                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 5, 2010 Session

     MARY JANE BRIDGEWATER v. ROBERT S. ADAMCZYK ET AL.

                   Appeal from the Chancery Court for Smith County
                         No. 6776    C. K. Smith, Chancellor


                  No. M2009-01582-COA-R3-CV - Filed April 20, 2010


                    OPINION DENYING PETITION TO REHEAR

F RANK G. C LEMENT, J R., J., delivered the opinion of the court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and A NDY D. B ENNETT, J., joined.

        The appellee, Mary Jane Bridgewater, has filed a Petition to Rehear pursuant to Tenn.
R. App. P. 39. In her petition to rehear, she asserts the court incorrectly stated a material fact
and misapprehended a material fact or proposition of law. The issue raised in the petition
pertains to Ms. Bridgewater’s Affidavit of Heirship, filed in support of her motion for
summary judgment, and whether all of the material facts stated therein are admissible. In our
opinion we held that some of the material facts were not admissible and for that reason we
reversed the trial court’s grant of summary judgment in her favor and remanded the matter
for further proceedings. In this opinion on her petition to rehear, we reaffirm and supplement
our prior opinion in this matter as follows.

        Ms. Bridgewater insists that all of the facts stated in her affidavit are either based
upon her personal knowledge, and thus are admissible, or they are admissible under Tenn.
R. Evid. 803(19) as exceptions to the hearsay rule because the facts pertain to her family
history. We have determined, however, that some of the material facts stated in her affidavit
occurred long before her birth, therefore, she could not have personal knowledge of those
facts, and some of the material facts do not come within the purview of Rule 803(19), thus,
they are not admissible as an exception to the hearsay rule.

       As Ms. Bridgewater correctly asserts, Rule 803 provides the following “family
history” exception to the hearsay rule:
        Reputation Concerning Personal or Family History. — Reputation among
        members of a person’s family by blood, adoption, or marriage or among
        associates or in the community concerning a person’s birth, adoption,
        marriage, divorce, death, legitimacy, relationship by blood, adoption, or
        marriage, ancestry, or other similar fact of personal or family history.

Tenn. R. Evid. 803(19). Accordingly, testimony regarding one’s family history, one’s
pedigree, is not excluded by the hearsay rule.1

       The exception to the hearsay rule in Rule 803(19), however, has limitations, and it
only operates under certain situations as this court held in Brummitt v. Kemp, 1984 Tenn.
App. LEXIS 3304 (Tenn. Ct. App. Nov. 21, 1984).

        In Tennessee the pedigree exception operates in four situations: Where the
        declarant made a statement about his own pedigree, where the relatives of a
        person make a statement about his pedigree, where the fact is sought to be
        proved by reputation within the family circle, and where the fact is to be
        established by community reputation. Paine, Tennessee Law of Evidence § 91
        (1974).

        There are limitations in Tennessee on each type of pedigree testimony. Thus,
        for a statement by a declarant about his own pedigree to be admissible, the
        declarant must be unavailable as a witness at the time of the trial. If the
        declarant is a family member, he must not only be unavailable, but must be
        related by blood or marriage to the one whose pedigree is in question. If the
        declarant seeks to testify to family reputation that reputation must have been
        formed before a motive to misrepresent arose. Paine, Tennessee Law of
        Evidence § 91 (1974). And if the testimony is of community reputation, it is


       1
         The Advisory Commission Comment to Rule 803(19) states: “The rule admits reputation to prove
pedigree, and that is the common law and Tennessee position. To introduce an individual’s declaration to
prove pedigree, see Rule 804(b)(4).” Rule 804(b) provides:

        A statement made before the controversy arose (A) concerning declarant’s own birth,
        adoption, marriage, divorce, or legitimacy; relationship by blood, adoption, or marriage;
        ancestry; or other similar fact of personal or family history; even though the declarant had
        no means of acquiring personal knowledge of the matter asserted; or (B) 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.

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       entitled to less weight than statements of or reputation among family members.
       Carter v. Montgomery, 2 Tenn. Ch. Rpts. 216 (1875).

Brummitt, 1984 Tenn. App. LEXIS 3304, at *4.

