(dissenting). I have a different view, of the facts and so come to a different conclusion of law.
*528The decedent and Joseph (Guiseppe) Perrone were manned in 1932 at the City Hall in Newark. The wife died, on December 31, 1947, at a hospital where she had gone for an operation. At her death she owned a bank account in the Bank of Nutley, Book 12157, in the name of Santa Crocco, in the amount of $9,313.82 and another account in the same bank and in the same name under the number 8333 in the amount of $1,773.77. The inference is that “Crocco” was the woman’s name before marriage and that the bank accounts held over from that period. She also had an account in the First National Bank of Belleville in the name of Santa Piro in the amount of $4,320.48, and the inference is that the moneys so deposited came to her, in one way or another, after she was Mrs. Perrone. She held a few securities of small value and an undivided interest in a real estate property consisting of “a two family house and a small store.” All of those items were Mrs. Perrone’s separate assets and were property reported. There is no dispute concerning them. The only controversy is about the special deposit mentioned in the next paragraph.
On May 22, 1943, an account numbered 9572 was opened by Joseph Perrone in the savings department of the Bank of Nutley in the names “Sarah Perrone or Guiseppe Perrone” with a deposit of $204. That deposit was supplemented by others, to wit: October 7, 1943, $315.36; November 6, 1943, $192; February 14, 1944, $280; December 5, 1947, $175; all of them made by Guiseppe Perrone. There were no withdrawals until October 29, 1948, when the entire deposit, with interest, $1,213.06, was taken out bjr Guiseppe Perrone. When the original deposit was made the card was signed “Guiseppe Perrone” by Perrone’s own signature and “Sarah Perrone” by her mark. The fair inference is that Guiseppe Perrone could not write other than to sign his name, because the deposit slips were all made out by a bank clerk, and Perrone, when asked bjr counsel for the exceptants, “Is any one of them (the deposit slips) in your handwriting?” answered, “No, because I can’t.” Further inferences are that Sarah *529Perrone could not even write her name and that the husband gnd wife were simple Italian people, industrious, thrifty and unlettered.
Perrone testified that his wife was sick for from six to ten years before her death and that for the last two years of her life she was unable to do any work at all; that when he married her she ran a small candy store; that he worked for the Federal Leather Company but left that employment in 1943 because of his wife’s illness; that he took over the store, with greatly depleted stock, reconstructed the fixtures (shelving, etc.), made purchases and sales in his own name and altogether operated the business and owned it; that the money made in the store was not enough to meet their expenses and therefore he did outside work; that for a couple of years he worked in this way for the Nutley Park and earned about $38 or $40 per week; that he did garden and lawn work for various people; that he worked “night and day”; and that the deposits in the bank were all the fruits of his own labor.
The dates of the deposits are significant. With the exception of the December 5, 1947, deposit, they were of an earlier period when things were better and when, it may be assumed, the income had not been seriously reduced, and the outgo increased, by the incidents of an ailing wife and her inability to team up as theretofore. It is quite possible that the conjunction of the little candy business, the ownership and operation of which had been taken over by Perrone in 1943, and Perrone’s outside employments were sufficient to produce that volume of savings. I have no difficulty in believing that Perrone, having that little accumulation, originated and supplemented the deposit in such a manner as, in his thought, would cause it to go immediately to his wife if he should die first; and he testifies that such was his act and his purpose.
It is understandable that there should be minor discrepancies and uncertainties in Perrone’s testimony. An effort was being made to take from this ignorant laboring man, in favor of collateral relatives of his wife, a nest egg that he, whether rightly or wrongly, believed was his; and he. was being rigidly *530examined in the unfamiliar and awesome surroundings of a court room. Counsel for exceptants demanded and was accorded the privilege of examining him in chief by the method of cross-examination—an examination upon which the witness entered without knowledge of what he would be asked. Eor illustration, while on the witness stand December 6, 1949, he was suddenly pressed, without earlier notice that the information was being sought, to state where he got checks for $47.86, $36 and $41.50 which appeared on the deposit slip of the October 7, 1943, deposit. The examination continued:— “Q. Did the checks come from the store ? Answer yes or no.” To which the answer was, “I don’t know; I don’t remember; it’s so long ago.” That is tjqfical of the way some of the examination went, and it is not indicative of evasion. One check in the amount of $100, listed on the slip of the deposit of December 5, 1947, he was able to recall. He had taken care of the lawn of Mr. Gilmore of Nutley all summer, and Mr. Gilmore, when he returned from an extended absence, gave Perrone a check for one hundred dollars, and that was the check. This was a specific explanation, with name, amount and date. There was no attempt at contradiction. Here, surely, is an item of $100 positively proved to have been Perrone’s earnings. Perrone, although the personal representative of the deceased, was not permitted to tell, on being questioned by his attorney, of the arrangement he had with his wife about the bank account. The objection was made and sustained that the proof would be a conversation with the deceased. Whether or not the stated reason was adequate need not now be discussed as the point is not raised or argued. It is, however, proper to note that the absence of a more definite statement of the transaction between Perrone and his wife by which the disputed account was opened is due, not to withholding by Perrone, but to objection by exceptants’ counsel.
