she would come out in the mornings and sit in the sun for a while and I might be out with the children or
hanging wash or something and we would talk.
Q.
Was it always in the morning?
A.
Mostly. I seldom saw her in the afternoon, except when she came around the corner to catch a downtown bus in
front of our house.
Q.
How often did this happen? Catching a bus, I mean.
A.
Quite frequently, almost every day in fact.
Q.
Did she return to the Smith house from these bus trips?
A.
Not that I ever saw; she wasn't around much in the afternoon.
Q.
Do you recall having any conversations with Mrs. Jones about Mr. Smith or about Mr. Smith's house?
A.
Oh, she used to complain once in a while about his being so hard to please, particularly about his food. I
remember commenting once, soon after we moved in, about her yard and how nice it looked. She said yes, this was
the nicest place she had ever lived. We got to talking about places we had lived and she said she had been so happy
she had been able to come there. She told me she had lived in a little apartment over a grocery store for a while after
her husband died and had had a hard time of it with only social security to live on. She said she paid nothing to Mr.
Smith for room and board.
Obviously, this is not the picture of a sincere person working her fingers to the bone for an unappreciative old invalid.
She is getting a nice place to live. She does her own washing, but no one else's. Her afternoons are free and she seems to have
plenty of leisure time in the morning. The jury would be left to decide between two lines of testimony that are not entirely
contradictory but that give two definitely different pictures of the services performed by plaintiff and the benefits conferred
on decedent. Moreover, it will also have to decide, if it believes plaintiff should be paid for her services, just what amount
should be charged against the recovery for room and board furnished her by decedent.
§ 65. Summation in action for personal services—Plaintiff
The closing argument or summation gives counsel for the plaintiff the opportunity to emphasize the evidence favorable
to his client and tie it all together in such a way that it will make a simple story for the jury's comprehension.[66] It is the
climax of the trial, the point at which the plaintiff's lawyer can give his arts of advocacy their full vent. The summation must
be forceful and persuasive. It should be long enough to fully explain the case to the jury, but it should also be as brief as
possible to avoid tediousness.
It should review the need for the services by the decedent, and, perhaps, re-emphasize matters that are not technically
relevant to the case but that might nevertheless be important to the jury's decision, such as the decedent's family situation.
Thus, after a brief introduction, counsel might begin as follows:
Ladies and gentlemen, you have heard Mrs. Davis and Mrs. Heinrich tell about how old John Smith was, that he was
alone and sick. He had lost his wife and had no children to take care of him. He had come home from the hospital after a
serious illness and was so disabled and feeble that he was unable to take care of himself. He didn't want to go to a rest
home. He wanted to stay in his own home so that he could see his roses and lilac bushes and all the other flowers he and
his wife had raised. So, with the help of Mrs. Heinrich and Mrs. Davis, the plaintiff, Mae Jones, was persuaded to come
to his house to cook for him and keep house and take care of him so that he could stay in his own house and not have to
go to a nursing home.
Plaintiff's counsel has had the problem of not being able to offer complete proof of the services. They continued over a
period of years in circumstances in which no witness could have observed all of them or a major portion of them. They were
not tangible in character. Counsel should, therefore, ask the jury to fill in the gaps in the evidence he has presented. He will
probably also wish to allude again to the plaintiff's disqualification in case the jurors missed his reference to this in his
opening statement and are still wondering about the plaintiff's failure to testify. Thus, he might say:
Unfortunately, my friends, you have not been permitted to hear from the two people who could tell you all about all the
work plaintiff did for John Smith during the more than three years she worked for him and what the arrangement was for
payment for her services. Mr. Smith is dead, and the law does not allow Mrs. Jones to tell what happened. The law
deems it fairer that if one of the parties is silenced by death, the other party should also be silenced as a witness. But you
heard Mrs. Davis tell about what she saw the plaintiff do over the years. Mrs. Heinrich's testimony supported her,
although she moved to another part of town about two years before Mr. Smith died and was therefore not familiar with
the situation for as long as Mrs. Davis. Both of these women testified that Mr. Smith was old and sick and in no
condition to take care of himself, let alone of the house. Both of them were in the house frequently, Mrs. Davis all
through the time the plaintiff was there and Mrs. Heinrich for the greater part of it. They both said that the house was
neat. Mrs. Heinrich said it was always spotless. Who kept the house in such good condition? Certainly not John Smith;
he wasn't able to do it.
Mrs. Davis was in the house at various times of the day. She was apparently in the habit of just dropping in. It wasn't as
if she were always invited as a guest so that the plaintiff would be expected to have the house ready for her, all tidied up.
The house was always in good order. Mrs. Davis saw her doing the washing and ironing on several occasions, saw her
prepare meals, saw her cleaning Mr. Smith up. It is too much to believe, ladies and gentlemen, that these occasions were
staged just for the benefit of Mrs. Davis or anyone else who might have happened by. It can only be believed, and all the
evidence demands that you find as a fact that the cooking, the housecleaning, the laundry, and all the other work needed
to keep a house going and to take care of an invalid were performed by Mrs. Jones from the time she came to Mr.
Smith's house on April 5, 1967, until she left in the fall of 1971.
As to the matter of compensation:
Can it be supposed that anyone would come to take care of a man to whom she owed no duty by reason of blood or other
relationship without some expectation of being paid? Can you believe this? Could anyone reasonably expect to receive
the benefit of these services without paying something for them? Granted that Mrs. Jones is a kind person, anyone would
have to be kind to do what she did for three long years and keep at it, doing the unpleasant jobs like laundering the soiled
bedclothes. You heard Mrs. Davis testify about Mr. Smith's unfortunate difficulties in this respect. This was duty over
and above the demands of kindness, the desire to help an unfortunate person. It deserves to be compensated, ladies and
gentlemen, the compensation the recipient would expect to give. Granted, Mae Jones got free room and board but this is
what would be expected for anyone whose duties require she be in constant attendance. Mrs. Jones wasn't working an
eight-hour day. She had to be there to take care of Mr. Smith from the time he awoke in the morning until he went to bed
at night.
Mr. Smith understood that. You heard Mrs. Heinrich testify that he said several times in Mrs. Jones' presence that she
would be taken care of when he died. You heard Mrs. Davis tell about witnessing a will which left property to the
plaintiff in return for all the work she had done. You have that will before you in evidence. John Smith felt an obligation

