Sec.

39: Statement of decedent or person of unsound mind - No case found

Sec. 40: Declaration against interest. – the declaration made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors in interest and against third
persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness.

FUENTES v. CA AND PEOPLE

G.R. No. 111692, February 9, 1996
Digest by: Janica G. Puno

Facts:
At 4:00AM of June 24, 1989, Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling,
was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Alejandro Fuentes, Jr. called Malaspina and
placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short
hair." Suddenly Alejandro stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and
his companions rushed to his side. Alejandro fled. Before the victim died, he muttered that Alejandro stabbed him.

Fuentes claims that it was his cousin Zoilo Fuentes, Jr. who knifed Malaspina; that "Jonie" admitted spontaneously that
he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as
there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was
arrested at 8:00AM of 24 June 1989 while he was in a store in the barangay.

Petitioner would make much of the alleged confession of Zoilo. The so-called confession of Zoilo was allegedly given
to Felicisimo Fuentes, the uncle of Alejandro and Zoilo, who relayed the matter to P/Sgt. Benjamin Conde, Jr.
Felicisimo testified that on that day while he was at Brgy. San Isidro, Zoilo confessed that he killed Malaspina in
"retaliation;" that he even showed him the knife he used and asked his help in finding a lawyer, in securing bail and, if
possible, in working out a settlement with the relatives of the deceased. The following day, however, he learned that
Zoilo was gone and that Alejandro had been arrested for a crime he did not commit.

The RTC found Alejandro guilty of murder qualified by treachery. The CA affirmed the decision of the RTC.

Issue:
Whether or not the declaration particularly against penal interest attributed to Zoilo is admissible in evidence as an
exception to the hearsay rule

Held:
No. One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec.
38 of Rule 130 of the Rules of Court provides that "the declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary
to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors in interest and against third
persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness.

There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not
be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances
must render it improbable that a motive to falsify existed.

The far weightier reason why the admission against penal interest cannot be accepted is that the declarant is not
"unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent
which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso
facto unavailable under this rule. Other than the gratuitous statements of Alejandro and his uncle that Zoilo admitted
having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a
witness.

Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of
guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated
thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify

Sec. 41: Act or declarations about pedigree. — The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than such
act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree.

CASIMIRO MENDOZA v CA
G.R. No. 86302, September 24, 1991
Digest by: Konrad Stephen P. Ibabao

Facts:
Respondent Teopista Toring claimed that she was the illegitimate daughter of Casimiro Mendoza. However, petitioner
denied that she was even on his dying day. The trial court believed him and dismissed her complaint for compulsory
recognition.

Teopista testified that it was her mother who told her that her father was Casimiro. She called him Papa Miroy. She
lived with her mother because Casimiro was married but she used to visit him at his house. When she married
Valentin Tufiacao, Casimiro bought a passenger truck and engaged him to drive it so he could have a livelihood.

Casimiro later sold the truck but gave the proceeds of the sale to her and her husband. In 1977, Casimiro allowed her
son, Lolito Tufiacao, to build a house on his lot and later he gave her money to buy her own lot from her brother,
Vicente Toring. On February 14, 1977, Casimiro opened a joint savings account with her as a co-depositor at the
Mandaue City branch of the Philippine Commercial and Industrial Bank. Two years later, Margarita Bate, Casimiro's
adopted daughter, took the passbook from her, but Casimiro ordered it returned to her after admonishing Margarita.

Issue:
Whether Teopista Toring was the illegitimate child of Casimiro.

Held:
Yes. To establish "the open and continuous possession of the status of an illegitimate child," it is necessary to comply
with certain jurisprudential requirements. The possession of such status means that the father has treated the child as
his own, directly and not through others, spontaneously and without concealment though without publicity (since the
relation is illegitimate). There must be a showing of the permanent intention of the supposed father to consider the
child as his own, by continuous and clear manifestation of paternal affection and care.
According to the Family Code. Illegitimate status may be established by his baptismal certificate, a judicial admission,
a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence,
the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court.

Sec. 39. — Act or declarations about pedigree. — The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than such
act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree. The following requisites that have to be complied with before the act or
declaration regarding pedigree may be admitted in evidence:
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose pedigree is in question must be shown by evidence
other than such declaration.

