Freeze Frame: Court of Appeals of Michigan Applies Rule 803(13) to Postcard

Continuing my discussion of lesser known hearsay exceptions, today let's look at Federal Rule of Evidence 803(13), which provides an exception to the rule against hearsay for

A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

I have only seen this Rule and its state counterparts applied in a handful of cases, including Matter of Egbert's Estate, 306 N.W.2d 525 (Mich.App. 1981).

In Egbert's Estate, 

Charles Ernest Egbert died intestate on June 26, 1978, at the age of 91. On October 5, 1978, following uncontested testimony two days earlier, Beatrice Bedenbaugh and Ernest D. Egbert were determined to be first cousins of the decedent and his sole heirs-at-law. On October 20, 1978, Renee Alice Unseld, hereinafter plaintiff, filed a petition claiming to be the niece and sole heir-at-law of the deceased and asking that all prior proceedings in the estate be quashed and held for nought on the grounds that they were instituted and carried forward by persons with no pecuniary interest in the estate. After a hearing on the petition held on November 20, 1978, the probate court held that plaintiff had failed to convince the court by a preponderance of the evidence that she was, in fact, decedent's niece. Following an unsuccessful appeal to the circuit court, plaintiff appeal[ed]....

Specifically, the plaintiff claimed

that the probate court erred in denying her request to admit into evidence two proposed exhibits to prove her relationship to decedent. The first proposed exhibit, a memorial card, was voluntarily withdrawn by plaintiff's counsel and, therefore, the question of its admissibility [wa]s not properly before this Court.  

The second proposed exhibit was a picture postcard. On the front of the postcard is a photograph of a young girl, who plaintiff allege[d] [wa]s herself. On the back is the alleged handwriting of the deceased stating: "Ren Robinson, My Sister, Daughter, Age About 3, /s/Ernest Egbert".

The Court of Appeals of Michigan agreed with the plaintiff, finding that the postcard was admissible under Rule 804(b)(4) which I discussed a few days ago, Rule 803(16) (the ancient documents exception), and Rule 803(13),.

-CM