Opinion,
Mr. Justice Williams :Daniel Heffner died intestate on the 1st day of August, 1884. Letters of administration upon his estate were issued to Franklin D. Heffner, his son. The final account of the administrator *442came before tbe Orphans’ Court of Berks county for adjudication on the 3d day of September, 1889. On the hearing, a claim was presented for the first time by the widow of the decedent and mother of the accountant for él,000, which she alleged was money belonging to her separate estate, in the hands of her husband for her use when he died. The evidence offered in support of this claim consisted of cértain receipts signed by both Mr. and Mrs. Heffner, and the testimony of the accountant. The receipts, and the reason for the name of Heffner appearing on them, were explained by the person to whom they were originally given. He said he had money to pay to Mrs. Heffner, and he was advised to require a receipt signed by herself and her husband before paying over the money, and that he accordingly insisted on their joining in the receipt. When this was done he took the receipt, and left the money upon the table, and went away. He did not know who took charge of it.
The receipts, therefore, as explained, did not show that the money went into the hands of Daniel Heffner. The testimony of the accountant related to the declarations of his father made to him in regard to the money of the claimant. Pie said: “ My father did tell me that she had given him money, but did not say how much.” He also said that his father told him: “ If she did not stop scolding, he would give it back to her, and she could do as she pleased with it.” These are all the declarations shown by the accountant, and all the evidence on which the decree of the court below can rest. The declarations are vague, indefinite, and equally consistent with the allegation of a gift of some portion of her money to her husband as with that of a loan. Whether a gift or a loan, the amount is not fixed, nor is there anything in the testimony by which it can be ascertained. The declarations do not throw light upon the exact point of controversy or of complaint on the part of the wife. What was the subject of her scolding when her husband grew impatient, and said to his son: “ If she did not stop scolding he would give it back to her, and she could do as she pieased with it? ” Had she loaned him money, and was she demanding a note or bond as security for it? Then the most natural way to appease her would have been to give the note or bond demanded. Had she given him money or intrusted *443money to his care that she now wanted to take back into her own hands ? Then the direct route to peace lay in the line which her husband’s words indicated when he said he would “ give it back to her, and let her do as she pleased with it.” There was in this no acknowledgment of a debt, no recognition of an obligation to pay, but rather the expression of a purpose to permit his wife to have her own way, and do as she pleased with her money.
The learned judge of the Orphans’ Court found, however, from this evidence, that Daniel Heffner had at the time of his death $900 of his wife’s money in his hands, for which his estate was liable to her. In the opinion, the court said: “ The court has no definite information when they or any of them (the talks between the witness and his father) were had. It takes it, however, that if they had not occurred during the latter years of deceased, the interested witness, and if not surely his counsel, knew enough to fix the time during the early years of said yearly payments.” The court found, therefore, that the conversations between the witness and his father “occurred during the latter years of deceased,” and after money enough had been paid on the joint receipts of his wife and himself to make up the sum found due from him. This finding the learned judge admits does not rest on the testimony, but on his estimate of the intelligence of the accountant and his counsel, ahd the kind of defence which, in his opinion, persons of such intelligence would be likely to make if they had it in their power to do so. In the absence of the necessary proof on the part of the claimant, the learned judge set up a presumption, based upon the intelligence of the accountant and his counsel, and allowed this presumption to supply the defect in the claimant’s case. The reasoning seems to be substantially this: “ The claimant alleges a loan of one thousand dollars out of her own money to her husband, and demands it out of his estate. The proof is indefinite and insufficient. It does not show how much of her money came into his hands, or when, or whether it was received as a gift or a loan; but if he did not have at least nine hundred dollars, and did not receive it as a loan, the known intelligence of his administrator and the attorney for the estate would enable them to establish a negative.” Because they did not establish a negative, the *444learned judge inferred or presumed the affirmative, and accordingly made the decree.
The trouble with this method is that it puts the burden of proof on the wrong shoulders. The general rule undoubtedly is that a defendant may wait, before breaking silence, until a case has been made out against him that will justify a verdict or decree; but, under the doctrine applied in this case, such waiting may supply the want of a case against him, and be the ground of the decree. This, it seems, would be the case, at all events, where the court entertained a good opinion of the intelligence of the party and his counsel. We can hardly agree to this method of proof. This claim may be a meritorious one, but it seems never to have been presented to the administrator. More than five years after her husband’s death, after her own second marriage, and in the Orphans’ Court on final distribution, it comes first to the notice of the parties interested in the estate. When, in addition to these circumstances, it is remembered that the administrator is the son of the claimant, living in the same neighborhood, and that they were necessarily brought frequently into contact with each other during the course of administration, in which- the rights of the widow under the intestate laws- had been fully protected, we see no reason for relaxing the rules of evidence in her favor, if we bad the power to do so, or for putting a penalty upon the intelligence of the administrator and his counsel.
The decree is reversed, and a procedendo awarded.