## Facts

- Arthur G. Murdock and his second wife, Sarah Hayes Murdock, each had children from prior marriages and executed reciprocal wills leaving their estates to the other spouse if the other survived, with remainder to their respective children.
- Arthur and Sarah died after their private airplane crashed.
- Distribution of the estates depended on the order of deaths: whether Arthur survived Sarah or Sarah survived Arthur.
- Expert medical testimony was offered on both sides regarding how long each spouse lived after the crash.
- Deputy Sheriff Alfred Linden arrived about ten minutes after the crash and found Sarah dead.
- Linden sought to testify that he heard Arthur whisper, “I’m still alive.”
- Sarah’s children objected to Linden’s testimony as hearsay, and the trial court excluded it.

## Issues

1. Whether Arthur’s out-of-court statement, “I’m still alive,” offered to prove survivorship, was inadmissible hearsay or admissible under a hearsay exception.
2. Whether the statement was sufficiently relevant and probative on the survivorship question to be admitted despite competing medical evidence.

## Decision

- The appellate court reversed the exclusion of Linden’s testimony.
- The court held that Arthur’s statement was admissible under a hearsay exception applicable to an unavailable declarant speaking under circumstances of impending death, and/or under closely related spontaneity-based exceptions.
- The matter was remanded for further proceedings with the statement admitted as evidence bearing on the order of deaths.

## Legal Principles

- An out-of-court statement offered to prove the truth of what it asserts is hearsay unless an exception applies.
- A deceased declarant is unavailable; statements made while the declarant believes death is imminent, and relating to the cause or circumstances of death, may be admissible despite hearsay limits.
- Statements made contemporaneously with a perceived condition or event, or under the stress of a startling occurrence, may be admissible as present-sense impressions or excited utterances when the circumstances support reliability.
- Evidence directly bearing on survivorship is relevant in probate disputes where reciprocal wills make the sequence of deaths outcome-determinative.

## Conclusion

The appellate court concluded that the trial court erred by treating Arthur’s post-crash statement as inadmissible hearsay; because it fit a recognized hearsay exception and materially aided the survivorship determination, Linden’s testimony was to be admitted on remand.


Estate of Murdock, 32 M.U.C. 352 (1983)