¶1concurring in part and dissenting in part:
¶2Because I would hold, on remand, the Harans should not be permitted to testify directly that decedent never gave them money in exchange for the promissory note, I respectfully dissent from that part of the majority’s opinion which holds to the contrary. There are other methods available to defendants to prove their case, if such they have, without standing the Dead-Man’s Act (Act) on its head, as the majority’s disposition accomplishes.
¶3Both Hartman and Rerack, discussed in the majority opinion, are entirely distinguishable from the instant facts. The "negative” testimony or "nonevent” in Hartman, that no other persons had an ownership interest in the motel, is not a distinct "happening” or "occurrence” that could have taken place in the "presence” of decedent. In contrast, the disputed fact in this case, whether or not decedent ever gave the Harans the money, is a distinct happening or occurrence which, if true, would have taken place in the presence of decedent. Similarly, in Rerack, the excluded testimony did not relate to an occurrence in the presence of decedent but to the condition of plaintiffs car or whether his foot was on the brake pedal, happenings or occurrences that did not take place in decedent’s presence, who was occupying a different car.
¶4In In re Estate of Osborn (1992), 234 Ill. App. 3d 651, 599 N.E.2d 1329, the court properly applied the Act, as this court should do in the instant case. There, two daughters, in a suit to contest the will of their deceased mother, filed affidavits asserting that decedent never discussed her will or estate during visits by the daughters at the hospital where she had been staying. The circuit court struck these statements as violative of the Act. In affirming, the appellate court stated: "a statement that a particular subject was never discussed violates the statutory prohibition against testifying to any conversation with the deceased.” Osborn, 234 Ill. App. 3d at 659.
¶5It is clear that where an executor sues a defendant to recover on a note, the defendant may not testify as to payments made to the deceased. (See Karlos v. Pappas (1954), 3 Ill. App. 2d 281, 121 N.E.2d 611 (abstract of opinion).) There is no valid reason to depart from this rule in this case, where the Harans claim that decedent never paid them the money. It is evidence decedent could have refuted if she had been alive to testify, and it relates to an event, or the absence of one, that would have taken place in her presence. The outcome the Harans seek, upon which the majority stamps its imprimatur, places the parties on unequal footing, a result precluded by the Act and one rejected by the court in Osborn and Pappas.
¶6Numerous courts in other jurisdictions have similarly held, under comparable "Dead Man’s” statutes, that testimony asserting the deceased did not do a certain act is equivalent, for the purposes of the Act, to testimony that he did that act. See, e.g., In re Estate of Mason v. Mason (1986), 289 S.C. 273, 279-80, 346 S.E.2d 28, 33; Bauer v. Riggs (Tex. Ct. App. 1983), 649 S.W.2d 347, 350; Stebnow v. Goss (Fla. Dist. Ct. App. 1964), 165 So. 2d 251, 255 n.8; Martin v. Shaen (1946), 26 Wash. 2d 346, 351-54, 173 P.2d 968, 971-72.
¶7None of the legal articles cited in the majority opinion discuss whether an interested party may testify to an event that did not occur in the presence of the deceased. Moreover, legal scholars do not unanimously favor the repeal of the Act. (See, e.g., Hunter, The Dead Man’s Act Must Be Retained, 55 Ill. B.J. 512 (1967).) Nevertheless, any action taken to repeal the Act must originate from the legislature, not from this court.
¶8In sum, the law is irrefutable: testimony that one did not do a certain act is equivalent, for purposes of the Act, to testimony that he or she did the act and is prohibited.
¶9Similarly, the majority’s conclusion that the Estate waived the protection of the Act is unsupported by the evidence. This issue is raised and ruled on by the majority in this appeal; it was never raised by the parties in this appeal with good reason. Assuming, arguendo, that the issue of waiver was properly before the court, the majority has applied it erroneously here in order to achieve the result. The exception provides:
"If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201(a) (now 735 ILCS 5/8 — 201(a) (West 1992)). .
¶10At trial in this case, the Estate introduced the Instrument into evidence during the testimony of Robert Smith. He testified that he and his two sisters discovered the Instrument and other valuables in decedent’s wall safe about a month after she died. The Estate offered no other testimony describing, interpreting, translating or relating to the Instrument. As the Estate argued during the trial, it "assiduously avoided” offering further testimony so as not to open the door for rebuttal under section 8 — 201(a). The majority’s ruling here allows the Harans to open the door themselves and to submit impermissible testimony.
¶11The case relied upon by the majority, Hoem v. Zia (1994), 159 Ill. 2d 193, 636 N.E.2d 479, is clearly distinguishable and has no conceivable application to the instant situation. In Hoem, plaintiff’s medical expert read to the jury the defendant doctor’s medical notes, describing the deceased patient’s complaints to the doctor and eventually rendering the opinion that the doctor should have recognized the fatal symptoms. The supreme court found that the expert was doing more than merely "interpreting” or "translating” the doctor’s note for the benefit of the jury. (Hoem, 159 Ill. 2d at 201.) Instead, the expert put his "gloss on the notes,” "insinuating” that the doctor should have treated the patient’s complaints differently. (Hoem, 159 Ill. 2d at 201.) Because plaintiff was allowed to introduce her version of why the deceased visited the doctor, the supreme court understandably concluded that the doctor should have been permitted to explain his view of what happened. (Hoem, 159 Ill. 2d at 202.) Nothing even remotely resembling the events in Hoem took place in the case at bar.
¶12Here, the Estate offered no testimony or any other evidence to interpret or translate the contents of the Instrument, much less put its "gloss” upon it or "insinuate” anything beyond the bare instrument. Rather, the Estate simply laid the proper foundation and introduced the Instrument into evidence. The Harans were in no way disadvantaged, as the doctor would have been in Hoem, because neither side should be permitted to interpret the Instrument or present evidence regarding actions or nonactions relating to it.
¶13The Act does not entirely preclude the Harans from defending or rebutting the presumption of consideration in the retrial of the case. They may, if they can, produce such evidence as income tax or bank records detailing their business ventures that they have entered into; a list of investors with whom they have joined, showing amounts contributed, which may demonstrate the omission of decedent, and convince the trier of fact that no deal was ever consummated between the parties; and bank deposits or withdrawals from both parties, which may shed some light on whether any funds were exchanged for the Instrument. Disinterested third parties, such as lawyers or accountants, involved in the proposed venture may similarly testify that the condominium project never commenced. The creative work of lawyers in the case can find additional evidence, which is not barred by the Act, to rebut the presumption of consideration. To sanction the Harans’ direct testimony that no money was ever exchanged, however, clearly and impermissibly defeats the purposes of the Act and judicially repeals its provisions.