#### In the Matter of the Judicial Settlement of the Account of Arline A. Perry, as Executrix, etc., of Anne Marchant Stacy, Deceased, Respondent. Frederick H. Johnson, Individually and as Executor, etc., of Anne Marchant Stacy, Deceased, and Others, Appellants.

Second Department,

December 30, 1908.

Executor and administrator— accounting— burden of proof — evidence —presumption as to ownership of stock.

One who objects to the accounts of a representative upon the ground that she has omitted certain stocks owned by the decedent is under the burden of showing that the stock was owned by the decedent at her death.

Where such ownership shortly before the decedent’s death is proved, the ownership is presumed to continue.

The fact that within twenty-three days of her death the testatrix signed blank assignments on certificates of stock which she had bequeathed by will, and the person appointed executrix witnessed said signature, raises no presumption of a gift or sale.

Mere possession of a non-negotiable instrument carries no presumption of ownership by the holder.

Appeal by Frederick H. Johnson, individually and as executor, etc., and others, from a decree of the Surrogate’s Court of the' county of Kings, entered in said Surrogate's Court on the 31st day *588of December, 1907, settling the accounts of the executrix of Anne Marchant Stacy, deceased, and also from a supplemental decree and an amendatory supplemental decree entered herein on the 10th day of March, 1908, and the 1st day of April, 1908, respectively.

*William H. Hamilton [Norman C. Conklin*and *Arnold Davidson*with him on the brief], for the appellants.

*Charles W. Church, Jr.,*for the respondent.

Gaynor, J.:

The appellants excepted to the account of the executrix, the respondent, on the ground that she had omitted therefrom a certificate of 100 shares of stock of the Chesapeake & Ohio Bailroad Company. The burden of proof was on the exceptants to show that the deceased testatrix owned the said certificate at her death. They proved that the testatrix’s husband owned the said shares, and , left the same to her by will, with certificates of shares in three other companies;. that 23 days before her death she had the said certificates of all of the said shares changed to new certificates in her own name from that of her deceased husband’s; that some time during the said 23 days (the day not being ascertainable) she signed the blank assignments on the back of the said new certificates, the said executrix signing as the subscribing witness thereto; that the deceased kept a box in a safe deposit warehouse, to which the said executrix had access; that the day after the death of the testatrix the said executrix went to it; that three days thereafter she delivered all of the said certificates to a firm of brokers for sale and transfer on the said blank indorsements; that the transfers were stopped by tlie companies on discovery by them that the testatrix was dead; that up to that time the said executrix had taken no steps to probate the will, although she knew of it; that thereafter she caused the will to be probated and qualified as executrix; that in her account she charged herself with all of the said shares except those of the said Chesapeake *&*Ohio Bailroad Company. All of the certificates were produced in court by counsel for the executrix. Ownership in the testatrix being proved, the usual presumption of •the continuance thereof existed, and was strengthened, if that could ■be, or were necessary, by the said conduct of the executrix. She *589put in no evidence. A gift to her by the testatrix is not to be presumed, nor a sale. On the contrary, the presumption was of a continuance of ownership by the testatrix, as already stated. Mere possession of a non-negotiable instrument does not carry a presumption of ownership in the possessor *(Cuyler*v. Wallace, 183 N. Y. 291; *Matter of*Bolin, 136 id. 177). The refusal of the Surrogate to find that the testatrix owned the said shares at the time of her death was error.

The decree should be modified accordingly.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county modified so as to decree that the testatrix owned the shares of stock at the time of her death, and as so modified affirmed, with costs to the appellants.