Opinion by
Bеnjamin Donsavage (decedent), died, testate, on January 15, 1964, survived by a Avife and three children. Decedent’s Avill, after providing a bequest of tools and sporting equipment to a nonrelative, left the rest of his assets “to my estate” and appointed one Helen Mockler as the “administrator” of his estate. 1 This will was probated and letters testamentary issued to Helen Mockler.
On April 14, 1964, the personal representative filed an inventory of the estate. Decedent’s widow and children (petitioners), then petitioned the Orphans’ Court of Luzerne County for a citation upon the personal representative to show cause why she should not file a supplemental inventory 2 to include therein, as assets of decedent’s estate, certain specifically identified stock of twelve different corporations. The personal representative answered this petition and a hearing was held before the court. After hearing, the court directed the personal representative to include the stock in a supplemental inventory. From that decree the personal representative has appealed. 3
*591
At the hearing which led to the instant decree, the court considered two issues: (a) whether the personal representative should file a supplemental inventory and (b) the ownership of the stock vis-a-vis the estate and the personal representative as an individual. Initially, the propriety of such proсedure must be determined. In
Rogers
Estate,
The petitioners, objecting to the inventory filed, averred, inter alia: (1) that “at the time of his death, [decedent] was the owner of the following listed corporate common stocks registered in his name: [followed by a list of stock]”; (2) this stock was an asset of decedent’s estate which had not been inventoried. By way of answer, the personal representative averred, inter alia: (1) that, while the stock was registered in the decedent’s name, “at the time of his death” he did not own them; (2) that the stock was not an asset of the decedent’s estate; (3) that on January 12,1964 — three days prior to his death — decedent had endorsed in blank the stock certificates and had delivered them as a gift to the personal representative as an individual and that such certifiсates had remained in her exclusive possession until decedent’s death.
The petitioners’ case rested solely upon those portions of the petition and answer — offered and received in evidence — which contained an admission that at the time of his death the stock certificates were registered in the decedent’s name and had been in decedent’s possession until three days prior to his death;
*593
from such registration and receney of conceded possession, the petitioners contend, flows a
presumption
of ownership sufficient to establish a
prima facie
case. It was the petitioners’ burden to prove
ownership
of the securities by the decedent when he died;
5
if and when petitioners sustained such burden it then became the burden of Mrs. Mockler to come forward with evidence to establish the validity of the alleged gift inter vivos to her of the stock:
Henes v. McGovern,
The fact that, at the time of death, stock is
registered
in the name of the decedent and was, concededly, possessed by him three days prior to his death gives rise to a
presumption,
rebuttable in nature, that the
ownership
of the stock was in the decedent.
6
Cf.
Great
*594
Northern Ry. Co. v. Sutherland,
Petitioners having shown that all the disputed stock Ayas ..registered in . decedent’s name and in his recent possession, then Helen Moekler had the burden of going, forward with-evidence to show that she, not the decedent, owned the stock when' he died; more specifically, she ‘then had the burden of proving that the decedent, ' Avith .donative intent, had delivered, either ac-.. tually or constructively, the securities to her and that the decedent had;.divested himself of and invested .her with the requisite dominion over the stock:
Brozenic Estate,
Helen Mockler’s case, was based upon, certain oral testimony, the stock certificates and certain portions of her answer offeréd and received in evidence. The stock certificates had been endorsed by the decedent with the spaces, on such certificates provided for the insertion of
*595
the dates and the names of the transferees left blank; the time of endorsement of such certificates and the possession of such certificates at the .time of death was dependent upon oral testimony which will, be discussed infra. . The fact that decedent had endorsed the certificates in blank
per se
is neither controlling nor indicative of the existence of an intent that such endorsement operate as a gift:
Carr Estate,
While endorsement of the certificates in blank by the decedent
plus
the possession of such certificates by Helen Mockler at the time of decedent’s death would raise a presumption of ownership
7
yet the fact of possession of such certificates by Helеn Mockler has not been proven on this record by evidence of the necessary qualitative standard. It is clear beyond question .on this record that, until three days before his death, the stock certificates were in decedent’s possession and the possession and ownership by decedent of such certificates until such a short time before his death raises a presumption that such possession and ownership continued until his death, at least until it has- been established by clear, direct, precise and convincing testimony that there had been a change in such possession and ownership:
Kaufmann’s Estate,
Helen Mockler produced the oral testimony of four persons, including her own testimony. Reed Travis, decedent’s friend and former employment supervisor, shortly thereafter was notified of decedent’s deаth;-he' immediately went to decedent’s home where he met Mrs. Mockler and a Mrs. Girton; Mrs. Mockler told him that the decedent had made a gift three days prior thereto of the stock certificates which she then showed him and that she had had them over the three day period in her handbag; he described decedent’s relationship with Mrs. Mockler; he testified that he had searched for and found two wills, one will wherein he was named the executor and a later will wherein Mrs. Mockler was named “аdministrator”. Julia Girton, a friend of decedent of long standing with whom decedent and Mrs. Mockler mingled socially, stated that she *597 had notified Mrs. Mockler of decedent’s death; at Mrs. Mockler’s request, she had met her and Mr. Travis later at the home of the decedent; that Mrs..Mockler showed her the stock certificates and related to her the story of the gift to her of these certificates by the decedent. The testimony of both the witnesses Travis and Girton was received over petitioners’ оbjection and later excluded from the record by the court. Insofar as such testimony contained Mrs. Mockler’s related version of the gift inter vivos of the stock certificates and the incidents surrounding such alleged gift, the court acted properly in excluding such testimony.