at the time he made the statements to Mrs. Heinrich and at the time he signed the will. But after he made this will his
cousins finally decided they should do something for the old man. You heard Mrs. Davis tell about how Frederick Smith
and his wife came to visit in the fall of 1972 and how after a week or so the old man went to live with them in
Springfield.
The following argument would be proper on plaintiff's rebuttal:
"Ladies and gentlemen, you heard Mrs. Davis and Mrs. Heinrich. You observed their actions on the witness stand and
how they answered the questions I put to them and the questions defense counsel asked them. They were frank and open.
They had no reason to tell anything other than the true facts as they observed them, and they had the opportunity to
observe them. They lived next door to Mr. Smith. Mrs. Davis was there all during the time the plaintiff worked for him.
They were in the house where most of the work was done on many occasions. Mr. Kinney, the stockbroker who testified
for the executor, was a business and club acquaintance. He admitted he had never been in Mr. Smith's house. Mrs.
Youngblood didn't move into the neighborhood until two years after the plaintiff came. She also admitted she had never
been in the Smith house. There is conflict between the testimony of plaintiff's witnesses and defendant's witnesses, but
there was no disagreement about the fact that John Smith was a very old man. There was no conflict about the fact that
he had had a serious illness in the spring of 1967 and that his physical condition was worse after this illness. There is no
question in the testimony that Mr. Smith lived alone before the plaintiff came into his house. While there is disagreement
as to the extent of his disability, can you believe that an old man who had survived a serious illness that impaired his
speech and palsied his hands could take care of himself without help? These are the basic facts, the disagreement is to
details and degree. I believe that you must and will follow the testimony of the witnesses who had the best opportunity to
know all of the facts. These witnesses are Mrs. Davis and Mrs. Heinrich.
§ 66. Summation in action for personal services—Defendant
In his summation counsel for the defendant will be required to emphasize the discrepancies between the plaintiff's claim
and her evidence the testimony of the defense witnesses, which, if believed, would cast doubt on both:[67]
My friends, the plaintiff's witnesses would have you believe that John Smith was a helpless invalid throughout the years
1967, 1968, 1969, 1970, and 1971. He was so weak they say that he had to be helped into the dinner table. He had no
control over his bodily functions. Yet Mr. Kinney testified that he came to club meetings about twice a month for much
of this period, and that he came to the stockbroker's office about twice a week. He didn't need anyone to help him get
there. Are these the acts of a hopeless invalid? I don't think so, and I don't think that you think so either.
Defendant will also emphasize the benefits that have already accrued to the plaintiff and minimize the burden of
plaintiff's labors.
The evidence leaves no doubt that the plaintiff was given shelter under John Smith's roof. There is no question that while
she cooked food, she also helped eat it. You heard Mrs. Youngblood tell about her conversations with Mae Jones. The
plaintiff said Mr. Smith's house was the nicest place she had ever lived in. She also told Mrs. Youngblood that she had
been having trouble making ends meet in the modest apartment she lived in before she came to Mr. Smith. Whatever
work Mrs. Jones did for Mr. Smith, she was well compensated for it. When she left his house in the fall of 1971, they
were quits, their accounts were even.
And what work did she do? I am not saying she did nothing, but whatever she did, she apparently had enough time on
her hands to sun herself in the back yard on summer mornings and to go downtown in the afternoons. Mrs. Youngblood
testified to that. She wasn't the drudge the plaintiff's witnesses would have you believe she was.
Counsel for the defense will also want to build up the credibility of his witnesses as opposed to that of plaintiff's
witnesses:
Ladies and gentlemen, I ask you to consider the witnesses for the plaintiff and their relationship to the plaintiff. These
ladies are all good friends. Mrs. Heinrich knew the plaintiff before she came into John Smith's house. Mrs. Davis got to
be quite friendly with her after she got there. It was obvious throughout their testimony that they like her very much. You
must ask yourself whether this friendship did not color their testimony. Not that they lied; I don't think they lied, but isn't
it natural to want to help a friend? Mightn't this desire have unconsciously affected their memories of certain events?
Might it not have led them, again unconsciously, to magnify John Smith's physical problems and the length of time they
existed? On the other hand, Mr. Kinney had no interest whatsoever. He didn't know the plaintiff, only the dead man. He
was completely disinterested. Mrs. Youngblood also has no interest one way or the other. She was only acquainted with
the plaintiff. She was not a friend of hers. All in all I am sure you will see upon reflection that while plaintiff's witnesses
are bound to her by friendship, those of the defendant are free to recall the facts as they saw them and transmit them
accurately to you without being influenced by their high regard for the plaintiff.
§ 67. Preparation of proposed findings of fact and brief on the law in an accounting suit
As stated before, the partnership accounting suit will probably be submitted for decision on the exhibits and the
transcript of the testimony, and the proposed findings of fact and briefs of counsel. The written briefs will be a major factor in
controlling the decision of the case. A logical, well-written brief may very well turn the tide, particularly when the court or
master may have lost his way in a mass of apparently unrelated testimony and exhibits.
It is suggested that the parties submit proposed findings of fact with arguments referenced to specific pages of the record
and specific exhibits supporting each proposed finding. This would be wise even though the judge or master may not have
requested proposed findings. The fact argument should be broken down according to the ultimate facts necessary to prove the
case under the law of the case. Of course, the evidence will not categorize itself so neatly. Counsel should not lose sight of
the fact that certain passages of the testimony and the documents may bear on more than one point.
The purpose of the fact argument should be to marshal the evidence in so logical and precise a manner that the judge will
have no choice but to make findings according to the lawyer's suggestions. There will always be evidence in the record that
will not fit the pattern, but if the argument holds together analytically, the trier will be apt to accept the advocate's
interpretation despite the presence of these embarrassing contradictions.
The facts should be argued separately from the law. There may be mixed questions of fact and law which would
necessitate repetition in order that both sections of the brief be logical and reasonable. It does seem, though, that when
presenting written arguments to a judge, counsel ought to organize his presentation so that it does not skip back and forth
between law and fact arguments without logical separation. The judge or master will be acutely aware of his dual and
separate functions as trier of the facts and arbiter of the law. If he finds that counsel has not treated the two aspects
separately, and is therefore required to winnow through the brief and the record to make the analysis that counsel failed to
make, he will be apt to conclude that the plaintiff's counsel does not understand his own case, or worse yet, that the case is so
bad that counsel has no choice but to throw up a smoke screen. At this juncture, the possibility of his returning favorable
findings and conclusions may be materially reduced.
The findings of fact and memorandum on the law should be as concise as possible while covering the necessary points.
A 30-page brief often is three times as effective as a 100-page one because it is simpler to read and cuts down the amount of
time the judge must give to it. The last 70 pages are likely to irk him. A conscientious judge will undoubtedly be thinking of
all the other cases he has to decide before the term ends. Therefore, if there is one favorable controlling case on a point, it
should be cited and the other three that support it omitted. If there is no controlling case, the two or three better reasoned ones
most analogous on the facts should be used, leaving out the dozens that bear on the case at hand only marginally.
As between the facts and the law, the facts are more important. Time and energy is better spent making a compelling
argument as to the facts than as to the law. The old axiom that once a judge is won over on the facts, all that remains to be

