Unseld v. Bedenbaugh , 105 Mich. App. 395 ( 1981 )

Per Curiam.

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 appeals to this Court by leave granted.

Plaintiff first contends 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 The first proposed exhibit, a memorial card, was voluntarily withdrawn by plaintiff’s counsel and, therefore, the question of its admissibility is not properly before this Court.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 alleges is herself. On the back is the alleged handwriting of the deceased stating: "Ren Robinson, My Sister, Daughter, Age About 3, /s/ Ernest Egbert”.

When plaintiff sought to admit the exhibit, defendants objected that it was not admissible because it was hearsay. After plaintiff’s counsel could not cite an exception to the hearsay rule, the trial judge ruled that the exhibit was inadmissible.

This photograph is admissible under MRE 804(b)(4) which provides:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.”

Defendants maintain that the photograph is inadmissible, citing Lamoreaux v Attorney General,¹ where the Michigan Supreme Court held that the alleged relationship must be shown by other evidence in addition to the statement of the alleged relative. Lamoreaux is no longer valid authority in light of the statement in MRE 101 that "[t]hese rules govern proceedings in the courts of this state to the extent and with the exceptions stated in Rule 1101”, which are not pertinent here.

Moreover, Lamoreaux is distinguishable, as the court there was not concerned with hearsay statements of a deceased person as to his family ties but, rather, as to the citizenship of a relative.

The photograph could also be admissible under MRE 803(16) as an ancient document in existence 20 years or more, or under MRE 803(13), which provides that the following are not excluded by the hearsay rule:

"(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.” (Emphasis added.)

Having determined that the photograph was admissible, the question remains whether error may be predicated on the probate court’s sustaining of defendants’ objection to admissibility where plaintiffs counsel failed to argue appropriate grounds for admissibility. MRE 102 provides:

"These rules are intended to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

More to the point, MRE 103(d) states:

"(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”

Although, generally, error requiring reversal will not be found where admissible evidence was excluded but the proper grounds for admissibility were not presented to the trial court,² where, as here, the excluded evidence, if given any weight at all, would be crucial and, perhaps, determinative of the lawsuit, the better rule is that the trial court is bound to follow the law, whether or not it has been cited to the court.

Therefore, we set aside the probate court’s determination of heirs and remand for a hearing on the merits with full opportunity to offer all evidence relevant to a determination of heirs.³

Plaintiffs second claim is that the probate judge in this case is clearly prejudiced against plaintiff and her counsel and, therefore, should be disqualified from hearing the matter in the event the case is remanded. This claim is not supported by the record.

Reversed and remanded._

1 89 Mich 146; 50 NW 812 (1891).

2 Murphy v Manistee R Co, 194 Mich 595; 161 NW 876 (1917).

3 The record leaves a nagging question of whether more evidence regarding this issue is available.