Opinion
December 30, 1908.
William H. Hamilton [ Norman C. Conklin and Arnold Davidson with him on the brief], for the appellants.
Charles W. Church, Jr., for the respondent.
The appellants excepted to the account of the executrix, the respondent, on the ground that she had omitted therefrom a certificate of 100 shares of stock of the Chesapeake Ohio Railroad Company. The burden of proof was on the exceptants to show that the deceased testatrix owned the said certificate at her death. They proved that the testatrix's husband owned the said shares, and left the same to her by will, with certificates of shares in three other companies; that 23 days before her death she had the said certificates of all of the said shares changed to new certificates in her own name from that of her deceased husband's; that some time during the said 23 days (the day not being ascertainable) she signed the blank assignments on the back of the said new certificates, the said executrix signing as the subscribing witness thereto; that the deceased kept a box in a safe deposit warehouse, to which the said executrix had access; that the day after the death of the testatrix the said executrix went to it; that three days thereafter she delivered all of the said certificates to a firm of brokers for sale and transfer on the said blank indorsements; that the transfers were stopped by the companies on discovery by them that the testatrix was dead; that up to that time the said executrix had taken no steps to probate the will, although she knew of it; that thereafter she caused the will to be probated and qualified as executrix; that in her account she charged herself with all of the said shares except those of the said Chesapeake Ohio Railroad Company. All of the certificates were produced in court by counsel for the executrix. Ownership in the testatrix being proved, the usual presumption of the continuance thereof existed, and was strengthened, if that could be, or were necessary, by the said conduct of the executrix. She put in no evidence. A gift to her by the testatrix is not to be presumed, nor a sale. On the contrary, the presumption was of a continuance of ownership by the testatrix, as already stated. Mere possession of a non-negotiable instrument does not carry a presumption of ownership in the possessor ( Cuyler v. Wallace, 183 N.Y. 291; Matter of Bolin, 136 id. 177). The refusal of the Surrogate to find that the testatrix owned the said shares at the time of her death was error.
The decree should be modified accordingly.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Decree of the Surrogate's Court of Kings county modified so as to decree that the testatrix owned the shares of stock at the time of her death, and as so modified affirmed, with costs to the appellants.