done is to give him the law to "hang his hat on," holds true.
Westlaw Databases
Advising the Elderly Client (ADVELD)
Estate Planning & Probate—Law Reviews, Texts & Bar Journals (EPP-TP)
Restatement of the Law—Property (REST-PROP)
RIA Estate Planning Collection Complete (RIA-EST)
Wills & Trust Forms & Clauses (RIA-ESTW&TRIA)
Will Contests, Second Edition (WILLCONTESTS)
Wills (WILLS)
West's Legal News: Estate Planning and Probate (WLN-EPP)
A.L.R. Library
Construction, and application of "pay-all-taxes" provision in will, as including liability of nontestamentary property for
inheritance and estate taxes, 56 A.L.R. 5th 133
Wrongful death damages for loss of expectancy of inheritance from decedent, 42 A.L.R. 5th 465
Action for tortious interference with bequest as precluded by will contest remedy, 18 A.L.R. 5th 211
What constitutes "legal representative" or "personal representative" entitled to receive insurance proceeds on account of
loss suffered by deceased, 40 A.L.R. 4th 255
What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected
claims, 36 A.L.R. 4th 684
Attorney's delay in handling decedent's estate as ground for disciplinary action, 21 A.L.R. 4th 75
Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of
claims against decedent's estate, or limiting time for bringing action thereon, 17 A.L.R. 4th 530
Determination of price under testamentary option to buy real estate, 13 A.L.R. 4th 947
Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust, 6 A.L.R. 4th
786
Husband's death as affecting periodic payment provision of separation agreement, 5 A.L.R. 4th 1153
Conduct of attorney in capacity of executor or administrator of decedent's estate as ground for disciplinary action, 92
A.L.R. 3d 655
Enforceability of contract to make will in return for services, by one who continues performance after death of person
originally undertaking to serve, 84 A.L.R. 3d 930
Propriety of court's appointment, as administrator of decedent's estate, of stranger rather than person having statutory
preference, 84 A.L.R. 3d 707
Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of
value of earnings decedent would have made after death, 76 A.L.R. 3d 125
Validity of claims against estate filed prior to publication of notice to creditors, 70 A.L.R. 3d 784
Use of evidence excludable under dead man's statute to defeat or support summary judgment, 67 A.L.R. 3d 970
Statutes excluding testimony of one person because of death of another as applicable to attorneys, 67 A.L.R. 3d 924
Garnishment against executor or administrator by creditor of estate, 60 A.L.R. 3d 1301
Executors and administrators: Construction of statutory provision giving priority on distribution to claims for wages of
servants, employees, or the like, 52 A.L.R. 3d 940
Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff, 36 A.L.R.
3d 693
Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person
in whose favor it would have accrued, 28 A.L.R. 3d 1141
Amount of claim filed against decedent's estate as limiting amount recoverable in action against estate, 25 A.L.R. 3d
1356
Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness, 23 A.L.R. 3d 389
Rent or its equivalent accruing after lessee's death as expense of administration of his estate, 22 A.L.R. 3d 814
Tort claim as within nonclaim statutes, 22 A.L.R. 3d 493
Social or business relationship between proposed juror and nonparty witness as affecting former's qualification as juror,
11 A.L.R. 3d 859
Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R. 3d
1234
Application of nonclaim statute to claim for unmatured payments under land contract, 99 A.L.R. 2d 275
Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues
of case, 99 A.L.R. 2d 7

Place of personal representative's appointment as venue of action against him in his official capacity, 93 A.L.R. 2d 1199
Relationship of juror to witness in civil case as ground of disqualification, 85 A.L.R. 2d 851
Preference or priority of claims arising out of continuation of decedent's business by personal representative, 83 A.L.R.
2d 1347
Propriety of inquiry on voir dire as to juror's attitude toward amount of damages asked, 82 A.L.R. 2d 1420
Competency of witness in wrongful death action as affected by dead man statute, 77 A.L.R. 2d 676
Previous knowledge of facts of civil case by juror as disqualification, 73 A.L.R. 2d 1312
Professional or business relations between proposed juror and attorney as ground for challenge for cause, 72 A.L.R. 2d
673
Applicability of dead man statute to proceedings to determine liability for succession, estate, or inheritance tax, 66
A.L.R. 2d 714
Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to
personal representative, 66 A.L.R. 2d 659
Admissibility of evidence of value or extent of decedent's estate in action against estate for reasonable value of services
furnished decedent, 65 A.L.R. 2d 945
Necessity of presenting spouse's claim under separation agreement to personal representative of other spouse's estate, 58
A.L.R. 2d 1283
Exclusiveness of grounds enumerated in statute providing, under specified circumstances, extension of time for filing
claims against decedent's estate, 57 A.L.R. 2d 1304
Amendment of claim against decedent's estate after expiration of time for filing claims, 56 A.L.R. 2d 627
Rights in profits earned by partnership after death of partner, 55 A.L.R. 2d 1391
What constitutes claim or demand against estate within statute disqualifying witness, 54 A.L.R. 2d 1103
Propriety of compelling witness to testify, in pretrial proceeding, as to matters which would be prohibited in trial
testimony by dead man's statute, 42 A.L.R. 2d 578
Claim of government or subdivision thereof as within provision of nonclaim statute, 34 A.L.R. 2d 1003
Examination and the like of one witness incompetent under dead man statute as waiver of incompetency of other
witnesses, 33 A.L.R. 2d 1440
Time for filing claim based on promise not to make a will, 32 A.L.R. 2d 370
Dead man's statute as applicable to spouse of party disqualified from testifying, 27 A.L.R. 2d 538
Introduction of decedent's books of account by his personal representative as waiver of "dead man's statute.", 26 A.L.R.
2d 1009
Death of one coparty to contract or transaction, including copartner, as affecting competency of adverse party or
surviving coparty to testify as against each other or as against estate of decedent, 22 A.L.R. 2d 1068
Constitutionality and construction of statute authorizing constructive or substituted service of process on, and
continuation of pending action against, foreign representative of deceased nonresident driver of motor vehicle, arising out of
accident occurring in state, 18 A.L.R. 2d 544
Dead man's statute as applicable to testimony denying transaction or communication between witness and person since
deceased, 8 A.L.R. 2d 1094
Recovery for services rendered by member of household or family other than spouse without express agreement for
compensation, 7 A.L.R. 2d 8
Section 42 of Uniform Partnership Actas to rights of parties where business is continued after a partner retires or dies, 2
A.L.R. 2d 1084, 2 A.L.R. 2d 1084
Federal Rule 43(a)as applied to testimony concerning transaction or conversation with person deceased, 170 A.L.R. 1242
Competency of stockholder as a witness where corporation is a party to a suit prosecuted by or against the personal
representative of a decedent, 163 A.L.R. 1215
Status as officer, employee, or taxpayer of public body, party to the suit, as raising a disqualification under statute
excluding testimony of one person because of death of another, 163 A.L.R. 973
Competency of juror as affected by his participation in a case of similar character, but not involving the party making the
objection, 160 A.L.R. 753
Statute excluding testimony of one person because of death of another as applicable to testimony as to services upon
which his claim against decedent's estate is based, 155 A.L.R. 961
Nonresident motorist's death as revoking statutory agency of state official to accept substituted service of process, 155
ALR 333, 155 A.L.R. 333; 53 A.L.R. 2d 1164
Statute disqualifying one person as witness because of death of another as disqualifying one who has a claim against
decedent's estate from testifying in support of another's similar claim, 145 A.L.R. 566
Bar of statute of limitation or nonclaim statute against action or proceeding to enforce debt against estate as affecting
right to maintain suit by creditor to set aside conveyance by deceased (debtor) as fraud upon creditors, 138 A.L.R. 246
Rank of foreign judgment, or judgment of sister state, rendered in lifetime of debtor, in settlement of debtor's estate after
his death, 128 A.L.R. 1400
Construction and application of statutory provisions as to classification or priority of claims against decedent's estate in

