258 Mo. 139 | Mo. | 1914
This is a suit in equity for an accounting brought in the circuit court of Pettis county by the administrator of the estate of Sarah Kemp, deceased, against George W. Kemp, her son. On a hearing a judgment was rendered in favor of the defendant, from which the plaintiff appeals.
That upon the final settlement of said estate by defendant as such administrator, there was turned over to him as agent for his mother, the sum of $6667.42, to be held and managed by him for her use and benefit.
That Sarah Kemp owned a large farm of six hundred and twenty-nine acres in Pettis county, and that defendant as her agent controlled same, and received the rents therefor; that the rental value of same was about $900 per year, and that defendant received an average of this sum per year for a period of twenty years consecutively, beginning with the year 1887 and ending with the year 1907, making a total of $18,000 thus received by defendant.
That for a period of sixteen years prior to her death Sarah Kemp owned, in the town of Lamonte, a' house, livery barn and a lot of ground, of the rental value of $8>per month, or $96 per year, and that defendant has received for her the rents on said property for said period in the total sum of $1536.
That said Sarah Kemp was old and required but little for her support and maintenance, the necessary amount of which plaintiff has not been able to ascertain, a matter peculiarly within the knowledge of the defendant.
That plaintiff has demanded of defendant a statement of his accounts showing the total amount of money received by him for his said mother and the amounts paid out on her account, and the items thereof, but that the defendant has failed and refused to render said account to plaintiff or to pay anything on account thereof. Wherefore the plaintiff prays for an accounting between plaintiff and defendant, and for judgment, etc.
Defendant for his answer admits the death of James Kemp, prior to 1887; that he left a will, and. a large amount of property; that at the time of the final settlement of the estate this defendant was the administrator and made such settlement, but denies that there was then found to be due Sarah Kemp the sum of $6667.42, or any other sum, and denies that on said settlement said sum was paid over to him. He admits that his mother was old in 1887, she having been born in 1813, but denies that she was feeble or remained so until her death in 1908, but on the contrary that she was a woman of strength and activity, in full possession of her mental faculties until her last illness. That his mother lived with him, as a member of his family, from 1892 until her death, but denies that she constituted him her agent to conduct and manage her business, Or gave him sole control thereof. But he admits that she reposed entire confidence in him and that their relations were confidential; but he denies that any agency, trusteeship or other fiduciary rela
That in 1882 said James Kemp, the husband of Sarah Kemp, died, and she was left alone on the farm, and the defendant as her son from a sense of duty and affection undertook the management of her affairs ; that she had only one other child, a Mrs. Hendrix, whose husband was then living, and that Mrs. Hendrix would not or could not live with her mother, and that the defendant felt in duty bound to assist his mother in .running the farm and managing her property; that she remained on the farm until 1889 or 1890; that defendant then sold his own farm and moved into the town of Lamonte, and finding it inconvenient to go to her home as often as he was required to do in his care for her, it was agreed that she would move into town and live with him. That with money furnished him by his mother he managed the farm, paid the taxes, made the repairs and other expenses, with the income derived therefrom, and that he did this purely as a gratuitous agent under the direction and supervision of his mother. That although she was old and occasionally ill, she retained her mental faculties unimpaired, and was at all times competent to manage and direct her business affairs. That whatever defendant did in the renting of the farm or in the use, investment or expenditure of money belonging to his mother was done with her knowledge and under her direction. That no books of account were ever kept between them, and all matters were settled-at the time they occurred. That all moneys handled, received or expended were in accordance with his mother’s as
That they lived as mother and son, and as one family, from the time she began to live with him, until her death. That he received and used her money as common property for common use, under her direction, and as she deemed proper, and that no cause of action exists in plaintiff to recover same or any part thereof. Defendant admits the ownership of a farm by his mother, but avers that there was only about three hundred and twenty acres of tillable land thereon, the greater part of the tract being timber, unfenced and not cultivated, and from which no income was derived. He denies that the rental value of said land was $900, or that he or his mother received an average of $900 a year therefor. He admits that she owned a dwelling house and livery barn in the town of Lamonte, and avers that he bought it under her direction with the sum of' $1600 she gave him; that through error the title was taken in his name, but he has disclaimed title thereto adverse to his mother; that he denies the rental value of said property was $1536, or that he or his mother ever received any such sum therefor.
