## Facts

- John Marsden, a Lancashire landowner, executed a will (1822) and codicil (1825) leaving his estate primarily to George Wright, a former servant.
- Sandford Tatham, Marsden’s cousin and heir at law, brought ejectment to recover the land, alleging Marsden lacked testamentary capacity.
- At trial (Lancaster Assizes, 1836), the key factual issue was whether Marsden was of sane mind and capable of making a will over the relevant period.
- Wright sought to introduce letters written to Marsden in the 1780s and 1790s by correspondents who were deceased at the time of trial.
- The letters were found among Marsden’s papers after his death and included communications that treated him as an adult capable of handling business and ordinary affairs.
- Wright offered the letters not for their express factual content, but as circumstantial proof that the writers believed Marsden was competent because they addressed him as such.
- Tatham objected that the letters were unsworn out-of-court statements by unavailable persons offered to prove Marsden’s capacity.
- The trial judge excluded the letters; judgment was entered for Tatham, and Wright pursued review by writ of error.

## Issues

1. Whether letters written to a testator by deceased third parties were admissible to prove the testator’s sanity and testamentary capacity.
2. Whether such letters, offered as circumstantial evidence of the writers’ belief in the testator’s sanity, were inadmissible hearsay as implied assertions.
3. Whether the hearsay rule required exclusion because the writers could not be examined under oath and cross-examined.

## Decision

- The exclusion of the letters was upheld, and judgment for the heir at law was affirmed.
- The reviewing courts treated the letters as inadmissible hearsay when offered to prove Marsden’s sanity and competence.
- The courts reasoned that the probative use of the letters depended on an implied representation by the writers that Marsden was of sound mind, made by persons not subject to cross-examination.

## Legal Principles

- Out-of-court communications may be excluded as hearsay when their relevance depends on an implied assertion offered for its truth.
- A letter offered to show that its author believed a disputed fact may be treated as a statement of that fact when the evidentiary theory requires the fact-finder to accept the author’s implied representation.
- When an issue turns on a third party’s opinion or belief (here, mental capacity), the hearsay rule generally requires the declarant to testify under oath and be subject to cross-examination unless a recognized exception applies.
- The hearsay analysis can extend beyond explicit assertions to communicative acts that function, in the proponent’s use, as proof of the truth of the matter implied.

## Conclusion

The case held that letters from deceased writers addressing a testator in a manner consistent with competence were inadmissible hearsay when offered to prove testamentary capacity, because the evidentiary force relied on an implied, untested assertion of sanity by absent declarants.


Wright v. Doe d. Tatham, 7 Ad. & El. 313 (K.B. 1837)