respect of money or property received by decedent in trust or as a fiduciary, 125 A.L.R. 1487
Rank of creditor's claim against decedent's estate or his rights in respect of property of estate as affected by reduction of
his claim to judgment against executor or administrator, or levy of attachment or execution, 121 A.L.R. 656
Filing claim against estate of decedent as affecting or precluding other remedies against estate, 120 A.L.R. 1225
Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of
claims against decedent's estate, or limiting the time for the bringing of action thereon after rejection by personal
representative, 120 A.L.R. 275
Effect of statement of claim against decedent's estate regarding debt apparently barred by the statute of limitations, 119
A.L.R. 426
Who entitled to contest, or appeal from, allowance of claim against decedent's estate, 118 A.L.R. 743
Applicability to existing claims of statute shortening period for filing claims against decedent's estate; and
constitutionality of statute as so applied, 117 A.L.R. 1208
Disqualifying relationship by affinity in case of judge or juror as affected by dissolution of marriage, 117 A.L.R. 800
Statutes excluding testimony of one person because of death of another as applicable in proceeding to probate will, 115
A.L.R. 1425; 173 A.L.R. 1282
Presentment of claim or notice to one or more coadministrators, coexecutors, coguardians, or cotrustees as presentment
or notice to all, 115 A.L.R. 390
Effect of filing, failing to file, or privilege of filing judgment as claim in probate, 114 A.L.R. 1165
Necessity of presenting claim against decedent's estate for specific performance of a contract to make a will in favor of
another or to will the latter a specified sum or property, 113 A.L.R. 1070
Priority in event of incompetent's death of claims incurred during guardianship over other claims against estate, 113
A.L.R. 402
Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations, 112 A.L.R.
289
Claims for taxes as within contemplation of statute requiring presentation of claims against decedents' estates, 109
A.L.R. 1370
Constitutionality, construction, and application of statute forbidding suit against representative of estate until expiration
of prescribed period, 104 A.L.R. 892
Necessity of presenting claim against decedent's estate as affected by executor's or administrator's personal duty or
obligation to claimant, 103 A.L.R. 337
Delay of claimant, after filing claim against decedent's estate, to press its establishment or enforcement, 100 A.L.R. 241
Applicability of statute of nonclaim or limitation statute as between surviving partner and estate of deceased partner, 96
A.L.R. 441; 157 A.L.R. 1114
Claim on decedent's contract of guaranty, suretyship, or indorsement as contingent within statute of nonclaim, 94 A.L.R.
1155
Necessity of filing claim under workmen's compensation act against estate of deceased employer, 94 A.L.R. 889
Rank or preference of claim against estate in respect of superadded liability on corporate stock owned by decedent
whose estate is insolvent, 92 A.L.R. 1040
Priority received by creditors as regards ancillary assets of receivership or decedent's estate as justification for reducing
their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among
creditors as regards total assets, 92 A.L.R. 596; 127 A.L.R. 504
Summary proceedings for recovery of property belonging to a decedent's estate as means of collecting debt, 88 A.L.R.
853
Challenge of proposed juror for implied bias or interest because of relationship to one who would be subject to challenge
for that reason, 86 A.L.R. 118
Accountability of partner or joint adventurer for profits earned subsequently to death or dissolution, 80 A.L.R. 12; 55
A.L.R. 2d 1391
Nonclaim statute as applied to real estate mortgage or mortgage debt, 78 A.L.R. 1126
Lack of partnership accounting as tolling Statute of Limitations against actions at law between partners, 77 A.L.R. 426
Sufficiency of notice of claim against decedent's estate, 74 A.L.R. 368
Construction and application of statutory provisions excusing under certain conditions compliance with requirement as
to filing claim against decedent's estate, 71 A.L.R. 940
Right to introduce extrinsic evidence in support of challenge to juror for cause, 65 A.L.R. 1056
Necessity of presenting, probating, or prosecuting claims for allowance as affected by provision of will directing
payment of debts, 65 A.L.R. 861
Examination of witness as waiver of his incompetency as to transactions or conversations of decedent, 64 A.L.R. 1148;
107 A.L.R. 482; 159 A.L.R. 411
Statutory grounds for challenge of jurors for cause as exclusive of common-law grounds, 64 A.L.R. 645
Effect of recovery of judgment on unfiled or abandoned claim after expiration of time allowed for filing claim against
estate, 60 A.L.R. 736
Decree of foreclosure which ascertains amount of mortgage debt or other claim as judgment within statute relating to

rank of claims against decedent's estate, 57 A.L.R. 489
Circumstances other than relationship of parties which repel inference of an agreement to pay for work performed at
one's request, or with his acquiescence, 54 A.L.R. 548
Recovery on quantum meruit by one who breaches contract to serve or support another for life, 47 A.L.R. 1162
Applicability of statute of nonclaim to superadded liability of stockholders, 41 A.L.R. 180; 51 A.L.R. 772; 87 A.L.R.
494
Applicability of nonclaim statute in case of misappropriation or fraudulent breach of trust by decedent, 41 A.L.R. 169
Applicability of nonclaim statutes to claims arising under contract executory at the time of death, 41 A.L.R. 144; 47
A.L.R. 896
Constitutionality of statute allowing suit to be instituted or continued against foreign executors or administrators, 40
A.L.R. 796
Necessity of presenting claim to executor or administrator before bringing suit, 34 A.L.R. 362
Competency of agent with whom transaction by person since deceased was had, to testify adversely to estate, 21 A.L.R.
928; 54 A.L.R. 264
Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities, 13 A.L.R.
1033
Effect of conduct of personal representative preventing filing of claim against estate within time allowed by the statute of
nonclaims, 11 A.L.R. 246; 66 A.L.R. 1415
Death of obligee as affecting competency of obligor to testify in favor of co-obligor, 2 A.L.R. 1477
Filing a claim against decedent's estate as an unsecured claim, as a waiver of a mortgage or other lien, 2 A.L.R. 1132
Sufficiency of suggestion of death of party, filed under Rule 25(a)(1) of Federal Rules of Civil Procedure, governing
substitutions of party after death, 105 A.L.R. Fed. 816
Legal Encyclopedias
Enforcement of mechanic's lien against property of decedent. 31 Am. Jur. 2d, Executors and Administrators § 286
Running of statute of limitations against continuing contractual cause of action. 51 Am. Jur. 2d, Limitation of Actions §
92
Duty of surviving partners to account to deceased partner's personal representative. 59 Am. Jur. 2d, Partnership §§ 257,
258
Trial Strategy
Proof of Decedent's Intent That Intervivos Gift to Heir Constitutes Advancement, 83 Am. Jur. Proof of Facts 3d 295
Determination of Heirship, 68 Am. Jur. Proof of Facts 3d 93
Proof of Survivorship of Common Disaster, 56 Am. Jur. Proof of Facts 3d 255
Presumption or Inference of Death From Unexplained Disappearance, 45 Am. Jur. Proof of Facts 3d 307
Self-Dealing by Trustee, 38 Am. Jur. Proof of Facts 3d 279
Proof of Entitlement to, or Disqualification From, Status as Decedent's Personal Representative, 31 Am. Jur. Proof of
Facts 3d 433
Terms of Oral Contract with Decedent, 39 Am. Jur. Proof of Facts 2d 91
Opening door to testimony banned by "dead man" statute. Deceased, Conversations and Transactions With, 4 Am. Jur.
Proof of Facts 191, 192
"Dead man" statutes. Deceased, Conversations and Transactions With, 4 Am. Jur. Proof of Facts §§ 190 et seq.
Will Contests, 96 Am. Jur. Trials 343
Evaluation of Structured Settlements, 31 Am. Jur. Trials 595
Defense Use of Economists, 31 Am. Jur. Trials 287
Selecting the Jury—Defense View, 5 Am. Jur. Trials 247
Factors to be considered in selection or rejection of jurors. Selecting the Jury—Plaintiff's View, 5 Am. Jur. Trials 143
Avoiding statute of limitations defense. Solving Statutes of Limitation Problems, 4 Am. Jur. Trials 441
Forms
Forms in discovery proceedings, generally. 1 Am. Jur. Pleading and Practice Forms, Depositions and Discovery, Forms
8
Petition or application for extension of time for filing claim. 10 Am. Jur. Pleading and Practice Forms, Executors and
Administrators, Form 601
Claim and supporting affidavit. 10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, Forms 611–627
Petition for allowance and classification of claim. 10 Am. Jur. Pleading and Practice Forms, Executors and
Administrators, Form 651
Rejection of claim by fiduciary and notice thereof to creditor. 10 Am. Jur. Pleading and Practice Forms, Executors and
Administrators, Forms 659–662

