Sec. 23. Disqualification by reason of death or
insanity of adverse party. – Parties or assignors of parties to a
case, or persons in whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or against a person
of unsound mind, upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot testify as to any matter
of fact occurring before the death of such deceased person or before such
person became of unsound mind.
Requisites for dead man’s
statute
1. The
witness sought to be disqualified is the plaintiff
2.
Executor, administrator or representative of a deceased person, or the person
of unsound mind is the defendant
3.
The case is upon a claim or demand against the estate of such deceased person
or against such person of unsound mind
4.
The testimony to be given is on a matter of fact occurring before the death of
such deceased person or before such person became of unsound mind.
How
waived
1. By not
objecting to plaintiff’s testimony on prohibited matters
2. By not
cross-examining the plaintiff on prohibited matters
3. By calling
witnesses to testify on prohibited matters
4. When the plaintiff’s deposition is taken by the
representative of the estate or when counsel for the representative
cross-examined the plaintiff as to matters occurring ___ the deceased’s lifetime.
Cases
Razon v. IAC, 207 SCRA 234
(1992) The dead man’s statute does not apply where the case is filed by the
estate. Besides, cross-examination of the witness is a waiver of the privilege.
Reyes v. Wells, 54 Phil 102
(1929) If the witness sought to be disqualified is not the plaintiff (e.g.
disinterested 3rd party), the dead man’s statute is not applicable.
Guerrero v. St.
Clare’s Realty,
124 SCRA 553 (1983) Mere witnesses not parties to the case are not disqualified
by the dead man’s statute. Furthermore, the rule requires that the defendant
must be the estate. It does not apply where the heirs are being sued in their
individual capacities. “Representatives” are only those who, like the executor,
one sued in their representative, not personal, capacity
Abraham v.
Recto-Kasten,
4 SCRA 298 (1962) A cross-examination of the disqualified witness is a waiver
of the dead man’s privilege, even if there was a continuing objection.
Lichauco v.
Atlantic Gulf,
84 Phil. 330 (1949) This in effect
ruled that the Dead Man’s statute cannot be invoked against a
plaintiff-corporation. Interest no longer disqualifies a witness.
Officers/stockholder of corporation may testify in a case filed against the
estate of a deceased by the corporation
Escolin:
In an action where the administrator is the plaintiff, the defendant may
testify on facts occurring prior to the death of the decedent.
Tongco v. Vianzon, 50 Phil 698
(1927) – action must be brought against the estate, not by the estate, to be
covered under the dead man’s statute
Escolin:
The dead man’s rule does not apply in cadastral cases.
Escolin:
If there is no instrument evidencing the claim, it would be difficult to prove
the claim in the estate proceeding because of the dead man’s statute. However,
if there is such an instrument, it is not barred by the dead man’s statute (Neibert v. Neibert)
Goñi v. CA, 144 SCRA 222 (1986) – heirs of a deceased
are “representatives” within the ambit of the dead man’s statute; waived by
defendant if he files counterclaim against plaintiff; adverse party may testify
to transactions or communications with deceased which were made with an agent
of such person if the agents is still alive and can testify as long as it is
confined to the transactions
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