Appeal, No. 107, Jan. T., 1964, from decree of Orphans' Court of Lebanon County, No. 46 of 1962, in re estate of Emma L. Ream, deceased. Decree modified and affirmed.
H. Rank Bickel, Jr., for appellant.
L. E. Meyer, with him Meyer, Brubaker & Whitman, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE JONES
Emma Ream (decedent), a Lebanon County resident, died, testate, on February 3, 1961. Approximately one year later, her executor filed his first and final account in the Orphans' Court of Lebanon County. Raymond Ream, a non-relative of decedent,*fn1 excepted to this account claiming that a 1957 Cadillac automobile and $4015 in cash - listed in the account as estate items - were given, as gifts causa mortis, to him by decedent.
To take testimony on these exceptions, the Orphans' Court of Lebanon County appointed an auditor who, after a hearing, concluded that the automobile and the cash belonged to the estate and had not been the subjects of gifts causa mortis to Ream. The court affirmed the auditor's conclusion and dismissed Ream's exceptions. From that decree Ream appeals.
It requires no citation of authority that to establish a gift causa mortis it must be proved that, at the time of the alleged gift, the decedent then intended to make a gift, that decedent apprehended death, that the res of the intended gift was either actually or constructively delivered, and that death had actually occurred. It is equally well settled that (a) the burden is upon the gift-claimant to prove, by "clear, direct, precise and convincing" evidence, the requisite elements of a gift causa mortis and (b) that whether the evidence as to the gift satisfies the required standard of proof is a question of law for the court (Sivak Estate, 409 Pa. 261, 265, 266, 185 A.2d 778).
The court below was of the opinion that Ream had failed to sustain his burden of proof as to both alleged gifts, the evidence being "equivocal". Our inquiry is whether the evidence on this record measures up to the standard necessary to prove gifts causa mortis of the automobile and/or the cash or both.
Our review of the record reveals that, if the evidence does indicate that gifts of the automobile and/or cash or both were made, the requirement that at that time decedent must have been under apprehension of death has been met. In this connection this Court has stated in Titusville Trust Co. v. Johnson, 375 Pa. 493, 498, 100 A.2d 93: "... it is not necessary that the donor who is sick or ill or injured expressly say that he knows or believes he is dying - that may be inferred from the attendant circumstances. It will suffice if at the time the gift was made, the donor believed he was going to die, that he was likely to die soon; and death did actually ensue within a reasonable time thereafter. The question depends primarily upon the state of the donor's mind. In passing upon this question all the attendant circumstances should be considered, including the nature and extent of his sickness, illness or injuries, his physical condition, his conduct, and anything that was said to and by him." Taking into consideration the attendant circumstances herein presented, we believe that decedent did apprehend death sufficiently to satisfy this requirement in proof of a gift causa mortis. Such fact and the fact of decedent's death satisfy two of the necessary requisites to establish a gift causa mortis.
Did the decedent intend then to make a gift of the automobile and the cash and, if so, did she effectively make a delivery thereof to Ream? The resolution of both questions depends upon the testimony of record and ...