He denies that during the years alleged by plaintiff, he received as agent or otherwise, for his mother, cash and rents amounting to $25^,203.42, and that whatever amount of money he received was in the manner and under the circumstances and agreements heretofore stated; he admits that his mother was old but denies that she required little for her support; that he paid out for necessary expenses and repairs on her property the sum of $150 a year, during the period aforesaid, and paid taxes thereon during the same period, averaging $125 a year; that he built a barn and made other improvements under his mother’s direction, in addition to the repairs mentioned, at a cost of $300. That the care, support and maintenance of
Plaintiff for his reply denies specifically each of the allegations made in defendant’s answer, and avers that defendant applied for letters of administration on his mother’s estate, and that the probate court refused to appoint him on the ground that he was indebted to said estate, but appointed the plaintiff instead with a view of collecting from defendant the rents due the estate so collected by him; that plaintiff has called upon defendant for a statement of rents and other matters of his indebtedness to the estate of Sarah Kemp, and that defendant admitted he had been collecting rents for a great many years, and that he was indebted to the estate for rent so collected, but stated that he had kept no books of account, and did not know the amount of his indebtedness, but knew that it was a large sum, and that he had no money with which to pay it, and no means of paying it, and did not know how he could ascertain the amount of the indebtedness; that plaintiff asked defendant to prepare a statement of account, and that defendant agreed to do so with a view to attempting to arrive at the real amount due; that defendant deferred making such statement from time to time, and never did furnish same; that in none of the conversations had by the plaintiff with the defendant did the latter deny his liability to the estate or that he had acted as his mother’s agent in collecting rent, but admitted at all times, that he was the agent of his mother in the collection of rents, and that he owed her estate for same;
That in bringing this suit plaintiff relied upon the statements of the defendant that he had collected the rents for a long period of years, and that he owed his mother’s estate for same, less the reasonable expenses incurred in keeping said farm in repair, in paying the taxes and for the support of his mother, and that no defense was claimed by defendant prior to this suit other than said deductions from money collected by him for purposes aforesaid, and in bringing this suit plaintiff relied upon the statements of defendant that he owed his mother for rents collected as aforesaid.
Plaintiff says he brought this suit because of defendant’s delay in furnishing him with a statement of his account and of defendant’s inability to arrive at the amount due otherwise than by suit; that defendant is estopped and precluded from now making the defense that he is not liable for this rent, and from pleading the defense set forth in his answer, and it would be inequitable and unjust to permit him now to assert same.
By her first marriage, Mrs. Kemp had one child, a daughter, referred to herein as Mrs. Hendrix; by her 'second marriage she had a son, George W. Kemp, the defendant; by her third marriage to James Kemp, of the same family name as her second husband, she left no bodily heirs surviving her. This will suffice to render intelligible necessary subsequent references to these parties.