Petition or application in probate court to compel, or to set aside funds for, payment of claim, and notice thereon. 10 Am.
Jur. Pleading and Practice Forms, Executors and Administrators, Forms 891–895, 903
Complaint in plenary action to recover on claim rejected by fiduciary. 10 Am. Jur. Pleading and Practice Forms,
Executors and Administrators, Forms 1454, 1455
Petition or application for allowance and classification of claim. 10 Am. Jur. Pleading and Practice Forms, Executors and
Administrators, Forms 651, 652
Objections to claim. 10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, Forms 655, 656
Order appointing referee in partnership accounting. 15 Am. Jur. Pleading and Practice Forms, Partnership, Forms
15:717–15:719
Complaint by personal representative of deceased partner against surviving partner for an accounting and other relief. 15
Am. Jur. Pleading and Practice Forms, Partnership, Forms 15:731, 15:731.1, 15:732–15:734, 15:734.1, 15:737, 15:738
Complaint by surviving partner against deceased partner's personal representative, for an accounting and other relief. 15
Am. Jur. Pleading and Practice Forms, Partnership, Forms 15:735, 15:735.1, 15:736, 15:736.1, 15:737
Law Reviews and Other Periodicals
20 years later, still Capote's lawyer: attorney balances celebrity client's legacy against wishes of historians, L.A. Daily J.,
November 30, 2005, at 1 (2005 WL 3620981)
A quick guide to the Illinois Dead Man's Act: according to the hornbook definition, the Act is an evidentiary rule barring
testimony by someone with an interest in litigation about any conversation with or event occurring in the presence of a
decedent. But what does that mean? This article offers some answers, 96(7) Ill. B.J. 352 (2008 WL 2657145)
Dead man talking—requiem for summary judgment under Florida's dead man's statute, 78 Fla. B.J. 28 (2004 WL
934188)
Playing the probate card: a plaintiff's guide to transfer to statutory probate court, 36 St. Mary's L.J. 99 (2004 WL
3270295)
Testamentary promises and unjust enrichment, 15 Restitution L. Rev. 37 (2007 WL 5085835)
The deadman's statutes—who is an interested party in Wisconsin? 87 Marq. L. Rev. 1025 (2004 WL 1616484)
The disappointed heir: going beyond the probate process to remedy wrongdoing or rectify mistake, 39 Real Prop. Prob.
& Tr. J. 357 (2004 WL 3113786)
The disclaimer: there are many good reasons to use disclaimers during estate administration, just be careful not to fall
into the self-dealing trap, 144 Tr. & Est. 20 (2005 WL 2388200)
The importance of IRD: greater diligence can help CPAs avoid costly tax return omissions, [income in respect of the
decedent], 197 J. Acct. 79 (2004 WL 811907)
The importance of domicile in asset preservation planning, 79(10) Fla. B.J. 30 (2005 WL 3679296)
Using facilitative mediation in a changing estate planning practice, 32 Est. Plan. 15 (2005 WL 3419903)
When are unequal bequests to children equitable? 31 Est. Plan. 139 (2004 WL 1089355)
Will State Farm be there? Often overlooked property and casualty insurance aspects of common estate planning
transactions, 21(4) Prac. Tax Law. 7 (2007 WL 2247921)
[FN*] Daniel F. Carmack received his B.A. from Ohio State University and his LL.B. from the University of
Virginia Law School in 1951. He was Chief Referee and Deputy to the Probate Judge of Franklin County from 1961
to 1964. Mr. Carmack is the author of "Common Problems in Administration of Decedent's Estates," which
appeared in the Cleveland-Marshall Law Review in January 1965. He has lectured at Probate Law Seminars
sponsored by the Ohio Legal Center Institute, and at various Bar Association meetings. He is presently engaged in
the practice of law in Columbus, Ohio.
Section 2 Footnotes:
[FN1] See Showing Pain and Suffering, 5 Am. Jur. Trials 921 §§ 34, 35, 36; Motorboat Accident Litigation, 7 Am.
Jur. Trials 1 §§ 11, 15; Separate Maintenance Proceedings, 7 Am. Jur. Trials 121 § 91; Airline Passenger Death
Cases, 8 Am. Jur. Trials 173; Federal Tort Claims Act Proceedings, 8 Am. Jur. Trials 635 §§ 20, 21; Will Contests,
9 Am. Jur. Trials 601; Wrongful Death Actions, 12 Am. Jur. Trials 317; Light Aircraft Accident Litigation, 13 Am.
Jur. Trials 557 §§ 72, 73.
[FN2] Handling a will contest case, see Will Contests, 9 Am. Jur. Trials 601.
[FN3] Handling a wrongful death action, see Representation of Survivors in Death Actions, 11 Am. Jur. Trials 1;
Wrongful Death Actions, 12 Am. Jur. Trials 317.
[FN4] Declaratory judgment procedure as vehicle for determination of rights of persons interested in decedent's
estate, see 22 Am. Jur. 2d, Declaratory Judgments § 82.
[FN5] Incapacity of estate as such to be party to litigation, see 31 Am. Jur. 2d, Executors and Administrators § 713.
[FN6] For a discussion of "dead man" statutes, see §§ 7– 11.
[FN7] Priority status of creditors of decedent's estate, see 31 Am. Jur. 2d, Executors and Administrators §§ 463, 464,
467–469, 471, 473, 475.
[FN8] Necessity for administration of decedent's estate having no debts, see 31 Am. Jur. 2d, Executors and
Administrators §§ 8–10.

