The only question we deem it important to consider, is whether or not plaintiff's testatrix had before her death divested herself of the right to claim the money involved in this controversy. If she had, it is an answer to this action, and the other questions discussed upon the argument before us become unimportant.
On the 27th day of October, 1871, by the consent of the testatrix, the insurance money was paid to her father, defendant's testator. He received it, and upon his account books credited it to the private account of the testatrix, and such credit remained until July 31, 1872. About the first day of that month the testatrix told her father that she intended the insurance money should go to pay the indebtedness of her brother Edward. After that on the thirty-first day of the month, her father caused the amount of the insurance money to be transferred, from her account on his books, to the account of Edward upon the same books. We may infer that this was done by charging the same in her account, and crediting it in the account of Edward, who was then indebted to his father in a greater sum. After this was done her account showed her to be indebted to her father in the sum of $48.94. She was furnished with this account *Page 494 showing this balance; and on the 14th day of September, 1872, she called at her father's office to settle her private account with him, and expressed to his book-keeper a desire to pay such balance. He asked her if the account was correct, and she said it was so far as she had examined it. The book-keeper then referred to the insurance money, and stated that it had been transferred by instruction of her father, with her consent, as he understood it, to the account of her brother Edward, and she replied that "that was in accordance with her wishes." She paid the balance and the book-keeper gave her a receipt.
We think the legal effect of these transactions was to divest her of any claim against her father for or on account of this money. If she had simply promised orally to pay her brother's indebtedness to her father, it would have been without consideration, and void under the statute of frauds. If she had promised that her father could apply the money in his hands upon his debt against her brother, she could for the same reason have revoked the promise at any time before the application was effectually made. But she had the right to pay her brother's indebtedness, and if she had taken the money from her father and then paid it to him to apply upon such indebtedness, she could not have reclaimed it. If the transaction had taken that form, the entries upon the account books would have been substantially the same. Theoretically the money was paid to her, and then charged to her, and then paid by her to her father and credited to her brother. That is the legal effect of the transaction. The money being in his hands, the transaction could not well take any other form. It was charged to her account, and that was balanced and settled, and it was credited to her brother, and all this she sanctioned, and therefore may be treated as having caused to be done. After this was done, the intention of the parties was fully executed; nothing more remained to be done, and she could not revoke the appropriation of her money to pay her brother's debt. The fact that Edward was dead does not affect this result. Whether he died solvent or insolvent *Page 495 (and which we do not know), the appropriation went to the benefit of his estate.
This was not a gift of her money to her father, and was not intended to be. And hence the law as to gifts inter vivos, has no bearing upon this case. It was an effectual appropriation of her money to pay her brother's debt, and as such must be upheld.
The judgment must be affirmed, with costs.
All concur, except ANDREWS and HAND, JJ., not voting.
Judgment affirmed.