Sarah Kemp died at the age of ninety-five years, at “the residence of George W. Kemp, the defendant, at the town of Lamonte, in April, 1908. A few days thereafter the son went to Sedalia, the county seat, for the purpose of administering on his mother’s estate. Preparatory thereto he consulted a lawyer, Mr. Geo. W. Barnett, who had represented him- as counsel in litigated cases, and had been his legal adviser in other business matters for many years. They went to the office of the probate judge, who informed them that objections had been made to the appointment of defendant as administrator, and no further steps were taken at this time. A short time thereafter Mr. John D. Bohling, a lawyer of Sedalia, representing Mrs. Hendrix, the sister of the defendant, called at the office of Mr. Barnett and informed him that as counsel for Mrs. Hendrix he would object to the appointment of defendant as administrator because the latter was indebted to the estate on various accounts. When, therefore, defendant next came to Sedalia, Mr. Barnett again accompanied him to the probate judge’s office for the purpose of commencing the administration. Mr. Bohling appeared as attorney for Mrs. Hendrix and objected to defendant’s appointment on
It is not inappropriate in an equitable proceeding where all the facts are reviewed by the appellate court, that testimony explanatory of the circumstances under which the suit was brought should be somewhat minutely stated. This is best done in the language of Mr. Barnett, who, on the witness stand, testified as follows : “It was not stated that I was appointed administrator for the mere purpose of suing Mr. Kemp, but they wanted somebody who could get this rent by an amicable suit, if necessary. I was notified by you gentlemen — I refer to you gentlemen representing the •Hendrix side of the controversy — that I must proceed to collect what Mr. Kemp owed. I at once started to work to try to get it settled at that time. I was not contemplating a suit right away. I asked Mr. Kemp to come over to my office to go over that matter and he did. Mr. Kemp is hard of hearing, and I talked loud to him. I had been his attorney in past years— not in many suits, but he had a suit with Mr. Fleming, and Yeater was on the other side, but I had never been his attorney in these matters here that involved his relations with his mother’s estate, so far as collecting the rent, and if I had ever known there was such a question I had forgotten it and did not know it until you gentlemen called my attention to it. I said to Mr, Kemp, ‘Now, I am not your attorney now; I have not rendered you any services; I went over there to render you some, but the court took an action that severed my relations as attorney, and there is no charge for what I have done, and I want to say now that whatever you say to me is not as your attorney. You will have to hire an attorney, that is, if you want an attorney, you will have to hire one, but I am against you instead of for you.’ ” After this admonition Mr, Barnett
On cross-examination Mr. Barnett stated that “he first got acquainted with Mr. Kemp when he was employed by the latter to represent him in a cause which was in litigation for a number of years. From that time on he was intimately acquainted with him; that he had advised him about other matters; that his relations with Mr. Kemp embraced a period of a great many years; that he was, during this time, an intimate friend of Kemp, and continued so; that he had read an account of the death of Sarah Kemp; the mother of the defendant, whom he had met at the latter’s home, and really expected the latter to come down”'— evidently to confer with him concerning an administration of the estate.
George W. Kemp’s testimony as to his statements made to Mr. Barnett are substantially as follows: “After he [Barnett] was appointed administrator he and the judge told me I would have to render an account, make a statement of the rents, of the rents I had collected, the money I had paid out and things of that kind, and I told him I hadn’t kept any books and I didn’t know how I could make it. Mr. Barnett afterwards told me — I don’t recollect
The testimony of Mrs. Hendrix (sister of defendant) relative to what the latter said as to his administration of the estate of James Kemp and his management of his mother’s business, is appropriate in this connection. Tt is in substance as follows i “I had been down town and I stopped at his store and told him I would like to have a little talk with him. I asked him what became of the money he had on hand when he settled up the estate of James Kemp. He said it was all on record down here. He never told me anything, only what I asked him. He never told me much about it one way or the other. I told him I knew he wasn’t very stout and I wasn’t able to do anything myself, and I thought he was coming down
The substance of the relevant testimony of James C. Hendrix, son of Mrs. Hendrix and a nephew of the defendant, is to the effect that the defendant admitted to him that he owed the estate a big lot of money and that that was about all the conversation that witness had with the defendant.
The testimony of Mrs. Minnie Andrews, a granddaughter of Mrs. Plendrix, was as follows.: “I was present when the conversation occurred between Mrs. Hendrix and Mr. Kemp. We had been up town and came by the store, and grandma said to Uncle George she wanted to have a talk with him about the estate, that she had never known how things were
In connection with this testimony the fact is pertinent that the final settlement'of the defendant as administrator of the estate of James Kemp introduced in evidence discloses no indebtedness on the part of the defendant to said estate.
