Opinion by

This was an action brought by Elizabeth A. Platt, to recover from W. H. Tennison the sum of $1,750. The petition contained two counts. The first charged the indebtedness against the defendant as administrator of the estate of J. D. Tennison, deceased, to Lucy Ten*633nison, widow and heir at law of the decedent, being part of her distributive share of the estate which had been ordered paid to her by the probate court of Johnson county, which indebtedness was alleged to have been assigned to the plaintiff. The second count charged the same indebtedness against the defendant personally. The answer was a general denial) and the plea of full payment to the widow before the assignment. At the close of the evidence, the court required the plaintiff to elect upon which count she would rely for a recovery, and the plaintiff asked for judgment upon the first count of the petition, charging the indebtedness against the defendant as administrator. The defendant then asked the court to give the following instruction:

“ If you find from the evidence that W. H. Tennison, administrator, paid Lucy Tennison the $1,750, and afterwards she repaid said sum to W. H. Tennison, to be returned to her when she was acquitted of the crime with which she was charged, then I charge you W. H. Tennison, and not W. H. Tennison as administrator, would be liable, and you must find for the defendant.”

The court refused the instruction. This is claimed as error. The record of the probate court of Johnson county established the fact that an order of distribution was made on the 23d day of September, 1887, by which the administrator was directed to pay Lucy Tennison the sum of $1,750. W. H. Tennison testified that he gave to Lucy Tennison a cheek for that amount and took her receipt for the same, on the 30th day of September following; that she immediately indorsed and delivered the check to him individually, and he deposited it to his own credit in the bank the same day. Upon the question of the execution of the receipt and the delivery and indorsement of the check, the court instructed the jury as follows:

“The fact that after the execution of the receipt that has been offered in evidence and the transfer of the check for $1,750 from Lucy Tennison to the defendant, that he transferred moneys which he before had held as administrator and *634had credited to his account as administrator—the fact that he transferred those funds to his individual account wouldn’t avoid his liability as administrator. That is, any moneys that were in his hands and were properly due Lucy Tennison as her part of this estate would be due her from the administrator, and she would have a right to recover against him as administrator; and the plaintiff here, under this assignment, would have a right to recover against him as administrator for all those moneys, wherever he might have deposited them in his own name or have them put in his individual account. The only question for you to pass on is, whether or not he held moneys as administrator at the time of the commencement of this suit, in which Lucy Tennison would have been entitled if she had n’t made this assignment under which the plaintiff was entitled as the assignee of LucTennison, in this written article set out in the petition and which has been read in evidence.” •

The pleadings in this case fairly raised the question of payment to Lucy Tennison of said sum of $1,750. The evidence tended to show that she had had delivered to her a check for that amount, which she indorsed and delivered to the defendant below at the same time that she receipted for the amount named. We are of the opinion that this, or a similar instruction, should have been given to the jury.

The defendant in error contends that the making and delivery of a check and the taking a receipt for the sum of $1,750, unexplained, only amounted to prima faoie evidence of payment. Suppose we admit the correctness of this proposition; still the defendant below would have the right to have the question of payment submitted to the jury. The court did not do this. The instruction the court did give virtually took that question from the jury. The question of payment by the defendant as administrator, and repayment by Lucy Tennison to him individually, of the amount in controversy was a question of fact for the jury, and should have been submitted to them under proper instructions. (Stadel v. Stadel, 40 Kas. 646.)

The refusal to give the instruction is such error as-requires a reversal of the judgment.

*635It is recommended that the judgment be reversed, and that a new trial be granted.

By the Court: It is so ordered.