Gochenaur's Estate , 23 Pa. 460 ( 1854 )

The opinion of the Court was delivered by

Woodward, J.

Under the terms of the Acts of Assembly relating to the jurisdiction and powers of the Orphans’ Courts, and the opinion of this Court in Kittera’s Estate, 5 Harris 422, it is not to be doubted that the Orphans’ Court of Lancaster county had jurisdiction of the widow’s claim in this case.

The second and more important question is, whether under the circumstances in proof before the auditor the money claimed was so reduced into possession by the husband as to become his property. If it was, the widow has no title to it; if it was not, her right survived, and may be asserted in the Orphans’ Court.

The money came into his hands as administrator of Christian Newswanger, of whom Barbara was a daughter and heir, and to her Gochenaur stood in the double relation of husband and trustee.

In Baker v. Hall, 12 Vesey 497, where an executor entered into possession of the real and personal estate of the testator, married one of the residuary devisees under the will, and died, leaving her surviving him, it was held by Sir William Grant, Master of the Rolls, that the husband must be considered to have entered into possession as trustee and executor of the will only, and not as husband, and therefore his wife’s share of the residue could not be deemed sufficiently reduced into possession so as to prevent its surviving to her upon his decease. And in Wall v. Tomlinson, 16 Vesey 413, it was said that the transfer of stock to a husband merely as trustee cannot be regarded as a reduction into possession that will entitle his representatives. It was made diverso intuitu. “If the husband take possession,” says Chancellor Kent, 2 Com. 138, “ in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife if she .survive him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take as survivor instead of the personal representative of the husband.”

This distinction has been fully adopted in Pennsylvania, and a series of well considered cases, carrying out the principle to its logical result, has established that reduction into possession so as to work a change of ownership, is a question of intention, to be inquired of upon all the circumstances. Conversion is not reduction into possession, but only evidence of it, and therefore conversion may be explained by other evidence, negativing the intention to reduce to possession in such manner as to transfer the title. According to these cases marriage is treated as only a conditional gift of the wife’s choses in action, — or, to speak more accurately, a gift to the husband of her power to dispose of them to himself or any one else, by force of the dominion to which he has succeeded as the representative of her person; and because the gift is conditional he has a right to reject it by refusing to perform the condition. The law does not cast it upon him beyond his power of resistance ; for every gift requires the assent of the donee, and hence clear proof that a husband received his wife’s money as a loan, or a disclaimer of intention to make it his own property, proved by his admissions, will preserve her right of survivorship: Siter’s case, 4 Rawle 478; Hess’ Appeal, 1 Watts 255; Hind’s Estate, 5 Wh. 138; Timbers v. Katz, 6 W. & Ser. 290; Gray’s Estate, 1 Barr 329; Woelpper’s Appeal, 2 Barr 71. It was said in Gray’s case that such admissions as a medium of proof are to be scanned with extreme vigilance; and to prevent the consequences of misapprehension or mistake on the part of witnesses, it is necessary that they be deliberate, precise, clear, and consistent with each other; not inconsiderate, vague, or discrepant — a rule founded in the experienced uncertainties of parol proof, and most necessary to be continually applied.

Beside the implications from the fiduciary character of Gochenaur, we have in this case his declarations and admissions made, not in casual conversations after receipt and conversion of the money, but in the very act of receiving it, and which seem to answer all the conditions of the above rule. Thus Barr, who saw him receive $415 of the money in 1850, swears that he declared at the time, “ It is my wife Barbara’s, and it is to be hers.” And Ann Newswanger, speaking of the money he got from the notes and articles bought at the vendue, amounting to $700, reports him as saying, “ he would take this money and pay his debts on which he was paying interest, but that it was Barbara’s money, and should be hers.” Anna Kline thinks she was present three times when Gochenaur got money, and every time she heard him say it was his wife’s, and should be hers. She saw him count the $700 ; he said “ it was his wife Barbara’s; he owed it and was going to pay it out; he oughtn’t almost to take it to pay his debts.” It cannot be doubted that such declarations imported an intention to convert the money to his use as his wife’s money and not his own — that is, they explain the act of conversion consistently with his intention that it should survive to her and not be so reduced into his possession as to extinguish her right. The credibility of the witnesses was for the auditor, and we cannot rejudge his judgment on this point. Taking their testimony as true, we think the auditor and the Court were right, in view of it and of the fiduciary relation of Gochenaur to the fund, in decreeing the money to Barbara.

The Court were clearly right in reversing the auditor on the question of interest, and of this the appellant has no reason to complain.

The decree is affirmed.