Outstanding features of Perrone’s testimony relate to his wife’s illness; the length and extent of it; her increasing and, finally, total incapacity for work; his taking over the *531store and operating it; his outside employments and labors. If there were any semblance of untruth in those major and notorious facts, disproof would be easy, particularly by the exceptants who are relatives of the wife. There is not a word of testimony in contradiction of anything that the husband testified to. Granting the truth of that testimony, sources of income which are easily explainable opened up for the husband. There is no exception to.the omission from the inventory of merchandise or good will of the candy business, which seems to be a tacit concession that the ownership was truly in Perrone.
The proof will not sustain a finding that the estate tax report stated the candy store business or any part of it as an asset of the estate of Sarah Perrone. The sheet referred to is entitled “Schedule ‘A’—Real Property.” The column heading is: “Decedent died possessed of an interest in the following described real property located in the State of New Jersey.” The entry names the block number, the street number and the deed books of recording, it gives the assessed value of the property as $2,600, and the value of the equity (an undivided one-half interest) as $1,300, and refers to the property by this explanatory description: “Deceased was possessed of an undivided one-half interest consisting of a two family house and a small store. House is about 100 years old, having been moved to present location about 1911.” There is nothing in the exhibit to suggest that the real estate premises thus noted and described were meant to include the business conducted in the “small store.” It would have been wholly improper to include an item of personalty on that sheet; and Perrone’s testimony that he owned the business clearly, as he states, relates to merchandise and contents and not at all to the store building.
It is difficult to understand the effort of counsel for respondents to indicate an inconsistency in Perrone’s testimony on that point, as it is also difficult to understand his argument that Perrone, at the time of withdrawing the deposit now in eontrovers3r, represented that his wife was living. There is *532enough in the record to make that contention plausible on its face and also enough, on study, to condemn it as without support. The sole authority for the assertion is the check of withdrawal, an exhibit in the record. That check contained a printed clause:. “I hereby certify that the joint depositor with me on the account is living—deceased—at the time of this withdrawal.” The word “deceased” is stricken. And that, so the argument is, constituted the misrepresentation that the wife was then living. The fact which absolutely nullifies the contention and proves that the striking of.the word “deceased” instead of the word “living” was somebody’s error—probably that of the bank clerk who prepared the paper for Perrone’s labored signature—is that one of the counsel who sign the brief now before us for respondents brought out, at the trial, by the testimony of both Perrone and the bank officer, that when Perrone presented the check for withdrawal he brought with him and left with the bank the inheritance tax waiver from the State of New Jersey, which waiver was produced from the bank files at the trial by the bank officer and was, on motion of counsel for the exceptants, admitted in evidence as Exhibit E4. It is beyond comprehension that Perrone should present the bank with a formal instrument from the State authenticating the release of the account from the claim of the State for inheritance taxes of his dead wife and at the same time represent that his wife was living.
As to the matter of the two mortgages which stood in the names of husband and wife the proceeds from which, as appears by interchange of counsel before the same judge in a disconnected proceeding, Perrone collected after the wife’s death and endorsed over to his own use. The mortgages, we learn from that source, were taken by husband and wife as purchase-money mortgages on the sale of real estate properties which the two had owned by the entirety. Perrone was of the belief that since the ownership of the mortgages was in both names the right of survivorship adhered to them in the same manner as it had adhered to the propertjr titles. There has been confusion in the minds of many persons, even of *533lawyers and of judges, as to when an ownership by husband and wife, whether of land, chattels or intangibles, has the attribute of survivorship. It is not strange that Perrone should labor under a misapprehension on the same subject. While the irregularity was called to his attention, he readily admitted the transaction and agreed to make restitution on being told that he ought to do so. Litigation on that matter seems to have been quite unnecessary, and I fail to see therein any indication of corruption. Also, in justice to Perrone, it should be noted that apparently he was not present when counsel were discussing the mortgage situation with the court, and that there was no reason for him to be present. The suit about the mortgages had been settled and the conference was for the purpose of talking about allowances to counsel in that suit. True, under proper circumstances admissions by counsel may be taken as admissions against the client; but Perrone’s counsel was here talking freely without any purpose or thought of binding his client by his utterances. How far statements thus made, and particularly how far statements by opposing counsel thus made, should, in the decision of another litigation, be held in derogation of the character and honesty of an absent client is, at the least, questionable.
The burden of proof in matters of charge is upon an ex-ceptant. But, regardless of where the burden lies, I am persuaded by the testimony that the money which went into the account in question was the property of Joseph Perrone, and, upon that conclusion of fact, that the item was not a matter of charge against the executors and was properly omitted from the inventory.
For affirmance—Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling and Ackerson—5.
For reversal—Justices Case and Wacpteneeld—2.