In this case, all the above requisites are present in the case at bar. The declarations were made before the complaint
was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the
declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial
partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs.

Sec. 42: 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.

JISON v. CA
GR No. 124853, February 24, 1998
Digest by: Merzy Balijani

Facts:
Private respondent, Monina Jison, instituted a complaint against petitioner, Francisco Jison, for recognition as
illegitimate child of the latter. The case was filed 20 years after her mother’s death and when she was already 39 years
of age.

Petitioner was married to Lilia Lopez Jison since 1940 and sometime in 1945, he impregnated Esperanza Amolar,
Monina’s mother. Monina alleged that since childhood, she had enjoyed the continuous, implied recognition as the
illegitimate child of petitioner by his acts and that of his family. It was likewise alleged that petitioner supported her
and spent for her education such that she became a CPA and eventually a Central Bank Examiner. Monina was able to
present total of 11 witnesses.

Issue:
WON Monina should be declared as illegitimate child of Francisco Jison.
WON documentary evidence presented by the private respondent as evidence of filiation considering that the same
are hearsay, self-serving and cannot bind the petitioner under the basic rules of evidence.

Held:
Yes. Under Article 175 of the Family Code, illegitimate filiation may be established in the same way and on the same
evidence as that of legitimate children. Article 172 thereof provides the various forms of evidence by which legitimate
filiation is established.

“To prove open and continuous possession of the status of an illegitimate child, there must be evidence of the
manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear
manifestations of parental affection and care, which cannot be attributed to pure charity. Such acts must be of such a
nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as
such in all relations in society and in life, not accidentally, but continuously”.

The following facts was established based on the testimonial evidences offered by Monina:
1. That Francisco was her father and she was conceived at the time when her mother was employed by the former;
2. That Francisco recognized Monina as his child through his overt acts and conduct.
SC ruled that a certificate of live birth purportedly identifying the putative father is not competence evidence as to the
issue of paternity. Francisco’s lack of participation in the preparation of baptismal certificates and school records
render the documents showed as incompetent to prove paternity. With regard to the affidavit signed by Monina
when she was 25 years of age attesting that Francisco was not her father, SC was in the position that if Monina were
truly not Francisco’s illegitimate child, it would be unnecessary for him to have gone to such great lengths in order
that Monina denounce her filiation. Monina’s evidence hurdles the “high standard of proof required for the success
of an action to establish one’s illegitimate filiation in relying upon the provision on “open and continuous possession”.
Hence, Monina proved her filiation by more than mere preponderance of evidence.

Since the instant case involves paternity and filiation, even if illegitimate, Monina filed her action well within the
period granted her by a positive provision of law. A denial then of her action on ground of laches would clearly be
inequitable and unjust. Petition was denied.

As to Exhibits "S," "T," "U" and "V," the various notes and letters written by FRANCISCO's relatives, namely Mike Alano,
Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while their
due execution and authenticity are not in issue,40 as MONINA witnessed the authors signing the documents,
nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no
showing that the declarants-authors were dead or unable to testify, neither was the relationship between the
declarants and MONINA shown by evidence other than the documents in question.41 As to the admissibility of these
documents under Rule 130, Section 40, however, this requires further elaboration.
Rule 130, Section 40, provides:
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.
(emphasis supplied)
It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause
which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors
thereof did not take the witness stand; and the section containing the second underscored phrase. What must then
be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as
qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts, engravings on rights [and]
family portraits,"
We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of
ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which
represent, in effect, a family's joint statement of its belief as to the pedigree of a person.42 These have been described
as objects "openly exhibited and well known to the family,"43 or those "which, if preserved in a family, may be
regarded as giving a family tradition."44 Other examples of these objects which are regarded as reflective of a family's
reputation or tradition regarding pedigree are inscriptions on tombstones,45 monuments or coffin plates.46
Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as discussed above, may not
be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130,
Section 41 regarding common reputation,47 it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in
the family, and not the common reputation in community, that is a material element of evidence going to establish
pedigree. . . . [Thus] matters of pedigree may be proved by reputation in the family, and not by reputation in the
neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common
reputation in the community.48
Their inadmissibility notwithstanding, Exhibits "S" to "V," inclusive, may, in like manner as MONINA's school records,
properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO
recognized her as his daughter.