Opinion,
Mr. Justice Green:
We think the first assignment of error is not sustained. The fact as to the name in which the bonds were found to be deposited after the death of Sidney Connell was a fact then existing. It was a relevant fact of which it was proper to give evidence. Nothing more than this particular fact was offered to be proved. The fact that the bonds were found at that time to be deposited in the name of Sidney Connell would be inferential proof, only, that they had been so deposited during the life of Sidney Connell. In Rothrock v. Gallaher, 91 Pa. 108, we decided a very similar question, and held that the testimony was admissible, because it simply tended inferentially to prove that the same fact existed prior to the death, as was found to exist after the death of the deceased person. We reaffirmed this distinction in the case of Foster v. Collner, 107 Pa. 305, and again in Adams v. Edwards, 115 Pa. 211, and as we think it perfectly sound we see no reason to depart from it.
As to the second assignment, it must be observed that the conversation with Johnston, which was offered in evidence, took place after his deposition had been taken. He could not have been asked the question, on the taking of his deposition, whether such a conversation had taken place, because it had not then occurred. It is true that when the offer was made counsel stated it was for the purpose of contradiction, but that was a mistaken view of the true character of the testimony offered. It was not a contradiction, because the witness Johnston had not been asked whether he had ever made the statement attributed to him. But it was his own declaration, tending [31] to impair the effect of his previous testimony, and as such we know of no reason why it was not competent. Of course, if the witness had then been living, he should first have been recalled to the stand, and asked whether he had made the declaration in question. But that was impossible, by reason of his death; and the question is, whether, if a witness who is dead at the trial has declared his own infamy or mistake in giving previous testimony, that fact may be proved to affect his credit, when that previous testimony is offered and admitted on the present trial. In this instance, the declaration of the deceased witness was of the most insignificant consequence. It was to the effect that the witness had made a mistake in his former testimony, but what the mistake was he did not say, and of course no one can know whether it was serious, or trivial, or what it was. We could not reverse for so trifling a cause, even if we thought the declaration was wrongly admitted, which we do not.
The remaining assignments are properly discussed together by counsel for appellants, as they really raise but one question. The learned court below very carefully and with entire correctness left to the jury the question whether there ever was a gift of the bonds in suit to Mrs. Patterson, and he charged them if they found there was no such gift their verdict should be for the defendant. The jury found a verdict for the defendant, and, if there were no other questions submitted to them, the verdict would be conclusively settled against the plaintiff. There was another question of fact submitted to them, however, and, as no special verdict was taken, we cannot tell on which question the finding was based. The case was a very proper one for a special verdict, and it is to be regretted that such a course was not pursued, as we would then know directly how the jury determined the question of a gift. The other question was, supposing that there- was a gift, and the jury so found, whether the plaintiff Mrs. Patterson had by her subsequent conduct estopped herself from setting it up. It was alleged in support of the estoppel that the defendant, who was the executor of Mrs. Connell’s will, had charged himself, or had been charged, upon proceedings on his account, with all of the bonds in suit as a part of the estate of Mrs. Connell; that he had made distribution of them among the [32] parties entitled, by paying them over to the administrator who was appointed to succeed him in the settlement of the estate, (the will having been set aside by an agreement among the heirs who were contesting it;) and that Mrs. Patterson, having full knowledge of all these facts, had participated in the distribution of the estate including these bonds, taking the portion coming to her under the agreement amongst the heirs in which she joined.