[FN9] Circumstances warranting or requiring inference of promise to pay for services rendered, see Am. Jur., Work
and Labor §§ 3–10; 17 Am. Jur. 2d, Contracts §§ 3, 4.
[FN10] Facts rebutting or precluding inference of intention to pay for services rendered, in absence of express
agreement, see Am. Jur., Work and Labor §§ 13–31.
[FN11] Dissolution of partnership by death of a partner, in absence of contrary agreement, see 59 Am. Jur. 2d,
Partnership §§ 234–263.
[FN12] Liability of fiduciary for waste in administration of decedent's estate, see 31 Am. Jur. 2d, Executors and
Administrators § 265.
[FN13] Disqualification of, or limitations upon, party as witness with respect to transaction with deceased or insane
person, see Am. Jur., Witnesses §§ 214–217.
[FN14] Disqualification as witnesses of parties and interested persons generally, at common law, see Am. Jur.,
Witnesses § 214.
[FN15] Extent of incorporation of common-law rule of disqualification in "dead man" statutes, see Am. Jur.,
Witnesses §§ 214–216.
[FN16] Purposes of "dead man" statutes, see Am. Jur., Witnesses § 215.
[FN17] Types of "dead man" statutes, see Am. Jur., Witnesses § 214.
[FN18] Applicability of "dead man" statutes to tort actions, see Am. Jur., Witnesses §§ 223, 224, 228, 250, 272.
[FN19] Matters as to which testimony is barred by "dead man" statute in tort cases, see Am. Jur., Witnesses § 250.
[FN20] Applicability of "dead man" statute in workmen's compensation cases, see Am. Jur., Witnesses § 225.
[FN21] See § 7.
[FN22] Disqualification of spouse of party disqualified from testifying under "dead man" statute, see Am. Jur.,
Witnesses §§ 291, 391–323.
[FN23] Disqualification under "dead man" statute of predecessor of party to litigation, see Am. Jur., Witnesses §
317.
[FN24] Disqualification of surety as witness under "dead man" statute, see Am. Jur., Witnesses § 295.
[FN25] Disqualification of co-obligor as witness under "dead man" statute, see Am. Jur., Witnesses § 294.
[FN26] Disqualification of person interested in outcome of litigation as witness under "dead man" statute, generally,
see Am. Jur., Witnesses §§ 1 et seq..
[FN27] Testimony indicating implied-in-fact contract as relating to "transaction" within meaning of "dead man"
statute, see Am. Jur., Witnesses § 242.
[FN28] Disqualification of decedent's personal representative as witness under "dead man" statute, see Am. Jur.,
Witnesses §§ 299 et seq..
[FN29] Disqualification of decedent's heirs as witnesses under "dead man" statute, see Am. Jur., Witnesses §§ 306–
308.
[FN30] Competency of one coparty to testify for another, see Am. Jur., Witnesses § 275.
[FN31] Competency of nominal party to testify for coparty, see Am. Jur., Witnesses § 275.
[FN32] Competency of surviving party's opinion testimony as to handwriting of deceased party, see Am. Jur.,
Witnesses § 257.
[FN33] Competency of officer or agent of corporation to testify in its favor under "dead man" statute, see Am. Jur.,
Witnesses § 313.
[FN34] Disqualification of agents of a corporation as witnesses in its behalf under "dead man" statute, see Am. Jur.,
Witnesses § 315.
[FN35] Competency of stockholders of corporation to testify in its behalf under "dead man" statute, see Am. Jur.,
Witnesses §§ 313, 314.
[FN36] Competency of agent to testify for his principal under "dead man" statute, see Am. Jur., Witnesses §§ 270,
311.
[FN37] Disqualification of agent acting in presence of principal from testifying in latter's behalf under "dead man"
[FN38] Effect of death of agent on competency of principal to testify under "dead man" statute, see Am. Jur.,
Witnesses § 271.
[FN39] Introduction in evidence of deposition of deceased party by adverse party as affecting the latter's statutory
disqualification to testify against deceased's representative, 158 A.L.R. 306.
[FN40] For discussion of various types of "dead man" statutes, see § 7.

[FN41] Inapplicability of "dead man" statutes to events occurring after decedent's death, see Am. Jur., Witnesses §
237.
[FN42] Waiver of benefit of "dead man" statute, see Am. Jur., Witnesses §§ 355–359, 361, 362.
[FN43] Discovery procedures directed to surviving party as effecting waiver of benefit of "dead man" statute, see
Am. Jur., Witnesses § 360.
[FN44] Introduction of discovery proceeding in evidence as essential to finding of waiver of "dead man" statute, see
Am. Jur., Witnesses § 360.
[FN45] Propriety of compelling witness to testify, in pretrial proceeding, as to matters which would be prohibited in
trial testimony by dead man's statute, 42 A.L.R. 2d 578.
[FN46] Scope of waiver of "dead man" statute by examination of surviving party, see Am. Jur., Witnesses § 358.
[FN47] Waiver of absolute disqualification of surviving party, see Am. Jur., Witnesses § 361.
[FN48] Introduction of decedent's deposition by personal representative as effecting waiver of "dead man" statute,
see 3 Jones on Evidence (5th ed.) § 784.
[FN49] Failure of fiduciary to interpose proper or timely objection as effecting waiver of benefit of "dead man"
[FN50] Investigation of civil case, generally, see Investigating the Civil Case; General Principles, 1 Am. Jur. Trials
357; Investigating Particular Civil Actions, 2 Am. Jur. Trials 1.
[FN51] For discussion of requirements of nonclaim statutes and general statutes of limitation with respect to filing
claims in decedents' estates, see §§ 16, 26, 27.
[FN52] Effect of testamentary direction respecting claim as affecting necessity for its presentation, see 31 Am. Jur.
2d, Executors and Administrators § 275.
[FN53] For discussion of priority of claims, see § 5.
[FN54] Techniques for interviewing clients generally, see Interviewing the Client, 1 Am. Jur. Trials 1.
[FN55] Factors to be considered in setting fee generally, see Setting the Fee, 1 Am. Jur. Trials 93.
[FN56] Situations in which contingent fee appropriate, see Setting the Fee, 1 Am. Jur. Trials 93.
[FN57] Determining contingent fee percentage, see Setting the Fee, 1 Am. Jur. Trials 93 § 16
[FN58] Contingent fee combined with retainer, see Setting the Fee, 1 Am. Jur. Trials 93.
[FN59] Disallowance of attorney fees where litigation improvidently pursued by fiduciary, see 31 Am. Jur. 2d,
Executors and Administrators §§ 534, 538.
[FN60] For discussion of jurisdiction of administration matters, see 31 Am. Jur. 2d, Executors and Administrators
§§ 22 et seq.
[FN61] For discussion of requirement of presentation of claims, see § 16.
[FN62] For discussion of nonclaim statutes and general statutes of limitation, see §§ 16, 26, 27.
[FN63] See § 5.
[FN64] Creditor's right to apply for administration of decedent debtor's estate, see 31 Am. Jur. 2d, Executors and
Administrators §§ 56, 57.
[FN65] Operation and effect of nonclaim statutes, see 31 Am. Jur. 2d, Executors and Administrators §§ 270 et seq.
[FN66] Disallowance of claim not presented within statutory period, see 31 Am. Jur. 2d, Executors and
[FN67] Additional period provided by nonclaim statute for suing on rejected claim, see 31 Am. Jur. 2d, Executors
and Administrators § 740.
[FN68] Judicial conflict as to whether instituting suit constitutes presentation of claim under nonclaim statute, see 31
Am. Jur. 2d, Executors and Administrators § 271.
[FN69] Necessity of presenting claim to executor or administrator before bringing suit, 34 A.L.R. 362.
[FN70] Power of probate court to hear and determine claims summarily, see 31 Am. Jur. 2d, Executors and
[FN71] Or RS 115.145(a), 115.165, 115.175.
[FN72] Mich Comp L § 708.3 [ MSA 27.3178(413)].
[FN73] Statutes authorizing fiduciary to submit claim to arbitration, see 31 Am. Jur. 2d, Executors and

