Estate of Corson

Opinion,

Mr. Justice McCollum:

The accountant was a competent witness in his own behalf, as to all relevant matters, after the exceptant had compelled him to testify as if under cross-examination: § 7, act of May 23, 1887, P. L. 160. His credibility, like that of any other witness, was for the auditor, who, in weighing his testimony, should and presumably did have due regard to his position and interest in the cause. His explanation of the transfer to him of the $1,000 United States bond was complete, clear, and uncontradicted by any evidence, direct or circumstantial, and it showed that he purchased the bond and paid full value for it. This explanation was satisfactory to and credited by the auditor, and he therefore refused to surcharge the accountant with the value of the bond. He could not have done otherwise, without palpable and arbitrary disregard of undisputed testimony.

The gift of one hundred shares of the preferred stock of the Northern Pacific Railroad Company was made on the 12th of January, 1885, and the donor died on the 24th of June, 1886. It was repeatedly acknowledged and confirmed by her in conversation with friends, and she never evinced any disposition to recall or impeach it. It was advised and afterwards approved by her mother, under whom the appellant claims. The relations between the donor and donee were such as cast upon the latter the burden of showing that the gift was the free, intelligent, and uninfluenced act of the former. If it was, her right to make it cannot be successfully questioned, and he might lawfully accept it. That she did precisely what she intended to do is not denied, and that she had an intelligent comprehension of what she was doing is apparent from the uncontradicted evidence. The learned auditor, starting with the presumption against the donee arising from the relations of the parties, found from the testimony, with the approval of the Orphans’ Court, that the gift was the free act of the donor, and that there was no taint of fraud or undue influence in it. If this finding was authorized by the evidence we cannot set it aside. It appears that the donor, more than a year subsequent to the gift, executed a will in which she gave to the donee a legacy. This will was attacked by her mother upon the ground that it was the product of undue influence exercised over the testatrix by the present accountant. The will was sustained, and the decision of the Orphans’ Court refusing an issue was not appealed from. It is not pretended that the testatrix had more capacity, or that the accountant had less influence with her, when she executed the will than when she made the gift. We have carefully read and considered all the evidence submitted to the auditor, and, in view of it, are unable to say that he erred in finding that the gift was the free, uninfluenced act of the donor.

We, approve the refusal to decree that the stocks and bonds received by the decedent from her mother be transferred to the estate of the latter. A suit in equity for the recovery of these securities was then pending in the Court of Common Pleas, and that was the proper tribunal to settle the questions raised by the bill and answer. It had undoubted jurisdiction of the subject, and was proceeding in due 'course to a decision. The appellant is seeking to recover specific securities, in the possession of the executor of the estate of Mary Ann Corson, upon the ground that the title to them is in the estate of Maria Corson. The executor of the former estate has filed an account in the Orphans’ Court, in which he is charged with these securities. But, what standing has the appellant to object to this ? It is an act which does not prejudice any title of the estate she represents, and she is not contesting it as heir, creditor, or legatee of the estate of which the accountant is executor. It is a novel proposition that a party who asserts title to a chose in action in possession of and claimed by an estate, may recover it in an audit on exceptions to the executor’s account.

Decree affirmed, and appeal dismissed at the costs of the appellant.