Both Travis and Girton testified to that which Mrs. Mockler related concerning the circumstances of the alleged gift: such testimony was hearsay and, clearly, not admissible. It was an attempt to prove by these witnesses not what the decedent said to. them but what Mrs. Mockler said the decedent had said to her. In
Hartley v. Weideman,
Accepting as a premise that the evidentiary rule which excludes self-serving statements or declarations does hаve an exception where the declarant is in actual possession of personal property and the declaration is in support of the title thereto and, assuming, arguendo, that the instant record would support a finding that the possession of the stock certificates was in Mrs. Mockler, the testimony of the witnesses Travis and Girton as to the declarations of Mrs. Mockler would still be inadmissible. The exception to the hearsay rule which counsel urge is based upon the theоry that the hearsay rule is inapplicable where the testimony offered consists of “the acts and declarations of claim of title by the occupant [or the possessor]” of property which make “more definite and significant the nature of [such] person’s custody or occupation [or posses
*599
sion]” of the property.
8
Even under that theory and again assuming, arguendo, the possession of the stock certificates by Mrs. Mockler at the time of decedent’s death, the declarations аnd statements of Mrs. Mockler sought to be introduced through the testimony of the witnesses Travis and G-irton went far beyond the type of statements and declarations contemplated as an exception to the hearsay rule. The exception to the rule admits self-serving statements and declarations only if they are restricted and limited to show the character of the possession or occupancy claimed; statements and declarations should be excluded if “their solе effect is to show the source of title, . . . and are but narrative of past transactions with respect to title.”
(Radford v. Hill,
The third witness for Mrs. Mockler was Dolores Dohman, a fellow-employee of Mrs. Mockler, who testified that two days prior to his death the decedent was transporting Mrs. Mockler and herself to their respective homes in his automobile; that, when the automobile skidded and an accident was narrowly averted, decedent then stated to Mrs. Mockler “Don’t worry, if anything happens to me you are well provided for.” Such testimony does not establish a gift inter vivos of these stock certificates:
Fahringer v. Strine Estate,
Mrs. Mockler next claims that she was competent as a witness to prove this gift. Mrs. Mockler appears in *600 this proceeding in a dual capacity, both as personal representative and a claimant against the estate. Her competency is urged on three grounds: (a) the issuance of the citation upon her to show cause why the stock should not be included in a supplemental inventory rendered her competent; (b) that a prima facie case had been established that decedent gave her this stock and she thus represented the decedent’s interеst upon this record and her interest would not be adverse to- that of-the decedent; (c) since the citation was issued against her in her representative, rather than individual, capacity, she represented the estate and interest of the decedent.
The first ground is clearly without merit. It is Mrs. Mockler’s theory that, having been called upon to include the stock in an inventory, she was rendered competent to testify to her ownership of the stock. The rule of the case law upon which she relies is that “where a decedent’s estate is seeking to recover property allegedly owned by the decedent, and the defendant in possession of it is bound to admit such ownership”, the defendant in possession is rendered a competent witness
(Armitage v. Ulrich,
Next, it is urged that, if deсedent did,, in fact, make a gift of this stock to Mrs. Mockler, then she represents the interest of the decedent and her testimony not being adverse to .decedent’s interest 10 would be competent. If the proven facts did establish such a gift, then she would be competent. To establish inconipetency under the statute, the party who claims that the other is incompetent must claim through the decedent. In this action between those who claim as devisees and legatees under the decedent’s will and one who claims to be a donee of this stock, it is obligatory to determine whether it has been prima facie established that a valid gift was made to donee in decedent’s lifetime; if the transfer is not prima facie valid, the alleged donee is incompetent to testify against decedent’s widow and children who represent decedent’s interest by virtue of the will; if the transfer is prima facie valid, then the dpnee is the representative of decedent’s interest, not thе widow and children, and is rendered competent to testify. 11 In the case at bar, clearly, the record does not *602 reveal such a prima facie valid transfer of this stock so as to place Mrs. Mockler in the status of representing decedent’s interest; upon this ground no claim of competency can be predicated.
