Sec. 40. Family reputation or tradition regarding pedigree. – The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in evidence
if the witness testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the like, may be received as
evidence of pedigree.
Requisites for the exception to apply
(a) There is a controversy in respect to the
pedigree of any members of a family;
(b) The reputation or tradition of the pedigree of
the person concerned existed ante litem motam or previous to the controversy; and
(c) The witness testifying to the reputation or
tradition regarding the pedigree of the person concerned must be a member of
the family of said person, either by consanguinity or affinity.
● Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the like, may be received as
evidence of pedigree.
● de Leon: note that in family tradition, the
declarant must be dead or unable to testify. In family reputation or tradition,
there is not even a declarant to speak of; just a witness who was aware of an
exiting family reputation or tradition.
Cases
People v. Alegado, 201 SCRA 37 (1991)
Testimony of a witness and the witness’ grandfather as to the date of birth and
age of the witness is evidence on family tradition which is admissible as an
exception to hearsay.
Ferrer v. de Inchausti, 38 Phil 905 (1918)
Entries in family bibles or other family books or charts, engravings on rings,
family portraits and the like, to be admissible as an evidence of pedigree,
need NOT be proven to have been made at the same time as the occurrence of the
events documented.
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