Opinion by
Mr. Justice Dean,Emma Pryor, the plaintiff, claimed to recover from defendants the value of certain county bonds, worth $2,000 ; shares of bank stock, $870; school district bonds, $600; money and jewelry, $285 ; the value of the whole being about $3,800.
All of the property belonged, in her lifetime, to Mercy Morgan, an aged single woman, resident in Stroudsburg, and who died on the 10th of January, 1892. The plaintiff, a niece of Miss Morgan, alleged her aunt had made a gift of this property to her about three days before her death; that defendants’ intestate, James B. Morgan, as administrator of Mercy Morgan, by misrepresentation had induced her to surrender the possession to him, and thereupon converted it to his use.
It appeared from the evidence that Mercy Morgan, at her death, was about 77 years of age ; her occupation was that of seamstress; she had, through a long life of industry, economy and thrift accumulated this little estate. For nearly all of the last fifty years of her life she had lived in the family of her sister, Mrs. Ellen Sil vara; Emma Pryor, the plaintiff, is a daughter of Mrs. Silvara; she had married some years before, but during the last four years preceding Miss Morgan’s death had, with her children, occupied the house with her mother and aunt; there was conflicting evidence as to whether the relations between these women, thus situated, were at all times harmonious; but there was also evidence of deep affection on part of the aunt for her niece, which was reciprocated by the niece in such kindness and services as are usually appreciated by the aged and infirm. The aunt, often, in the presence of disinterested persons expressed her gratitude for these services, and declared her intention of giving her niece at her death all she had. To an intimate friend of thirty years, Lydia Palmer, she said, two or three years before her death, she would give *582all her property to her niece; would get a box and put her papers in it; then only two or three weeks before her death told the same witness she had done so. Other evidence of a like character, indicative of an intention to make the gift to Emma, was adduced. The illness ending in Miss Morgan’s death was of about ten days’ duration, and there was evidence that she was conscious of the serious nature of it and did not hope for recovery. She had in her room a tin box, in which she kept the property sued for; this she constantly had near her, and kept the keys to it under her pillow; on the Friday preceding the Sunday of her death, it was testified by one witness, a boy then ten years old, the son of Emma Pryor, the plaintiff, that Miss Morgan called his mother to her bedside and gave her the box, saying: “ Here, Emma, take it, it is all I have; I give it all to you;” that his mother took the box and went out of the room with it. There was proof that the securities, money and other articles claimed were in the box. There was conflicting evidence as to what took place, and what was said, when the administrator demanded the keys and took possession of the box; the plaintiff giving evidence tending to show she then asserted her right, and only surrendered the possession because of fear of imprisonment; on the other hand, defendants offered evidence tending to show declarations and conduct of plaintiff inconsistent with her claim now.
The learned judge of the court below submitted the evidence to the jury, instructing them, that if they believed there was a gift inter vivos or an absolute gift of the box and contents; or if a gift donatio causa mortis, in expectation of death, subject to the implied right of revocation if the donor recovered, plaintiff was entitled to a verdict. As to the character of the evidence necessary to establish either*, he further instructed them they' must find there was an actual delivery of the box ; a change of the physical possession; that the property sued for must have been in it at the time of the change of possession; that if a donatio causa mortis the donor must have been in conscious peril of death and the donee must have retained possession until after the expected event. He further expressly told them that notwithstanding all the testimony tending to show Miss Morgan’s affection for her niece and her expressed intention to *583reward her by a gift of her estate, yet of itself this was wholly insufficient to warrant a verdict; that unless they believed the testimony of plaintiff’s son, James Pryor, as to the actual delivery of the box, with the expressed intent to give its contents at the time, the verdict must be for the defendants. Under the charge there was a verdict for plaintiff’. The court had reserved as a question of law whether there was any evidence which would warrant a submission to the jury to find a gift; after-wards in an opinion filed it entered judgment on the verdict on the point reserved; and now defendants appeal pressing eleven assignments of error ; two of them to rulings on offers of evidence and nine to charge and answers to defendants’ points.
