dissenting. — I regret that I am obliged to dissent from the opinion of the majority of the court in this case.
The record shows that the appraiser appointed by the Register of Wills appraised as' the property of Arthur Loeffler certain corporate stocks registered in his name on the books of the R. J. Ederer Company (of Illinois), the R. J. Ederer Thread Company (of Pennsylvania) and the R. J. Ederer Net and Twine Company (of Maryland). The total appraisement was $436,557, and, after the allowance of certain deductions, the tax was assessed at the rate of 2 per cent., the decedent having by his will bequeathed his entire estate to his wife. From this appraisement and assessment of tax, amounting to $8447.20, an appeal was taken by Henrietta Loeffler, the widow, who claimed that the stock, though registered in the name of her husband, was equitably hers, in that he was a trustee for her and was not himself the real owner.
At the hearing of the appeal, the presiding judge held, first, that the issue to be tried was one of ownership of the stock, and that the widow, who claimed it as her own, must submit herself to the jurisdiction of this court; secondly, that her interest being adverse to that of the estate of her husband, she was not a competent witness to prove her claim. In these respects, the rulings of the presiding judge were clearly correct, but on the merits of the controversy, I think he was wrong.
The judge who presided at the hearing of the appeal, having considered the evidence adduced before him, held, in brief, that it was not sufficient to overcome the title of the decedent arising from the written record thereof, in that it was not clear, precise and indubitable, and, accordingly, the appeal was dismissed and the assessment of the tax was confirmed.
It is, of course, well settled that the findings of facts made by the judge of the first instance, in the ordinary case, of conflicting testimony, are entitled to the same weight as the verdict of a jury, even if another judge might have come to a different conclusion upon the same evidence. This rule, from which I have not the slightest intention to depart, is, however, subject to the qualification that the testimony must conform to such a standard or possess such a character as will, according to its subject, justify the findings. Thus, in Gerofsky’s Estate, 25 Dist. R. 472, where the question concerned an alleged delivery by the decedent of a policy of insurance, either as a donatio mortis causa or a gift inter vivos, the auditing judge found, on the weight of the testimony, in favor of the donee. We sustained exceptions to his finding on the ground that the testimony did not conform to the standard of proof required by the decisions of the Supreme Court, in that it was not clear and satisfactory upon every point essential to the title, or, as some of the decisions express it, “clear and precise,” or “clear and convincing.”
So, in the present case, the judge who heard the appeal weighed the evidence, as I have said, in the light of the rule that he who undertakes to overcome a written record must do so by clear, precise and indubitable testimony, whereas, in my opinion, he should have considered the evidence according to *395the doctrine established by the decisions, viz., that where a wife transfers her property to her husband without consideration, a presumption arises of a resulting, or rather a constructive, trust in her favor, and the burden of proof is on the husband, or, in this case, the Commonwealth claiming through him, to show that the transfer was intended to be an absolute gift. It is not necessary that the transfer be tainted with fraud. The trust arises from the confidential relation and the absence of a valuable consideration.
Among the cases in which this general principle has been enforced are Darlington’s Appeal, 86 Pa. 512; Darlington’s Estate, 147 Pa. 624; Corrigan v. Conway, 269 Pa. 373; Matthaei v. Pownall, 235 Pa. 460. Where, indeed, the position of the parties is reversed and the husband procures the title in the name of his wife, the presumption is that he intended a gift to her: Earnest’s Appeal, 106 Pa. 310; but we are dealing here with a transfer from a wife to her husband without consideration.
As soon, therefore, as it appeared, as it did in this case, that the transfer was made by the wife to the husband without consideration, the presumption arose that he took title as her trustee, and the testimony which might be insufficient to fasten the trust on him, if he were a stranger, will strengthen the presumption of a trust in favor of his wife.
Henrietta Ederer had been engaged since the year 1883, in the City of Chicago, in the manufacture at first of hammocks, afterwards of fish nets and netting. The business was small in the beginning, and her original capital, derived from her father, was insignificant, but the enterprise was very successful. Her two brothers became associated with her in the business, Henrietta Ederer being entitled to 3/5ths interest, and in 1899 the partnership was incorporated, and Henrietta Ederer became the majority stockholder. In 1900, shortly after the incorporation, Henrietta Ederer married Arthur Loeffler, who had no property of his own and was then a clerk in the office of the company, serving half-time in a subordinate capacity at a weekly wage of $12 or $15. Mrs. Loeffler had her stock in the company issued in the name of her husband, and did the same with her stock in the branch companies, established in Baltimore and Philadelphia, under the names of R. J. Ederer Net and Twine Company and R. J. Ederer Thread Company, in each of which she owned the majority and controlling interest. All of these stocks continued in the name of Arthur Loeffler until his death, and are the subject of the present assessment.
Now, the testimony of disinterested witnesses shows that when Henrietta Ederer, a woman of substantial means, married Arthur Loeffler, who had nothing, she desired to put him at the head of her company, and at his solicitation transferred her registered ownership of its stock to him in order that his dignity and importance in the company might be enhanced and that he might have the legal right to control her brothers, with whom some friction appears to have arisen.