        The opinion goes on to note that “[f]acts that can be established by direct evidence
such as place of birth, death, or residence cannot be proved by hearsay.” Id. at *4-5 (citing
Carter v. Montgomery, 2 Tenn. Ch. Rpts. 216 (1975)). “Under this exclusion courts have also
held that the existence of specific physical characteristics such as the color of skin or eyes,
or the presence of an injury or identifying marks cannot be proved by hearsay.” Id. at *5
(citing Gardner v. Burke, 187 S.W.2d 25 (Tenn. Ct. App. 1944); Carter v. Montgomery, 2
Tenn. Ch. Rpts. 216 (1875); Plunkett v. Simmons, 63 S.W. 2d 313 (Tex. Civ. App. 1933)).

       Ms. Bridgewater testified in her affidavit, inter alia, that Ed Miller was her great-
grandfather and that he died intestate in 1907. Whether he died intestate in 1907 is not
germane to her pedigree, and it appears that this fact can be established by direct evidence.
Accordingly, this statement is not admissible under the Rule 803(19) exception to the hearsay
rule. Moreover, as she admits, he died long before her birth; thus, she does not have personal
knowledge of that fact, her testimony to the contrary notwithstanding.

        As we stated in our opinion in this matter, affidavits of heirship are governed by
Tennessee Code Annotated § 30-2-712 and are “[a]ffidavits duly sworn to upon the personal
knowledge of the affiant . . . setting forth any fact or facts concerning the relationship of any
parties to persons deceased, or containing a statement of any facts pertinent to be ascertained
in determining the persons legally entitled to any part of the decedent.” Tenn. Code Ann. §
30-2-712(a) (emphasis added). Tennessee Rule of Civil Procedure 56.06 requires that
affidavits filed in support of motions for summary judgment “shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” Tenn. R.
Civ. P. 56.06 (emphasis added). “Personal knowledge” is defined as “knowledge gained
through firsthand observation or experience, as distinguished from belief based on what
someone else has said.” Black’s Law Dictionary 703 (7th ed. 2000).

        While we have no doubt Ms. Bridgewater verily believes her great-grandfather died
intestate in 1907, and she may be able to prove this fact by other means, including direct
evidence, her statement that Ed Miller died intestate is hearsay and it does not come within
the hearsay exception in Rule 803(19). It is, therefore, not admissible, at least not based upon
the brevity of facts stated in her Affidavit of Heirship in this record.




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        We have not held that Ms. Bridgewater cannot prove each and every fact stated in her
Affidavit of Heirship, nor do we hold that all of the facts stated in her affidavit regarding her
family history are excluded by the hearsay rule. To the contrary, much of what is stated in her
Affidavit of Heirship would be admissible, as Ms. Bridgewater correctly argues;
nevertheless, the verity of the facts in her Affidavit of Heirship has been challenged by the
Adamczyks pursuant to Tennessee Code Annotated § 30-2-712(e)(1). The statute provides
that a person feeling aggrieved by the recording of an affidavit of heirship may challenge the
verity of any or all of the facts stated in the affidavit.2 Further, it provides that in any
proceeding challenging the truthfulness of any fact stated in an affidavit of heirship, “the
burden of proof to show the truthfulness of the statement shall rest upon the [affiant], . . .”
Tenn. Code Ann. § 30-2-712(e)(1). Thus, the burden is upon Ms. Bridgewater to prove the
truthfulness of any fact stated in her Affidavit of Heirship.

      Accordingly, the Petition for Rehearing is respectfully denied and we reaffirm and
supplement our prior opinion as stated herein.

        Costs pertaining to this petition are assessed against Mary Jane Bridgewater.




                                                                 ______________________________
                                                                 FRANK G. CLEMENT, JR., JUDGE




        2
          “Any person feeling aggrieved by the recording of any such affidavit, may, at any time within six
(6) years of the recording of the affidavit, bring a suit in the chancery court of the county where the affidavit
may be recorded, challenging the verity of any or all of the facts that may be stated in the affidavit, . . .”
Tenn. Code Ann. § 30-2-712(e)(1).


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