211 Pa. 490 | Pa. | 1905
Opinion by
The entire estate of Maria Crosetti, deceased, consists of two deposits in the name of decedent, one in the Philadelphia Saving Fund Society, and the other in the Western Saving-Fund, amounting at the time of her death to the sum of $2,784.69. The appellants claim that said deposits were made by Christopher Crosetti, the husband, in the name of the wife for convenience, but in fact belonged to him. In support of
Section 5, clause (e) of the Act of May 23, 1887, P. L. 158, provides: “ Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party.” The language of the statute excludes any person “ whose interest shall be adverse to the said right of such deceased.” What deceased ? The answer is obvious : “ Any deceased party to a subject in controversy whose right thereto or therein has passed either by his own act or by the act of the law to a party on the record who represents his interest.” It follows, therefore, that if the executors of Christopher Crosetti, deceased, had brought an action in the common pleas Christopher Crosetti must be considered within the meaning of the act as a deceased party interested in the thing or contract in action. In his lifetime he had a right to controvert tlie alleged gift to his wife. Upon his death this right passed to his legal representatives, and Louisa
It is true the general rule is that no one can claim in the distribution of a fund in the orphans’ court except through the decedent as creditor, legatee or next of tin. This general rule is settled law: McBride’s Appeal, 72 Pa. 480; Braman’s Appeal, 89 Pa. 78; Winton’s Appeal, 111 Pa. 387; High’s Estate, 136 Pa. 222. There is, however, an exception recognized in many cases, as for instance where the fund may be shown to be wrongfully included in the account either, because, though in the name of decedent it is really a trust, or where title or ownership is in another person: Marshall v. Hoff, 1 Watts, 440; Miller’s Appeal, 84 Pa. 391; High’s Estate, 136 Pa. 222; Qualters’s Estate, 147 Pa. 124. The present case is eleai’ly within the exception, and the court below bad jurisdiction to pass on the same. If, therefore, the executors of Christopher Crosetti are to be regarded as in a court of competent jurisdiction with authority to determine the question of ownership of the property in dispute, clearly Louisa Rataliatta must be considered as an incompetent witness unless a different rule of evidence obtains in the orphans’ court than in the common pleas. No such contention, we apprehend, will be seriously made. The fourth section of the act of 1887 is intended to cover the competency of witnesses in a civil proceeding before any tribunal of the commonwealth. The tribunal may be a register of wills,
The question raised in the case at bar does not grow out of the ordinary distribution of an estate, and hence the rule above stated does not apply. This is in fact a controversy between the executors of the deceased husband on one side, and the administrator of the deceased wife on the other, involving the ownership of the whole estate. There are two parties to this action. They are both dead. Their interests have passed to personal representatives, parties on the record. Had an action in the common pleas been instituted by Christopher Crosetti in his lifetime against the administrator of his wife, or had he presented a claim against the estate of his wife before an auditing judge, Louisa Itataiiatta would have been competent
As we have hereinbefore stated, the present case is not the ordinary distribution of the funds belonging to the estate of Maria Crosetti, deceased, but is a contest involving the ownership of the funds deposited in the saving fund societies, being-the thing or contract in action. The jurisdiction of the orphans’ court only attaches because of the equity powers lodged therein, and under the line of cases cited the auditing judge is authorized to find the facts and decide the questions involved. It is on this theory alone that the appellants had any standing in the court below. Both parties to the thing in action being dead, their rights having passed to personal representatives, parties on the record, it follows that Louisa Rataliatta, her husband and her brothers are all equally incompetent to testify to matters occurring in the lifetime of the parents. We must therefore consider the case without reference to the testimony of these witnesses. How then does it stand?
It has been frequently held by this court that money on deposit in the name of a wife is prima facie her money, and where it is claimed by her husband at her death the burden is
Maria Crosetti, the decedent, died on November 11, 1902, and on December 19, following, Christopher Crosetti, the husband, appeared before the register of wills and demanded letters of administration on said estate. He presented his petition, which was sworn to before the deputy register of wills, in which he sets out that the goods and chattels, rights and credits of Maria Crosetti, deceased, were valued at $2,784.69, being the exact amount of said deposits. On the same day he made an affidavit to faithfully perform his duties as administrator of said estate, in which he states, inter alia, “ that the whole of the goods, chattels, rights and credits of the personal estate she died possessed of in the aggregate, do not in value exceed the sum of two thousand eight hundred dollars.” He then gave his bond in the sum of $5,600, with Frank Cuneo and Joseph J. Crosetti, the appellants, as his sureties. He received letters of administration and proceeded to administer the estate. He died on October 22, 1903, before the year had expired in which to file his account. There is no testimony showing or tending to show that he ever questioned the right of his wife to these funds. Every act of the husband negatives the position now taken by his executors, the appellants here.
He who alleges a trust takes the burden of proving it, and all of the essential requisites must be shown by clear, exjjlicit and unequivocal proof: Earnest’s Appeal, 106 Pa. 310. In the case at bar the proof does not measure up to this standard. The only testimony offered which tended to prove such a trust was that of Frank Cuneo, with some corroboration by his son. The testimony of these witnesses is indefinite, vague and inconclusive in its effect. In substance they say that Chris
To support the contention of the appellee, we have three important and to our minds controlling facts: first, the moneys were deposited in the name of the wife and subject to her control; second, the husband recognized these moneys as belonging to his wife when he took out letters of administration, gave his bond and proceeded to administer said estate; third, the accountants when they filed the first and final account of Christopher Crosetti, administrator of Maria Crosetti, deceased, charging themselves with these very funds and making affidavit that the facts stated in their account were true, that the balance shown by the account was correct and belonged to the estate of Maria Crosetti, deceased, admit that the estate did so belong. The questions of fact involved in this case were found in the court below in favor of the appellee and will not be disturbed by an appellate court except upon manifest error, and where there is no evidence to support the finding: Country
Assignments of error overruled and decree affirmed.