
    In the Matter of the Estate of Sarah J. Mapes, Deceased.
    
      (Surrogate's Court, Orange County
    
    
      Filed April 16, 1890.)
    
    Executobs and administrators — Discovery—Title to personal property.
    Decedent and her brother each receipted to their father’s executors for one- half of certain stock belonging to his estate. After her death her executors met her brother, and he produced a box, and took therefrom two bonds, one of which he gave to them, and the other securities, including the stock, were replaced in the box, and it was stated that it was doubtful if the stock was worth anything. On the brother’s death the stock was found among his effects. Held, that, under the circumstances, his possession of the stock was evidence of his ownership thereof, and that his administrator was entitled to it.
    Proceeding for discovery of property.
    The facts sufficiently appear in opinion.
    
      B. B. Champion, for executors of Sarah J. Mapes, deceased; EL D. Milk, for administrator of John S. Mapes, deceased.
   Coleman, S.

This is a proceeding taken under § 2706 of the Code of Civil Procedure to discover property withheld, etc.

George H. Mapes, the person cited, who is the administrator óf John S. Mapes, deceased, filed a verified" answer in which he admits having possession of the property mentioned, and denies the petitioners’ claim thereto; however expressly submitting, for decision by the surrogate, the question in dispute between the two estates to which estate the property in question belongs.

The property consists of two certificates for twenty-three shares of the capital stock of the Louisville, Hew Albany & Chicago Railroad Company.

These identical certificates belonged tQ the estate of George Mapes, deceased, the father of John S. Mapes and Sarah J. Mapes. In September, 1884, John S. and Sarah J. each gave a receipt to the executors of George for one-half of the stock. Sarah died July 24th, 1888. Shortly after her death John and the two executors of Sarah came to the law office of B. R. Champion in Gos-hen, when, as appears from the testimony of Mr. Champion, John produced a tin box, from which was taken two one-thousand dollar ($1,000) railroad bonds, one of which was conceded to belong to Sarah’s estate and it was then delivered to her executors. There was also in the box, from which was taken the two certificates in question, some silver certificates and other papers in regard to which Mr. Champion then said: “ Here is that same stock again we had in the settlement of the estate of John's father. I don’t know that it is worth anything. You may as well leave it in the box.” And all the p'apers found in the box, except the bond given to Sarah’s executors, were left in it and the box was taken away by John and at his death the two certificates in question were found among his effects.

There is no proof that the certificates were ever in Sarah’s actual possession. They are supposed to have been in the box produced by John on the occasion referred to, of which she had possession until her death, but there is no proof that they were.

The possession of the certificates by John is evidence of his ownership of the stock, which can only be overcome by evidence that the presumption is not true. This I do not think has been done. It is not necessary for John’s administrator to prove the way in which the title to the stock passed from Sarah or her executors to John. A written transfer of Sarah’s interest is not necessary, and the absence of such a transfer is* accounted for by the fact that the stock was not considered of sufficient value to have this done; indeed the stock had never been transferred to them by the executors of their father.

■ We may think that it is improbable that Sarah gave or sold her stock to John, and so too we can imagine that she did do so, but these speculations do not prove anything either way. We must, therefore, fall back on the legal inferences which arise from the facts proven, which while they may not bring conviction, will, however, effect a disposition of the question on settled legal principles.

I therefore conclude from the evidence before me, that the stock belonged to John S. Mapes at his death, and that his administrator is entitled to the possession of the certificates. 
      
      Upon the hearing in this matter the petitioners, who are the executors of Sarah J. Mapes, deceased, were sworn as witnesses in their own behalf for the purpose of testifying to conversations had by them with John Mapes after their ap"ointment as such executors, in regard to the property in controversy. This testimony was objected to on behalf of John’s executors as being inadmissable under § 849 of the Code of Civil Procedure, and the objection was sustained and the evidence excluded on the authority of Poucher v. Scott, 33 Hun, 330, affirmed 98 N. Y., 433, at page 435.
     