Opinion by
A nаrrow question is involved — was the evidence sufficient to prove a gift mortis causa?
An action of replevin without bond was instituted by the Titusville Trust Company, Administrator d.b.n. of the Estate of O. P. Collins аgainst Edith Johnson and her son, Cecil Johnson, to recover certain stock certificates of various corporations of the approximate value of $25,000., which wеre registered in the name of the decedent at the time of his death. An answer was filed setting forth that Cecil Johnson did not claim any right in these certificates, but his mother, Edith Johnson, housеkeeper of the decedent, claimed to be owner of the certificates by virtue of a gift mortis causa from Collins two days before his death. The jury returned a verdict for defendant; plaintiffs motion for a new trial and for judgment n.o.v. were dismissed ; only the question of a judgment n.o.v. is raised on this appeal.
Collins was a junk dealer. His mode of living was ecсentric and comparable to that of a recluse. For many years he lived in a shanty consisting of three rooms in the midst of his junk yard in Oil Cr.eek Township, near Titusville, Pa. The defendant wеnt to work for Collins as a housekeeper in the spring of 1930. In *496 addition to living at the shanty and keeping house for the decedent, she also worked in the junk yard selling articles for him and gеnerally helping him in his business.
Collins, aged 56, died on January 15, 1951, at 12:05 A.M., intestate, unmarried, and without issue. He left a brother, sister, and niece and nephew, children of a deceased sister. Although the sister lived nearby, she hadn’t seen him for a long time and it is clear that his family paid no attention to him.
On January 12, 1951 Collins suffered a cerebral hemorrhage while in' Titusville with Edith Johnson. Cecil Johnsоn, the housekeeper’s son, in response to a telephone call from his mother, drove to Titusville where he found his mother and Collins, sitting in the latter’s automobile. Collins was seаted behind the steering wheel of his automobile with his head hanging down on his chest. Johnson offered to take him to the hospital, but the decedent asked that he be taken to the “yаrd”, referring to his home. When they arrived at the yard, Johnson immediately telephoned for the doctor. In the meantime, Collins refused to move from his automobile, saying that he would be all right in a little bit. While they were waiting for the doctor Mrs. Johnson went into the house while her son remained in or stood nearby the car. According to the testimony of Cecil Johnson, Collins then began fumbling about his shirt. He was accustomed to wearing several shirts or sweaters and no overcoat. He pulled out of his shirt a large brown manila envelope and asked Johnson to call his mother. His mother came out and sat in the decedent’s automobile. Collins, who had the envelope in his lap, handed it to her and said : “If anything happens to me, these stoehs are yours." * *497 She took the еnvelope containing the stock certificates and placed it in her pocket.
Shortly thereafter, the doctor arrived and, on examination, found Collins to be critically ill and ordered him to be taken immediately to the hospital. As Johnson was about to leave to take Collins to the hospital, his mother handed him the envelope сontaining the stock certificates. The following morning, January 13, 1951, Johnson placed this envelope in his safe deposit box in the bank in Pleasantville. At the trial he proved, and thе cashier of the bank corroborated him, that the box contained the securities in question.
The testimony was conflicting in some parts but there was no conflict as to Collins’s illness or Johnson’s testimony as to the gift of the securities and what was done with them. The stock certificates were not endorsed and were obtained under circumstances which were undoubtedly suspicious, but the equities of the case were with the defendant, and Johnson’s testimony, which was unshaken, was obviously believed by the jury.
We said in
McDonald v. Ferrebee,
In
Elliott’s Estate,
What is the meaning of • the words Collins used when he handеd Mrs. Johnson the stock certificates; was there an actual or constructive delivery; and did
*499
Collins believe death was impending? A question similar to the last one arises in casеs involving the admissibility of dying declarations and the rule or test there laid down is equally applicable here. To validate a gift mortis causa, it is not necessary that the donor whо is sick or ill or injured expressly say that he knows or believes he is dying — that may be inferred from the attendant circumstances. It will suffice if at the time the gift was made, the donor believed hе was going to die, that he was likely to die soon; and death did actually ensue within a reasonable time thereafter. The question depends primarily upon the state of the dоnor’s mind. In passing upon this question all the attendant circumstances should be considered, including the nature and extent of his sickness, illness or injuries, his physical condition, his conduct, and anything that was said to and by him. Whether the attendant facts and circumstances of the case warrant submission of this question to the jury is in the first instance for the court, but when admitted, the donor’s stаte of mind and the credibility, interpretation and weight to be given his statements are for the jury under proper instructions. Cf.
Commonwealth v. Knable,
We have no doubt that the court in the first instance, and the jury ultimatеly, could properly infer from the facts and circumstances of this case that Collins believed he was about to die when he gave Mrs. Johnson the stock certificates аnd said, “If anything happens to me, these stocks are yours.” There is considerably more doubt as to what those words mean, but we agree with the court below and the jury that they can fairly and reasonably be interpreted to mean “If I die these stocks are yours.” Cf.
Jacques v. Fourthman,
*500
Was the evidence sufficient in legal contemplation to establish the gift, i.e., was it cleаr and convincing. The burden of proving a gift mortis causa, like the burden of proving any inter vivos gift or claim against the estate of the decedent, is on the claimant and must be supрorted by clear and convincing evidence. Cf.
Tomayko v. Carson,
368 Pa., supra;
Leadenham’s Estate,
The fact that the stock certificates were not endorsed by Collins would not defeat an otherwise valid gift:
Chapple’s Estate,
The testimony of one witness as to the gift, if clear, certаin and convincing, especially if corroborated by other circumstances, is sufficient to make out a prima facie case: Cf.
Flanigan v. Flanigan,
The trial Judge who saw and heard the witnesses and who knew the quality and quantity of proof required to establish a gift mortis causa, felt that it was highly probable that Collins wanted Mrs. Johnson to have this property in the event of his dеath; and like the jury, the Judge believed the testimony of Cecil Johnson and accordingly refused a new trial. We agree with the lower court that all of the essential elements of a gift mortis causa were proved and that the *501 testimony was sufficiently clear, certain and convincing to warrant its submission to the jury.
Judgment affirmed.
Notes
Italics, throughout, ours.