We are asked to pass upon the question of estoppel arising upon these facts, and yet, strange to say, not a single one of the various papers, records and documents involved in the question, is printed in the paper-book. The account of the defendant as executor is not printed, nor the account of the administrator who succeeded him, nor any of the receipts given by the parties for their several shares, including the share of Mrs. Patterson, nor the report of the auditor showing the distribution, nor, most important of all, the agreement in writing executed by the heirs including Mrs. Patterson. It appears on the record, in the appendix, that all of these papers were given in evidence, and also the decree of the Orphans’ Court making distribution; yet, neither the decree nor any of the papers is printed, and we are therefore not acquainted with their contents. In these circumstances we can only consider the question as stated by the court in the charge and answer. In the charge the court said:
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Opinion,
Mr. Justice Green:
We think the first assignment of error is not sustained. The fact as to the name in which the bonds were found to be deposited after the death of Sidney Connell was a fact then existing. It was a relevant fact of which it was proper to give evidence. Nothing more than this particular fact was offered to be proved. The fact that the bonds were found at that time to be deposited in the name of Sidney Connell would be inferential proof, only, that they had been so deposited during the life of Sidney Connell. In Rothrock v. Gallaher, 91 Pa. 108, we decided a very similar question, and held that the testimony was admissible, because it simply tended inferentially to prove that the same fact existed prior to the death, as was found to exist after the death of the deceased person. We reaffirmed this distinction in the case of Foster v. Collner, 107 Pa. 305, and again in Adams v. Edwards, 115 Pa. 211, and as we think it perfectly sound we see no reason to depart from it.
As to the second assignment, it must be observed that the conversation with Johnston, which was offered in evidence, took place after his deposition had been taken. He could not have been asked the question, on the taking of his deposition, whether such a conversation had taken place, because it had not then occurred. It is true that when the offer was made counsel stated it was for the purpose of contradiction, but that was a mistaken view of the true character of the testimony offered. It was not a contradiction, because the witness Johnston had not been asked whether he had ever made the statement attributed to him. But it was his own declaration, tending [31] to impair the effect of his previous testimony, and as such we know of no reason why it was not competent. Of course, if the witness had then been living, he should first have been recalled to the stand, and asked whether he had made the declaration in question. But that was impossible, by reason of his death; and the question is, whether, if a witness who is dead at the trial has declared his own infamy or mistake in giving previous testimony, that fact may be proved to affect his credit, when that previous testimony is offered and admitted on the present trial. In this instance, the declaration of the deceased witness was of the most insignificant consequence. It was to the effect that the witness had made a mistake in his former testimony, but what the mistake was he did not say, and of course no one can know whether it was serious, or trivial, or what it was. We could not reverse for so trifling a cause, even if we thought the declaration was wrongly admitted, which we do not.
The remaining assignments are properly discussed together by counsel for appellants, as they really raise but one question. The learned court below very carefully and with entire correctness left to the jury the question whether there ever was a gift of the bonds in suit to Mrs. Patterson, and he charged them if they found there was no such gift their verdict should be for the defendant. The jury found a verdict for the defendant, and, if there were no other questions submitted to them, the verdict would be conclusively settled against the plaintiff. There was another question of fact submitted to them, however, and, as no special verdict was taken, we cannot tell on which question the finding was based. The case was a very proper one for a special verdict, and it is to be regretted that such a course was not pursued, as we would then know directly how the jury determined the question of a gift. The other question was, supposing that there- was a gift, and the jury so found, whether the plaintiff Mrs. Patterson had by her subsequent conduct estopped herself from setting it up. It was alleged in support of the estoppel that the defendant, who was the executor of Mrs. Connell’s will, had charged himself, or had been charged, upon proceedings on his account, with all of the bonds in suit as a part of the estate of Mrs. Connell; that he had made distribution of them among the [32] parties entitled, by paying them over to the administrator who was appointed to succeed him in the settlement of the estate, (the will having been set aside by an agreement among the heirs who were contesting it;) and that Mrs. Patterson, having full knowledge of all these facts, had participated in the distribution of the estate including these bonds, taking the portion coming to her under the agreement amongst the heirs in which she joined.
