Mothes' Estate

Superior Court of Pennsylvania November 21, 1905

Mothes' Estate, 29 Pa. Super. 462 (1905)

1905 Pa. Super. LEXIS 357

Beaver, Henderson, Morrison, Orlad, Porter, Rice

Opinion of the Court

Opinion by

Beaver, J.,

The effort here Avas to surcharge the administratrix, the widow of the decedent, Avith the proceeds of certain stocks alleged by her to have been a gift from her husband in his lifetime. Under the testimony of a disinterested witness, who was present when the gift was made, there Avas an actual delivery, accompanied by words which indicated a gift. The adjudicating judge, who heard the testimony, who saw the witness upon the stand and who had the opportunity for judging whether or not her testimony was inspired, found as a fact that a gift of the stock in question had been actually made. We have a careful opinion on this question from President Judge Hanna of the orphans’ court, covering the entire subject. Subsequently, upon exceptions to the finding of the auditing judge, Judge Dallett delivered the opinion of the court dismissing the exceptions. In a clear opinion, quoting *465controlling authorities, he satisfactorily disposes of both questions raised by the assignments of error.

The assignments of error here are not in accordance with our rules XV. and XVI. The appellee, however, does not object to them and we do not, therefore, dispose of the case on the ground of their insufficiency. If the testimony of the witnesses was believed, there were ample grounds upon which to find, as a matter of fact, that there was a gift, inter vivos, from the husband to his wife : 8 P. & L. Dig. of Dec. 12,856.

As to the testimony of the administratrix, she was the ap-. pellant’s witness. The grounds for her cross-examination wére laid in her examination in chief, and it is too late now for the appellant to try to exclude the testimony which her counsel rendered competent by his examination of the witness in chief: Watkins v. Hughes, 206 Pa. 526.

Upon a careful examination of the whole case, we see nothing erroneous in the findings of the auditing judge, or in the opinion of the judge who delivered the opinion of the court dismissing the exceptions to the adjudication..

The decree is affirmed and the appeal dismissed at the costs of the appellant.

Reference

Cited By: 6 cases
Status: Published
Syllabus: Appeals — Findings of fact — Conclusiveness of — Orphans’ court. A finding by an auditing judge that a gift of personal property was actually made by a husband to his wife in the former’s lifetime, will not be reversed on appeal, where the finding is based on competent evidence and is confirmed by the court in banc. Evidence — ■Witness—Party dead. Where a party to a suit, otherwise incompetent by the death of another, is called for cross-examination by the adverse party, and examined as to matters occurring in the lifetime of the decedent, he is thereby rendered a competent witness for himself on all relevant matters.