It is also urged that, since the citation was issued against Helen Mockler in her representative rather than individual capacity, she thus represents decedent’s interest and was competent to testify. The thrust of the action was that ownership of this stock was in the estate of decedent and not in any other individual or entity; to determine the title it was necessary to call upon Mrs. Mockler in her representative capacity to account for such alleged assets of the estate. The mere designation eo nomine of Mrs. Mockler as executrix cannot render her representative of the interest of decedent when in fact she denied ownership in decedent and claimed ownership in herself. 12
Lastly, Mrs. Mockler contends that the court below erred in not considering as of probative value certain portions of her answer. Paragraph 6 of the answer admitted registration of the stock in decedent’s name when he died but denied he owned the stock for reasons stated in Paragraph 7. Paragraph 7 of the answer admitted omission of the stock from the inventory and then averred that the stock was not included in the inventory because Helen Mockler owned this stock by reason of a gift inter vivos the alleged facts of which gift she then proceeded to recite in the answer. When the petitioners offered in evidence that portion of Paragraph 6 which admitted registration of the stock in de *603 cedent’s name and that portion of Paragraph 7 which admitted omission of the stock from the inventory, Mrs. Mockler’s counsel objected unless all the respective portions of the two paragraphs of the answer were offered in evidence. The court overruled such objection but later did permit Mrs. Moеkler’s counsel to place upon the record, over petitioners’ objection, the entire answers contained in the two paragraphs. It is now argued that such portions of the answer received in evidence which alleged the facts upon which a claim was made of a gift inter vivos had probative value which the court ignored. What is really argued is that the allegations of the answer which purport to establish the gift inter vivos having been received into evidence, such allegations per se established the gift inter vivos. Such argument lacks any legal basis and is without merit.
A careful examination of this record, unequivocally, indicates that the testimony offered in support of the existence of a gift inter vivos of this stock, with the exception of the testimony of the witness Dohman, was clearly incompetent and that the witness Dohman’s testimony as to an alleged statement of decedent was vague, equivocal and indefinite and alone could not establish the gift. The burden of proof was upon Mrs. Mockler; the proof presented was not only not clear, direct, precise and convincing but there was an almost complete absence of proof from competent witnesses. The court below properly held that decedent owned the stock at the time of his death and that the personal representative should file a supplementary inventory including such stock as assets of decedent. 13
Decree affirmed. Appellant to pay costs.
Notes
Decedent’s widow elected to take against the will.
We will treat this petition as an “objection to the inventory” filed under §405 of the Fiduciaries Act of 1949 (Act of April 18, 1949, P. L. 512, as amended by the Act of February 23, 1956, P. L. (1955) 1084, §3, 20 P.S. §320.405). Cf.
Kevra Estate,
In the capacity of personal representative,
Mrs. Mockler should have no right of appeal from a decree which directed her to include in the inventory as an estate asset the stock which she Ciatos
in her individual capacity (Ansel v. Kyger,
See: Commissioners’ Comment on amendment.
‘If it be claimed that testator owned other property which either came or should have come into the hands of the accountant the burden is upon the party so claiming to show first of all that the omitted [from the inventory] property was the property of the testator.”:
Cutler’s Estate,
In at least two instances, the legislature has grantеd recognition to the presumption which flows from the registration of stock: (a) if stock is registered in a decedent’s name, the Orphans’ Court is given exclusive jurisdiction to determine the title to such stock: Orphans’ Court Act of 1951, P. L. 1163, §301, as amended, 20 P.S. §2080.301;
Rankin v. Kabian,
Stone v. Stone,
Wigmore on Evidence (3d ed.), vol. VI, §1779, p. 212 et seq.; Sampson v. Sampson, 4 S. & R. 329, 330; Babb v. Clemson, 10 S. & R. 419, 426, 12 S. & R. 328.
See also:
Ringer v. Finfrock,
Hendrickson Estate,
See:
Pronzato v. Guerrina,
In fact, the diversity and conflict of her interest may well have justified her removal as personal representative of this estate: Pu
rman’s Estate,
It may well have been considered whether the purported transfer of this stock, without the consent of the wife, was done with an intent to commit an actual fraud on the rights of the wife. See:
Montague Estate,