We are asked to pass upon the question of estoppel arising upon these facts, and yet, strange to say, not a single one of the various papers, records and documents involved in the question, is printed in the paper-book. The account of the defendant as executor is not printed, nor the account of the administrator who succeeded him, nor any of the receipts given by the parties for their several shares, including the share of Mrs. Patterson, nor the report of the auditor showing the distribution, nor, most important of all, the agreement in writing executed by the heirs including Mrs. Patterson. It appears on the record, in the appendix, that all of these papers were given in evidence, and also the decree of the Orphans’ Court making distribution; yet, neither the decree nor any of the papers is printed, and we are therefore not acquainted with their contents. In these circumstances we can only consider the question as stated by the court in the charge and answer. In the charge the court said:
“ But if you determine from the evidence that there was such a gift and delivery of the possession, then it would be your duty to determine from the evidence whether Mrs. Patterson has estopped herself from now claiming the amount of those bonds in this action; and it will be your duty to determine from the evidence whether the claim set up by the defendant as to her acts after the setting aside of the will, beginning, I believe, with the date of this agreement for the setting aside of the will, aud the collection and distribution of the assets of the estate, that she participated in that distribution, has been established or not. If you should find from the evidence that Miss Colestock, or Mrs. Patterson, with a full knowledge that the bonds had been included in the inventory and appraisement, joined with the heirs and other legatees of Sidney Connell in making a distribution or in sharing in the [33] distribution of tbe assets of the estate, including these bonds, she having a full knowledge that they were included in the distribution, and she having received what was allowed as her proportion in this distribution, she would be estopped in this action, and would not now have a right to recover a verdict at your hands for the amount claimed, or any other amount. If, however, she did so without full knowledge; if she did it in ignorance of the fact that the bonds were included in the inventory and appraisement and in the account, first, of Capt. Dushane, and afterwards in the account of Joseph Colestock, and in the various distributions made by the auditor; if in all these matters she was ignorant of the fact that those bonds were included in those distributions and in the accounts, then she would not be bound by her action, and would still have a right to recover a verdict at your hands, provided you find in the first instance that there was a gift of the bonds, and a delivery of possession. If she did these things, as claimed by the defendant, with a full knowledge of the fact that the bonds were included in the inventory and appraisement, in the account of Dushane and the account of Joseph Colestock, and received her proportion of the distribution of the estate, then she would be estopped from claiming anything at your hands, and your verdict would be for the defendant.”
We are bound to assume that there was testimony before the jury upon all the matters of fact thus presented in the charge, and upon that assumption it is perfectly clear to us that there was no error in the charge. If Mrs. Patterson knew that the bonds were all included as a part of the estate of Mrs. Connell, and were fully accounted for by the defendant as her executor, then, when she accepted a distributive share of the estate, including these bonds, she assented and agreed that they were a part of that estate, and hence were the property of Mrs. Connell at the time of her death. If that is so, she accepted the bonds or their proceeds as a part of the assets of the estate which had been in the hands of the defendant as Mrs. Connell’s executor, and by him fully accounted for as such executor. She necessarily assented to the decree of the Orphans’ Court, which distributed the proceeds of the bonds as a part of the estate of Mrs. Connell, and she necessarily agreed, when she accepted a distributive share of those proceeds, that it was [34] the defendant’s right and duty to account for these bonds as a part of the estate of Mrs. Connell. Having done all this, she certainly would not be at liberty to assert, by the present action, that the bonds were no part of the estate of Mrs. Connell, but, on the contrary, were her own private property to which the defendant had no right as executor. In this action, she asks the court to adjudge that the bonds were her own property, after she has assented to a decree of the Orphans’ Court that they were the property of Mrs. Connell, and had accepted a part of the proceeds distinctively because they were such. She certainly cannot do this. It would be a clear fraud upon the defendant to permit the plaintiff to claim from him, and receive a portion of the bonds, as a part of the estate of Mrs. Connell, which it was his legal duty to account for to her as a part of that estate, and then to turn around and claim from him the whole of the bonds as her own. When she asserted, by her claim as a distributee, that she was entitled to a share of the bonds, because they were part of Mrs. Connell’s estate, she thereby precluded herself from subsequently seeking to recover, and asserting that they were her own bonds all the time. The two conflicting claims are at war with each other, and she cannot be heard to assert both in the courts. The court told the jury that, if she was ignorant of the fact that the bonds were included in the inventory and in the distribution, she would not be estopped; but the jury found she was not ignorant, and that is conclusive against her.
Judgment affirmed.