#### Mothes’ Estate.

*Appeals*— Findings *of fact*— Conclusiveness *of*— Orphans’ *court.*

A finding by an auditing judge that a gift of personal property was actually made by a husband to his wife in the former’s lifetime, will not be reversed on appeal, where the finding is based on competent evidence and is confirmed by the court in banc.

*Evidence*— ■Witness—Party *dead.*

Where a party to a suit, otherwise incompetent by the death of another, is called for cross-examination by the adverse party, and examined as to matters occurring in the lifetime of the decedent, he is thereby rendered a competent witness for himself on all relevant matters.

Argued Oct. 10, 1905.

Appeal, No. 130, Oct. T., 1905, by Bertha Mothes, from decree of O. C. Phila. Co., Jan. T., 1905, No. 465, dismissing exceptions to adjudication in Estate of Alfred H. Mothes, deceased.

Before Rice, P. J., Beaver, Orlad y, Porter, Morrison and Henderson, J J.

Affirmed.

Exceptions to adjudication.

Dallett, J., filed the following opinion:

The accountant in this case, Emma Mothes, the widow and administratrix of the decedent, refused to account for #1,666.67 paid to her after her husband’s death on account of his interest *463in the Meehan-Mothes Company. This interest was represented by stock certificates of the face value of $5,000, worth at the dissolution of the company $1,666.67.

The accountant claimed that the stock was a gift to her by her husband during his lifetime and that the money received therefor was her own. The exceptions filed on behalf of Bertha Mothes, decedent’s mother, are to the refusal of the auditing judge to surcharge the administratrix with the amount received for the stock.

The decedent was the manager and vice president of the Meehan-Mothes Company up to the time of his death, on December 7, 1903.

On the evening of February 7, 1903, he brought certificates for this stock to his home and in the presence of a niece, Emma Boyd, then fourteen years old, and a frequent visitor at the house, gave them to his wife, telling her that she should keep them and not leave them out of her hands, that they were hers. This occurred in the decedent’s bed-room, and the wife took the certificates and put them in a tin box in which the decedent kept small sums of money. They were never transferred to her because, according to her testimony, the decedent could not have remained as manager had he not held the stock in his name.

In Hafer v. McKelvey, 23 Pa. Superior Ct. 202, Oblady, J., citing Com. v. Compton, 137 Pa. 138, says : “ It is now well 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.”

And in Hani v. Ins. Co., 197 Pa. 276, McCollum, J., said: “ That while formerly the doctrine was that a gift of a chose in action requiring an assignment had to be actually executed it was then held with substantial unanimity that a written assignment was not necessary, and that a delivery of a chose of action under such circumstances as would constitute a gift of property in possession amounted to an equitable assignment of the property represented which the courts would recognize.”

If, therefore, the testimony in this case is competent there *464is no doubt but that the gift of this stock by the delivery of the certificates to the wife was valid.

There were two witnesses — the niece, a young girl who testified as to all the circumstances in relation to the delivery of the certificates, who was disinterested and certainly competent.

And the accountant, the widow, who testified as to the decedent’s relations with the Meehan-Mothes Company, his gift of the stock and his reasons for continuing it in his name. Primarily incompetent this witness was made competent by the adverse party when called for cross-examination and asked as to decedent’s membership in the firm at the time of his death, the name in which the stock was held at that time, to whom it belonged, etc.: Watkins v. Hughes, 206 Pa. 526.

The exceptions are dismissed and the adjudication confirmed absolutely.

*Error assigned*was the decree of the court.

*Charles F.*Linde, for appellant.

*G. E. Schlegelmilch,*for appellee.

November 21, 1905 :

Opinion by

Beaver, J.,

The effort here Avas to surcharge the administratrix, the widow of the decedent, Avith the proceeds of certain stocks alleged by her to have been a gift from her husband in his lifetime. Under the testimony of a disinterested witness, who was present when the gift was made, there Avas an actual delivery, accompanied by words which indicated a gift. The adjudicating judge, who heard the testimony, who saw the witness upon the stand and who had the opportunity for judging whether or not her testimony was inspired, found as a fact that a gift of the stock in question had been actually made. We have a careful opinion on this question from President Judge Hanna of the orphans’ court, covering the entire subject. Subsequently, upon exceptions to the finding of the auditing judge, Judge Dallett delivered the opinion of the court dismissing the exceptions. In a clear opinion, quoting *465controlling authorities, he satisfactorily disposes of both questions raised by the assignments of error.

The assignments of error here are not in accordance with our rules XV. and XVI. The appellee, however, does not object to them and we do not, therefore, dispose of the case on the ground of their insufficiency. If the testimony of the witnesses was believed, there were ample grounds upon which to find, as a matter of fact, that there was a gift, inter vivos, from the husband to his wife : 8 P. & L. Dig. of Dec. 12,856.

As to the testimony of the administratrix, she was the ap-. pellant’s witness. The grounds for her cross-examination wére laid in her examination in chief, and it is too late now for the appellant to try to exclude the testimony which her counsel rendered competent by his examination of the witness in chief: Watkins v. Hughes, 206 Pa. 526.

Upon a careful examination of the whole case, we see nothing erroneous in the findings of the auditing judge, or in the opinion of the judge who delivered the opinion of the court dismissing the exceptions to the adjudication..

The decree is affirmed and the appeal dismissed at the costs of the appellant.