Appeal, No. 198, March T., 1952, from decree of Orphans' Court of Allegheny County, 1949, No. 2535, in Estate of James O. Carr, deceased. Decree reversed.
Edward J. I. Gannon, with him Howard J. Hazlett and Hazlett, Gannon & Walter, for appellant.
William H. Eckert, with him Edward H. Schoyer and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal raised the question whether negotiable securities found after death in decedent's safe deposit box in envelopes inscribed by decedent as the property of claimant were owned by claimant, or whether they were the property of decedent which he intended to transfer to claimant as a gift. The court ruled that the transaction constituted an ineffective gift and
awarded the securities to decedent's estate. This appeal followed.
Appellee complains that appellant has failed to comply with Rule 40 of this Court, in that she has failed to print all of the evidence introduced at the audit. An examination of the voluminous original record discloses that at the audit of the account four separate issues were litigated; the testimony is 482 pages in length, with large bundles of exhibits, etc.; all testimony relating to the present claim has been printed, together with the auditing judge's opinion. The exhibits were not photostated and attached to the printed record in appellant's paper book. There appears to be no controversy relating to such exhibits. Appellee has made no motion to quash and disclaims such desire. We will, therefore, review the case upon the record as presented.
At the audit of the account of the executor, Emma W. Sherwood, a woman over eighty years of age, a resident of the State of New York, claimed specified securities found by the fiduciary, after the death, in decedent's safe deposit box. James O. Carr, the decedent, was a lawyer, a member of the Allegheny County bar; he did not actively engage in the practice of his profession; when he died testate May 23, 1949, his estate as shown by the schedule of distribution amounted to $446,365.84; he was survived by a wife, but no issue.
The auditing judge found: "The securities claimed by Emma W. Sherwood are set forth in the Inventory and Appraisement in a separate schedule. The appraised value of the securities is $12,256.58. They consist of sixteen separate items of which thirteen are coupon bearer bonds and three are certificates for shares of stock. Two of the stock certificates are registered in the ...