Section 16.7 Declaration of a Person in Privity With a Party

• Library: Evidence 2017

B. (§16.7) Declaration of a Person in Privity With a Party

An admission does not always need to come from the party or the party’s agent. An out-of-court statement that meets the criteria for an admission falls within that hearsay exception if it is made by a person in privity with a party. Persons are in privity if they share a legal interest or if their interest derives from the person making the statement. See McMullin v. Borgers, 806 S.W.2d 724, 731–32 (Mo. App. E.D. 1991). In general, the concept of admissions based on privity extends to interest in real estate. See Stoff v. Schuetze, 240 S.W. 139, 144 (Mo. 1922).

In McMullin, for example, the plaintiff was the declarant’s assignee. The court held that a statement against the declarant-assignor’s interest was an admission of the assignee because the assignee succeeded to the assignor’s rights. See McMullin, 806 S.W.2d at 732. But the statement has to be made before the assignor transfers the assignor’s entire interest to the assignee. See St. Joseph Lead Co. v. Fuhrmeister, 182 S.W.2d 273, 280–81 (Mo. 1944) (grantor’s statements are not admissions of the grantee if they were made after the property was transferred); Enders v. Richards, 33 Mo. 598 (1863) (same).

There are some particular types of actions in which a party is not bound by admissions of a party in privity with them. For example, co-legatees to a will contest are generally considered in privity because they have a common interest in upholding the validity of a will. But the admission of one legatee is not admissible in a will contest because the will is either valid or it is not. A separate judgment cannot be entered ruling the will valid as to some legatees and invalid as to others. See Schierbaum v. Schemme, 57 S.W. 526 (Mo. 1900).

The rule is subject to exceptions when there are extraordinary circumstances. In Look v. French, 144 S.W.2d 128 (Mo. 1940), there were two legatees who were proponents of the will, but the first received only $1 under the will and the other—the decedent’s widow—received the remainder of the estate. The first legatee would have received much more if the decedent had died intestate. In this unusual circumstance, the Court relented from the general rule and held that the admission of the widow that she was going to have her husband cut the plaintiff out of his will should have been received in evidence as an admission because, as a practical matter, only the declarant’s interest would be adversely affected by a...