Wright v. Tatham
112 Eng.Rep. 488 (1837)
- Marsden died and Tatham was contesting the will.
- Tatham argued that Marsden was mentally incompetent.
- At Trial, Wright, who wanted the will to stand, offered as evidence some letters people wrote to Marsden.
- The text of the letters implied that the writers believed that Marsden was competent.
- The writers of the letters never testified.
- The English Court found the letters to be hearsay and were therefore not admissible.
- The English Court found that there is no way of knowing from the record whether or not the writers had personal knowledge of Marsden’s competency.
- The letters were implied assertions.
- This case would have been decided differently under the FRE. Under the FRE, and implied assertion is not considered hearsay.
- An implied assertion in one where the declarant is not intended to state a fact to another person.
- The letters were written for Marsden’s enjoyment, not because the writers wanted to assert that Marsden was competent.
- If the letters had said, “Marsden is competent” then that assertion (aka a positive declaration) would be hearsay.