The first exception is to the admission of testimony in explanation of plaintiff’s surrender of the box to James B. Morgan, the administrator. Plaintiff was told she would be imprisoned if she did not give it. Defendants objected to the evidence as immaterial; the court admitted it. Plaintiff claimed the prop erty was hers as a gift from her aunt; defendants might very suggestively ask, Then why did you give it up to the administrator after her death? She attempted by this offer to answer, Because I was told I would be imprisoned if I did not. Whether this satisfactorily explained her inconsistent conduct was for the jury, but that it was material is obvious and there was no error in admitting it.
Second assignment. Defendants offered to show by a witness, Mary Sigafus, also a niece of Miss Morgan, who had already testified at considerable length, that Miss Morgan had told Emma Pryor, shortly before her sickness, she could not keep her any longer, and that she would have to get out, and that Mrs. Pryor had made arrangements to leave, but that her aunt’s illness had detained her.
This was objected to by plaintiff as irrelevant, and the court sustained the objection. What the purpose was, is not disclosed in the offer; why she could not keep her niece longer is not hinted at. The evidence, possibly, in some view of the case, may have been relevant; but taking the offer as it stands its relevancy is not apparent, and we cannot convict the court below of error in rejecting evidence where the purpose is not disclosed in the offer itself.
Third assignment. The court instructed the jury that al*584though the property was taken from the plaintiff by the administrator in official capacity as representative of the intestate aunt, at the time believing he had a right to do so, yet, if it was proven the plaintiff was the owner, she was entitled to recover its value with interest from the date it was taken. Appellants complain that this was error, and Barr v. Craig, 2 Dall. 151; Irvine v. Hanlin, 10 S. & R. 220, and other cases following them, are cited to show that a voluntary payment by one with full knowledge or the means of knowledge of his right, cannot be recovered back. But this principle has no application to the facts here. The foundation of plaintiff’s right depended on her legal title to specific property; if she made out that title, it was wrongfully taken from her possession, for it is not pretended she disclaimed title to it, or made a gift or sale of it to the administrator ; the most that can be said is, she permitted him to take it, when he demanded it as a right; she was not bound to assert her right by physical resistance ; if it was a gift from her aunt, then he asserted an unlawful demand, and the possession which he took in pursuance of it was unlawful. On her statement, she could have replevied it, but she could also waive the tort, and sue in assumpsit for its value. On the evidence, there were no equities to enforce; the action was at law to determine the single question, who had title to the box, and the answer to that determined the verdict. And she might bring her action against defendant as an individual, or as administrator, at her election. In Michener v. Dale, 23 Pa. 59, a case almost exactly such as this on its facts, and where the suit was against the administrator individually, this court held; “ The property having been converted, and its equivalent only being in the hands of the administrator, the aotion was well brought in assumpsit.”
Fourth 'assignment. This complains of a misstatement of evidence by the court. The learned judge instructed the jury that to warrant a verdict for plaintiff they must find either a' gift inter vivos or a donatio causa mortis, and then adverted to the- essentials of proof to establish either. It is urged the plaintiff did not claim it to be a gift in expectation of death, 'and therefore the suggestion of suoh a finding was error. We do not know what plaintiff claimed except from the statement filed'; that simply avers title and right of possession to the prop*585erty, and that defendants’ intestate deprived her of it, and converted the property into money, and refused to pay it over. Under this statement, she could show title by purchase, inheritance or gift; she offered evidence, which tended to show an absolute gift, and a gift in expectation of death ; what counsel claimed in his argument to the jury to be the nature of her right is no limitation on the court; the evidence was all in and before the jury ; that definition which counsel often forget doubtless occurred to the learned judge, that a court is a place where justice is judicially administered, and as the evidence, in one view of it, tended to prove a donatio causa mortis, he instructed the jury on that subject; this not only was his right, but also was his duty.
The fifth to eleventh assignments of error may be considered together ; they in substance complain that the charge was one sided, with no adequate presentation of defendants’ evidence. We have carefully examined it in the light of the evidence, and are of opinion the complaint is not well founded. The evidence was, to some extent, contradictory, and the court did not go over it in detail on either side, but the law, which in such cases so carefully guards the estates of the dead from the rapacity of the unscrupulous, was most pointedly stated, and the jury was instructed to apply it to the evidence, before- finding as a fact any essential element of plaintiff’s case: on every point they were made to understand the presumptions were with defendants, and the burden of rebutting them was on plaintiff. Although concise, it was a clear and impartial charge, free from error.
Therefore, all the assignments of error are overruled and the judgment is affirmed.