Jones' Adm'r v. Moore

102 Ky. 591 | Ky. Ct. App. | 1898

CHIEF JUSTICE LEWIS

delivered the opinion op tiie oourt.

Appellee, Frank Moore, an. infant, suing by bis father ■-.land; next friend, brought this action against S. K. Mills, . administrator of R. A. Jones, to recover a book of accounts alleged to have been given to him by R. A. Jones, who. was ¡his rancie, in consideration of love and affection and services rendered, and also the proceeds of accounts collected by Mills, part before the death of R. A. Jones and part ■ after his death, as his administrator. 'The evidence conclusively shows that -the gift was made in consideration of love and affection, and we think it satisfactorily appears that the gift was completed by delivery of possession and -acceptance by the donee. Appellant was, therefore, not -prejudiced by the assumption of fact by the court in am instruction given, that the gift was made and completed. But if the court erred at all in that instruction it was in the assumption, to the prejudice of appellee, that such gift was' made in contemplation of the death of the donor, for, in our opinion, the evidence shows it was instead of a gift inter vivos. However, treating it as a gift causa, mortis, as the court seems to have done, the question was fully submitted to the jury, whether the donor subsequently revoked the gift and upon that issue the jury, having evidence to support the verdict, found in favor of appellee, «and we have no right to disturb that verdict'.

The position of counsel that an account or book of accounts can not be the subject of transfer- as a gift is untenable. For while a mere account or even a book of accounts may not be per se evidence of indebtedness by the person against whom they are drawn, there may exist a property right of an equitable character enforcible against the debtor upon proof of their correctness, and .such property right is subject to transfer either in writing or by parol -and either as a gift or a contract.

Judgment affirmed.