[FN74] Persons entitled to contest claim in probate court, see 31 Am. Jur. 2d, Executors and Administrators § 305.
[FN75] Status of fiduciary as officer of probate court, and liability to removal by court, see 31 Am. Jur. 2d,
Executors and Administrators §§ 2, 109 et seq.
[FN76] For discussion of nonclaim statutes, see § 16.
[FN77] Tolling of statute of limitations by death of prospective defendant, see 31 Am. Jur. 2d, Limitation of Actions
§§ 194–196.
[FN78] Statutory provisions suspending limitation period after death of prospective defendant, see 51 Am. Jur. 2d,
Limitation of Actions §§ 194–196.
[FN79] Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations,
112 A.L.R. 289.
[FN80] Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations,
112 A.L.R. 289.
[FN81] Temporary immunity of fiduciary from action on claim, see 31 Am. Jur. 2d, Executors and Administrators §
741.
[FN82] Effect of temporary immunity provision to toll statute of limitations, see 31 Am. Jur. 2d, Executors and
[FN83] Effect of statute forbidding suit against representative of estate until expiration of prescribed period on
statutes of nonclaim and limitations, 104 A.L.R. 892.
[FN84] Claimant's option to consider fiduciary's nonaction on claim as rejection, see 31 Am. Jur. 2d, Executors and
[FN85] Tort claim as within nonclaim statutes, 22 A.L.R. 3d 493.
Delay of claimant, after filing claim against decedent's estate, to press its establishment or enforcement, 100 A.L.R.
241.
[FN86] Statutes of limitation as extinguishing right or remedy, see 51 Am. Jur. 2d, Limitation of Actions § 22.
[FN87] Tolling of statute of limitations as affected by whether statute operates on right or remedy, see 51 Am. Jur.
2d, Limitation of Actions §§ 151, 156.
[FN88] Waiver of statute of limitations by fiduciary, see 31 Am. Jur. 2d, Executors and Administrators §§ 479–485.
[FN89] See § 9.
[FN90] Locating witnesses, generally, see Locating and Interviewing Witnesses, 2 Am. Jur. Trials 229.
[FN91] See § 5.
[FN92] Triviality of services rendered as negativing implied contract to pay for them, see Am. Jur., Work and Labor
§§ 4, 5.
[FN93] See § 11.
[FN94] Interviewing witnesses, generally, see Locating and Interviewing Witnesses, 2 Am. Jur. Trials 229.
[FN95] See, for example, Life Magazine, Jan. 7, 1966, p 70.
[FN96] Accountability for good will on dissolution of partnership, 65 A.L.R. 2d 521.
[FN97] Competency of person who performed services to testify as to their value, see 31 Am. Jur. 2d, Expert and
Opinion Evidence § 145.
[FN98] Determination of value of services by jury notwithstanding absence of evidence on issue, see Am. Jur.,
Work and Labor § 63.
[FN99] Admissibility of opinion testimony on question of value of personal services, see 31 Am. Jur. 2d, Expert and
[FN1] Proof of value of professional services by expert engaged in same profession, see 31 Am. Jur. 2d, Expert and
[FN2] Expert testimony as to going concern value of business, see 31 Am. Jur. 2d, Expert and Opinion Evidence §
132.
[FN3] Defendant's burden of pleading payment, see 60 Am. Jur. 2d, Payment § 115; Am. Jur., Pleading § 159.

[FN4] Plaintiff's burden of pleading and proving breach of contract, see Am. Jur., Pleading § 99; 60 Am. Jur. 2d,
Payment § 113.
[FN5] Parties to actions against estate involving realty, see 31 Am. Jur. 2d, Executors and Administrators § 749.
[FN6] Waiver of lienholder's claim for deficiency by failure to present secured claim in decedent's estate, see 31
Am. Jur. 2d, Executors and Administrators §§ 9, 287.
[FN7] Parties to actions against estate involving realty, see 31 Am. Jur. 2d, Executors and Administrators § 749.
[FN8] Fiduciary's election between profits and interest upon continuation of partnership business by surviving
partner, see 59 Am. Jur. 2d, Partnership § 300.
[FN9] Right of deceased partner's representative to demand accounting from surviving partners, see Uniform
Partnership Act § 43.
[FN10] Right of surviving partner to wind up partnership, see Uniform Partnership Act § 37.
[FN11] Immediate vesting of realty in heirs or devisees at common law, see 31 Am. Jur. 2d, Executors and
[FN12] Special probate proceeding for sale of decedent's real property, see 31 Am. Jur. 2d, Executors and
Administrators §§ 344 et seq.
[FN13] Uniform Partnership Act § 37.
[FN14] See § 17.
[FN15] Common-law power of decedent's fiduciary to submit claim to arbitration, see 5 Am. Jur. 2d, Arbitration
and Award § 56; 31 Am. Jur. 2d, Executors and Administrators § 257.
[FN16] Fiduciary's liability for unfavorable results of arbitration, see 5 Am. Jur. 2d, Arbitration and Award § 56.
[FN17] Statutory provisions for arbitration of claims in decedent's estates, see 5 Am. Jur. 2d, Arbitration and Award
§ 56; 31 Am. Jur. 2d, Executors and Administrators § 257.
[FN18] Inapplicability of formal rules of evidence to arbitration proceedings, Am. Jur. 2d, Arbitration § 122.
[FN19] Jurisdiction of actions against personal representative of decedent, see 31 Am. Jur. 2d, Executors and
[FN20] Inapplicability of substituted service statute to personal representative of deceased motorist, see 7 Am. Jur.
2d, Automobiles and Highway Traffic § 860.
[FN21] State statutes or rules of court conferring in personam jurisdiction over nonresidents on the basis of isolated
acts or transactions within state as applicable to personal representative of deceased nonresident, 19 A.L.R. 3d 171.
[FN22] Jurisdictional limitations on actions by personal representative of decedent, see 31 Am. Jur. 2d, Executors
and Administrators §§ 774–777.
[FN23] Discussion of common-law rules relating to venue, see Am. Jur., Venue §§ 3, 8.
[FN24] Venue of action against fiduciary, see 31 Am. Jur. 2d, Executors and Administrators § 737.
[FN25] Venue of transitory actions against individual defendants, see Am. Jur., Venue § 27.
[FN26] Venue of action for partnership dissolution, settlement, or accounting, 33 A.L.R. 2d 914.
[FN27] Provisions of venue statutes relating to actions involving title to realty, see Am. Jur., Venue § 11.
[FN28] Venue of partnership accounting action where partnership assets include realty, see Am. Jur., Venue § 7; 31
Am. Jur. 2d, Executors and Administrators § 737.
[FN29] Venue of partnership accounting action against fiduciary involving primarily disposition of interests in
realty, see Am. Jur., Venue § 7; 31 Am. Jur. 2d, Executors and Administrators § 737.
[FN30] Construction of Federal Rule 25(a)(1) as permitting substitution, as a party, of personal representative of a
nonresident decedent, 79 A.L.R. 2d 532.
Citizenship of executor or administrator as test of diversity of citizenship for purposes of jurisdiction of Federal
court, 77 A.L.R. 910; 136 A.L.R. 938.
Constitutionality of statute allowing suit to be instituted or continued against foreign executors or administrators, 40
A.L.R. 796.
Jurisdiction of federal court, based on diversity of citizenship, of representative's action under foreign death statute,
7 A.L.R. Fed. 110.
Jurisdiction of federal court, based on diversity of citizenship, of representative's action under death statute of
forum, 1 A.L.R. Fed. 395.