Arthur Loeffler paid nothing to his wife for these stocks, which constituted practically her entire estate; he never claimed to be the beneficial owner of them; he always said that his object was to protect his wife’s interests; that she was “the boss and her word goes;” that he was her trustee and was not personally interested, and that he was willing to return the stock to her. Shortly before his death, he handed Mrs. Loeffler an envelope containing the certificates, and said, “There is your stock; I don’t want it.” This need not be considered as a reassignment of it, under the Act of May 5, 1911, § 9, P. L. 126 {Uniform Stock Transfer Act), but I consider it as strongly corroborative of the trust relationship of Arthur Loeffler.
*396The judge who heard this appeal attached great importance to the minutes of the directors’ meeting of the R. J. Ederer Company of Jan. 5, 1901, at which Henrietta Loeffler stated that “she had transferred to her husband, Arthur Loeffler, in consideration of $100 to her in hand paid by him, one share of the capital stock of the R. J. Ederer Company, on condition that the said Arthur Loeffler shall be bound, upon the repayment of the said $100, to reconvey the said share to the said Henrietta Loeffler at any time when she may so elect.” And also the minutes of the directors’ meeting of said company on March 2, 1901, according to which Mrs. Loeffler stated that, “in consideration of the payment to her of $1 and for other good and valuable considerations, she had absolutely and unconditionally sold, transferred and assigned to her husband, Arthur Loeffler, all her shares to the capital stock of the R. J. Ederer Company; that is, the one share transferred to him conditionally on Jan. 4, 1901, as well as the 260 shares still remaining to her after the said conditional transfer, and that the right and title to all the shares to the capital stock of said company now stands vested as follows: Arthur E. Ederer, 125 shares; Louis B. Ederer, 124; Arthur Loeffler, 261.”
The judge who heard the appeal, therefore, held that to overcome the record of the directors’ meeting, the evidence must be clear, precise and indubitable, and that which was offered did not measure up to this standard. I cannot see, however, that those recitals in the minutes of the directors’ meeting affect in any wise the trust assumed by Arthur Loeffler. It was merely a formal method of having it appear in the minutes that Arthur Loeffler, as registered owner of the majority of the stock, was in control of the corporation, which was the object of the only two persons who were interested.
The judge who heard the appeal also laid stress on the fact that, when Mrs. Loeffler transferred to her husband the 260 shares of stock, she also released her rights in the one share previously transferred to him conditionally, she having then reserved the right to have it back at any time upon payment of $100. The argument is drawn from this, that if there was a trust, such as is now contended, there was no necessity for her releasing her interest in this one share. But there is no inconsistency arising from this; the object of Mrs. Loeffler was simply to vest the legal title to all of her stock in her husband, and she, therefore, did not wish it to appear on the minutes of the corporation that this one share of stock stood in any different position from the rest. So far as the corporation was concerned, Arthur Loeffler held the legal title; but that is entirely consistent with his trusteeship, for a trustee should hold, and always does hold, the title.
Stress is also laid on the fact that the dividends on these stocks were paid to the decedent, Arthur Loeffler, or passed to his account. But the dividends were naturally paid to the registered owner and were affected by the same trust. It seems to be admitted that Mrs. Loeffler possessed no other property than the stocks in these companies; at any rate, these constituted the great bulk of her estate, and it is a necessary presumption, at least a fair one, that she and her husband used this income for their mutual benefit and support. In fact, as Mr. Loeffler said to a witness, he thought there should be just one pile for both of them. And, finally, the fact that the arrangement, whatever it was, continued for so many years without objection on Mrs. Loeffler’s part does not militate against the theory of a trust, for the same reasons that induced her action in the beginning continued without change until the end.
Suppose that Arthur Loeffler, instead of living amicably with his wife until his death, had deserted her, or claimed to be the beneficial owner of this stock, and she had brought suit against him to recover it, as she might have done: *397Schomaker v. Schomaker, 247 Pa. 444. If, on a bill filed by her, the facts appeared as they have been stated here, a chancellor sitting in equity would not hesitate to decree a retransfer of the stock.
It need only be added that this is not a case where the rights of creditors of the deceased husband are involved. If Arthur Loeffler, on the strength of his ostensible ownership of these stocks, had incurred debts, it might well follow that his widow could not assert her title as against his creditors, Light v. Zeller, No. 2, 144 Pa. 582, and likewise his assignee, without notice, could resist her claim; but these questions need not be considered, for they do not arise.
It is, in my opinion, incorrect to say that the rights of a third party, to wit, the Commonwealth, have intervened. The Commonwealth has no rights unless these stocks belonged to Arthur Loeffler, and that is the very point in dispute. To tax her property as though it were his would be most unjust, and virtually penalize a woman for having entrusted her property to her husband’s care.
I am, therefore, of opinion that the 1st, 2nd, 5th and 13th to 19th exceptions should be sustained and the assessment of tax set aside.
Lamorelle, P. J., concurs in this opinion.