Fink's Estate

Opinion by

Head, J.,

The decree appealed from is in no way out of harmony with the doctrine of Cutler’s Est., 225 Pa. 167. Nor is that case, in principle, at all different from the later case of Gongaware’s Est., 265 Pa. 512. Keeping in mind the question raised by the facts in the former of the two cases cited and those in the case at bar, we find in the opinion of Mr. Justice Stewabt a clear statement, not only of the principle that controlled the decision there rendered, but also a plain definition of the principle that must *271apply when the facts are those found by the orphans’ court in the present case.

In Cutler’s estate the personal property in question had indisputably belonged to the deceased father. His daughter, who was his sole executrix, had received these securities as her father’s agent and receipted for them in that capacity. She omitted these securities from the inventory of the father’s estate filed by her as his executrix and later from her account. Her contention was that the omitted items were her own individual property ; that the money and securities involved had been given her by the testator in his lifetime; and in support of her claim she presented several written and sealed instruments transferring the property to her by way of gift. The deceased therefore plainly did not die in the possession of the personal property in question. At the time of his death that physical possession was in another who claimed it as her own. In holding that the orphans’ court was without jurisdiction to try and determine her title to that personal property, the Supreme Court in effect held that she could not thus be coerced into a surrender of her right to a trial by jury.

But in a case like the one before us, where the deceased was in actual physical possession of personal property at the time of her death, the law relates that possession to the title and ownership of the property, and the burden is upon him who claims that the ownership is in another to support his claim by the preponderance of the evidence. So it was said by Mr. Justice Stewart: “It is a doctrine equally familiar that once the jurisdiction attaches the court has full power to inquire into and determine all questions standing directly in the way of a conversion and distribution of the property, that is, the property of the decedent......if at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his, a mere denial of his ownership unsupported will not oust the court of its jurisdiction, but the court *272may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists.”

Upon abundant evidence the court below found that the several articles, with the value of which the accountant was surcharged, had been undoubtedly in the personal possession of the decedent. For some years before she married she had been a domestic in the family of her future husband and the latter had become indebted to her in a considerable sum for the services she had rendered. This indebtedness was freely recognized and acknowledged and was finally discharged by the husband ' by the purchase of a small farm which was conveyed to the wife. It is in evidence that, to some extent at least, she bought and sold cows on her own account. She sold a right of way through her property and in other ways reasonably accounted for the ownership in her own right of the articles in question. Since the Acts of 1887 and 1893, possession of personal property by a wife raises the same presumption of ownership by her that would exist in other cases. Against all of the evidence offered to support the title in the wife, apart from the legal presumption that would be sufficient, if not overthrown by proof, the husband administrator answered nothing. His learned counsel must rely entirely on the old common law proposition that during coverture a wife could have no possession even of personal property apart from her husband. But the situation that then existed has been entirely changed by the statutes we have referred to until now it must be clear that, notwithstanding the fact a married woman lives with her husband, she may own and possess property of her own and that possession carries with it every incident that would follow the like possession by any other individual.

Upon a review of the whole case, we are satisfied the appellant exhibited no substantial dispute as to the ownership of the property in question and the orphans’ court was correct in its conclusion that it had complete *273jurisdiction to dispose of the entire controversy.. The assignments of error must therefore be dismissed.

Decree affirmed.