Commonwealth v. Crompton , 137 Pa. 138 ( 1890 )

Opinion,

Mr. Justice McCollum:

The specifications of error call in question the jurisdiction of the court, the right of the appellee to traverse the inquisition, and the sufficiency of the evidence to establish a valid gift.

Proceedings to escheat the estate of a person who dies intestate, without heirs or any known kindred, are governed by the statutes, and these allow any person in whose possession the goods and chattels are found to traverse the inquisition in the Court of Common Pleas. In this case, the commonwealth seeks to escheat, as the property of Alexander McNaughton, deceased, certain goods and chattels in the possession of the appellee, who is the administratrix of his estate. That she may traverse the inquisition as administratrix cannot be doubted since the decision of this court in Crawford v. Commonwealth, 1 W. 480. But, while she is described in the traverse as administratrix, she denies that the estate has any title to the property in question, and claims that she is the sole owner of it. There is nothing in the grant of letters of administration to her, in the inventory filed, or account stated by her, which estops her from asserting her claim upon a traverse in the Court of Common Pleas. It was not suggested upon the trial that this claim was res judicata, by virtue of any proceedings had upon it in the Orphans’ Court, and the question is not before us on any specification of error. The point presented by the appellant recognized it as an unsettled claim, and asked for a verdict upon the traverse in favor of the commonwealth, upon the ground that the alleged gift was not established by satisfactory evidence, and that the question was exclusively for the Orphans’ Court. If no mistake was made in the refusal of these points, the judgment must stand,' as the question of fact raised by the traverse was fairly submitted to the jury.

It is provided by the escheat statutes that a claimant of the property may contest the inquisition before a jury, and they designate the Court of Common Pleas as the tribunal in which the issue made by the traverse shall be tried. The traverse may be general or special; it may extend to all, or be limited to one or more of the facts necessary to support the inquisition; but the jurisdiction cannot be doubted, as it is expressly conferred by the statutes under which the appellant claims. The commonwealth assented to the issue made by the traverse, and sought to obtain a verdict in it upon the merits and the grounds before stated, but did not intimate that the effort to surcharge the appellee in the Orphans’ Court with the property in question was in the way of her recovery. The claim of the appellee is not res judicata by any decree of the Orphans’ Court’; it has not been finally adjudicated there. The report of the auditing judge is pending upon exceptions filed to it, and the adjudication has been stayed to await the determination of this issue. This is in accordance with the practice of that court, as shown by Murray’s Est., 13 W. N. 552. As there are no heirs or creditors, and the parties to this suit are the only claimants of the property, their dispute should be settled in the tribunal and the manner appointed for its decision.

A gift needs no consideration to support it, yet in the present case there was a valuable one acknowledged by the donor, and impelling him to the action which is the subject of this controversy. For twenty-one years he lived in the family of the donee as a boarder, and had his washing and mending done there, and for these he promised to pay her. He was in poor health the last four years of his life, and required and received from her and her children considerate care and attention. He often manifested grateful appreciation of these services, and expressed a purpose to make compensation for them. In execution of this purpose, he delivered to her the box containing the government bond and the certificates of railroad stock. It is apparent from the evidence that he intended to make an absolute gift of these securities to her, and that he supposed the delivery, and the words accompanying it, invested her with the exclusive control and ownership of them. There remains for consideration the question whether the failure to make a formal written transfer of the securities to the donee, will defeat the purpose of the donor and give them to the commonwealth as an escheat.

It is now settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or indorsement in writing. This principle has been applied to notes, bonds, stock and deposit certificates, and life-insurance policies. In Pennsylvania, Wells v. Tucker, 3 Binn. 366; Licey v. Licey, 7 Pa. 251, and Madeira’s App., 17 W. N. 202, are illustrations of and rest upon it, and it has distinct recognition and approval in other deliverances of this court. In Walsh’s App., 122 Pa. 177, we refused to extend it to a depositor’s bank-book, but acknowledged “that, in the case of notes and other instruments payable to order, a delivery accompanied by words importing a present absolute gift would invest the donee with the ownership of the fund.” The bank-book was regarded as on the same footing as a book of original entries, and the mere delivery of it to the donee as insufficient to pass any title to the accounts appearing upon it. But “ a certificate of deposit is a subsisting chose in action, and represents the fund it describes, as in case of notes, bonds, and other securities, so that delivery of it as a gift constitutes an equitable assignment of the money for which it calls: ” Basket v. Hassel, 107 U. S. 602. In the case last cited, Mr. Justice Matthews, after an exhaustive examination of the authorities, said: “ The point which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation, and be delivered to the donee so as to vest him with an equitable title to the fund it represents and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa.”

The shares of stock are choses in action, and the certificates evidence of the title to them: Slaymaker v. Bank, 10 Pa. 373. Why may not a delivery of the certificates, coupled with words of absolute and present gift, invest the donee with an equitable title to the stock, which the donor or a volunteer cannot successfully assail ? A stockholder may clothe another with the complete equitable title to his stock without compliance with the forms printed by the corporation: United States v. Vaughan, 3 Binn. 394; Commonwealth v. Watmough, 6 Wh. 117; Building Ass’n v. Sendmeyer, 50 Pa. 67; Finney’s App., 59 Pa. 398; Water-Pipe Co. v. Kitchenman, 108 Pa. 630.

As the gift in question was supported by a valuable consideration, and the instruments which represented the ownership of the donor in the subject-matter of the gift were delivered to the donee, we think she has a title to the securities which cannot be destroyed in a proceeding by the commonwealth to es-cheat them.

Judgment affirmed.