[FN31].
Requisite allegations of complaint setting forth claim against decedent's estate, see 31 Am. Jur. 2d, Executors and
[FN32].
Requisite allegations of complaint on behalf of fiduciary, see 31 Am. Jur. 2d, Executors and Administrators § 751.
[FN33].
Requisites of action on open account, see 1 Am. Jur. 2d, Accounts and Accounting § 7.
[FN34].
Equity jurisdiction of suit for partnership accounting, see 59 Am. Jur. 2d, Partnership § 266; 1 Am. Jur. 2d, Accounts and
Accounting § 266.
[FN35].
Uniform Partnership Act § 42.
[FN36] Answer by fiduciary to complaint for recovery of claim in plenary action, see 10 Am. Jur. Pleading and
Practice Forms, Executors and Administrators, Forms 1458–1461.
[FN37] Applicability of statute of limitations to claim for services rendered over a period of time, see Am. Jur.,
Work and Labor § 56.
[FN38] When statute of limitations starts to run on cause of action accruing after promisor's death, see 51 Am. Jur.
2d, Limitation of Actions § 108.
[FN39] Answer to complaint for dissolution of partnership and for an accounting, see 15 Am. Jur. Pleading and
Practice Forms, Partnership, Forms 15:701–15:709.
[FN40] Statutory enactments permitting filing of new action after failure of original suit, see 51 Am. Jur. 2d,
Limitation of Actions §§ 301 et seq.
[FN41] Requirement that party opposing motion for summary judgment file affidavit of merits, see Am. Jur. (Rev),
Pleading § 340.
[FN42] Compromise or settlement by statutory beneficiaries without assent of personal representative of death
action commenced by latter, 29 A.L.R. 2d 1452.
Petition or application by fiduciary for authority to settle claim in favor of, or against, estate, and notice of hearing
thereon. 10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, Forms 521–524, 526, 541–544.
[FN43] Basis of distribution among decedent's unsecured creditors, of ancillary assets, where entire estate or
ancillary is insolvent, 164 A.L.R. 765.
[FN44] UCC § 3-307.
[FN45] This example is intended primarily to illustrate the interrelationship of several factors that may affect the net
recovery of a claimant-legatee if, on the one hand, the claim is litigated and paid in full, and if, on the other hand,
the claim is settled for a substantially smaller sum. While every effort has been made to present accurate, round
figures, based upon the federal income tax law as it existed in 1968, changes in the law enacted since that date, as
well as differences between the inheritance tax law of the state in question and the state in which the reader
practices, may alter or modify some of the conclusions. Moreover, as is no doubt apparent, some of the figures
involved in the example, such as the amount of the costs of administration, may well vary in the situation
confronting the practitioner.
[FN46] Discovery procedures in civil litigation, generally, see Discovery—Oral Depositions, 4 Am. Jur. Trials 119;
Discovery—Written Interrogatories, 4 Am. Jur. Trials 1; Request for Admissions by Plaintiff, 4 Am. Jur. Trials 185;
Request for Admissions by Defendant, 4 Am. Jur. Trials 215.
[FN47] See § 11.
[FN48] See § 9.
[FN49] For discussion of persons disqualified by "dead man" statutes, see §§ 7, 9.
[FN50] See § 23.
[FN51] Discovery of documents in possession of opposite party, generally, see Motions for Production and
Inspection, 4 Am. Jur. Trials 223.
[FN52] Admissibility of expert opinion based in whole or part on reports of others, see 31 Am. Jur. 2d, Expert and
[FN53] See § 5.
[FN54] Evidence admissible to establish value of services, see Am. Jur., Work and Labor §§ 60, 62.

[FN55] Burden of proof in partnership accounting action, see 1 Am. Jur. 2d, Accounts and Accounting § 62.
[FN56] Uniform Partnership Act § 7(4).
[FN57] As illustrating the problems of valuation involved in a partnership accounting action where the business is
carried on after dissolution, see Vanderplow v. Fredricks, 321 Mich 483, 32 NW2d 718, and M. & C. Creditors
Corp. v. Pratt, 172 Misc 695, 17 NYS2d 240, affd without op 255 App Div 838, 7 NYS2d 662, app den 255 App
Div 962, 8 NYS2d 990, affd 281 NY 804, 24 NE2d 482.
[FN58] Matters to include in trial brief, generally, see The Trial Brief, 5 Am. Jur. Trials 89.
[FN59] For discussion of equity jurisdiction over accounting suits, see § 34.
[FN60] For a general discussion of the purposes of, and procedures followed in, the pretrial conference, see Pretrial
Conference, 4 Am. Jur. Trials 659.
[FN61] Voir dire examination of prospective jurors, and exercise of peremptory challenges and challenges for cause,
see 47 Am. Jur. 2d, Jury §§ 195 et seq.
[FN62] Competency of juror as affected by his participation in a case of similar character, but not involving the
party making the objection, 160 A.L.R. 753.
[FN63].
Plaintiff's opening statement, generally, see Opening Statements—Plaintiff's View, 5 Am. Jur. Trials 285.
[FN64] Defendant's opening statement, generally, see Opening Statements—Defense View, 5 Am. Jur. Trials 305.
[FN65] Plaintiff's plan for presenting proofs, see Presenting Plaintiff's Case, 5 Am. Jur. Trials 611; Mapping the
Trial—Order of Proof, 5 Am. Jur. Trials 505.
[FN66] Plaintiff's summation, generally, see Summations for the Plaintiff, 6 Am. Jur. Trials 641.
[FN67] Defendant's summation, generally, see Summations for the Defense, 6 Am. Jur. Trials 731.
Westlaw. © 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
19 AMJUR TRIALS 1
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19 AMJUR TRIALS On Suing A Decedants Estate

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19 AMJUR TRIALS On Suing A Decedants Estate

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19 AMJUR TRIALS 1 Page 1

19 Am. Jur. Trials 1 (Originally published in 1972)

American Jurisprudence Trials

Database updated April 2010

Actions by or Against a Decedent's Estate

I Introduction and Background

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

I. Introduction and Background

See also Will Contests, 96 Am. Jur. Trials 343.

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§ 4. Types of actions involving a decedent's estate

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§ 5. Fact situations giving rise to action

§ 6. Objectives of the parties

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B. Effect on Action of "Dead Man" Statute

§ 8. Actions to which statute applies

§ 9. Testimony barred by statute

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§ 10. Testimony not barred

§ 11. Waiver of statute

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II. Client Interview

§ 12. In general; interview checklist

2. Probate court case number.

3. Date of decedent's death.

4. Decedent's approximate age at death.

5. Date of appointment of fiduciary or of publication of notice to file claims.

7. General extent of decedent's property.

9. Decedent's family situation.

14. Client's correspondence with the decedent relative to matters in issue.

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§ 13. Evaluating the client

§ 14. Fees and charges

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§ 14.5. Attorneys' fees chargeable to estate

III. Presenting Claims Against Estate; Time Limitations For Prosecution

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§ 16. Requirements of nonclaim statute

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§ 17. Utilizing available probate court procedures

§ 18. Inspecting fiduciary's administration of estate

B. Time Limitations for Prosecuting Claim

§ 19. In general; effect of statute of limitations and nonclaim statute

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§ 20. Waiver of statute of limitations by the fiduciary

IV. Locating, Interviewing, and Selecting Witnesses

A. Locating and Interviewing Witnesses, Generally

§ 22. Locating witnesses—for claimant

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§ 23. Locating witnesses—For fiduciary

§ 24. Interviewing witnesses

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B. Expert and Lay Opinion Witnesses

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VI. Selecting the Remedy

§ 28. In general; actions available to claimant

§ 28.5. Challenging qualifications of estate fiduciary

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§ 29. Actions available to fiduciary

§ 30. Arbitration of claims

VII. Selecting the Forum; Venue

1. The plaintiff, [name], is a resident of the [city, town, or other] of ,