The witnesses whose testimony is above set forth, were all, except the defendant, introduced by the plaintiff. The nature of the business relation sustained by the defendant towards his mother must be deduced from this testimony, as that of other witnesses, except as to fragmentary facts and circumstances, is silent in regard thereto. The general facts are that the stepfather, James, Kemp, whose estate is the core of this controversy, died in 1882, and his wife, Sarah Kemp, remained on the farm and continued to conduct same
Much of the voluminous record in this case has been taken up- with the testimony of witnesses as to the renting of the farm, the income from such réntal in cash or from crops raised thereon, and the expenditures made by defendant in connection with the property. Under the view we have taken of this case, the introduction and preservation in the record of this testimony was unnecessary; it was probably introduced upon the theory if the trial court required an account! ing of the defendant that the duty devolved on him of showing the manner in which he had conducted his mother’s business.
The facts in the case at bar do not lend favorable color to the contention of plaintiff that defendant is estopped from denying liability by reason of the alleged admissions made by him to his former counsel. In marked contrast’with the dominant characteristics of his mother, defendant was of a weak and vacillating nature, and was further handicapped by' a defective sense of hearing. When told, therefore,'as he says he was, by his former counsel and confidential adviser, and the probate judge, that he must make a settlement, moved by that confidence which clients often repose in counsel, he no doubt went to the counsel’s office, and, as the latter testifies, frankly answered the questions propounded to him. But in what manner does this constitute an estoppel and close his mouth when testifying at the trial, when he had tíecome aware of his rights and had a full knowledge of the purpose of the inquiry 1 T-Tis former admissions in no manner changed the rights or lessened the remedy of plaintiff; if plaintiff deemed
As to whether or not the bringing of the suit by plaintiff changed his position within the meaning of the law of estoppel, the Supreme Court of Louisiana, in Des Allemands L. Co. v. Morgan City T. Co., 117 La. 1, says: “The bringing of a suit is not a change of position within the meaning of the law of estoppel. The suit cannot create rights, nor change the legal situation. It can only enforce the existing rights, such as they happen to be. A litigant cannot create an estoppel against his adversary by merely filing a suit against him.” And on the same question the Supreme Court of Iowa in Jamison v. Auxier, 145 Iowa, 654, says: “Defendants have done or omitted nothing which caused plaintiff to change his position, or to go to any expense which he would not otherwise have incurred, save-, perhaps, to bring suit on the note. The bringing of suit is not a fact, however, upon which to predicate a plea of estoppel.”
And the Supreme Court of Minnesota, in Western Land Assn. v. Banks, 80 Minn. 317, says: ‘ ‘ The doctrine of estoppel has no application in cases where the representations, which are claimed to give rise to it tend only to induce a party to dQ some act he is already legally bound to do.”
In the absence, therefore, of any of the elements necessary to constitute an estoppel, we must hold that it is not properly invoked- in this cause.
The property, real and personal, belonged to the mother; her mental alertness and the'exercise of her authority in regard to it, shown by the testimony, we have adverted to. The mother being dead, the son’s mouth is closed as to the nature of his relations with her, and the evidence in regard thereto, in the absence of other witnesses, must be gleaned from her conduct, so far as it can be shown by all the facts and circumstances in the case. While he acted for her and she kept a watchful eye upon his actions, she required him
Living, Mrs. Sarah Kemp' may have been unbusinesslike in her methods, but her power to do with her own as she chose cannot be questioned. If she chose to give her income or more to her son in exchange for a home and the companionship of those endearel to her by association and ties of blood, a court of conscience, whose decrees should be tempered by sentiment as well as a wholesome sense of right, should not interfere with her choice. Especially is this true where as in this ease there is no allegation of fraud, unfair dealing, or undue influence, and no intimation that she was not, at all times, of sound mind. The plaintiff’s petition is to be commended in this respect as, after the necessary formal allegations, it plants its plea for a decree upon defendant’s mismanagement of the estate. In pur opinion, the facts and circumstances do not justify equitable intervention. Precedents in support of the conclusion reached here in regard to an accounting may be found in the following cases: Donovan v. Griffith, 215 Mo. 149; Smith, Admr., v. Perry, 197 Mo. l. c. 461; Crowley v. Crowley, 167 Mo. App. 414; Carrau v. Chapotel, 47 La. Ann. 408; Evans v.
The industry and learning of counsel have prompted them to submit, pro and con, other matters for our consideration than those we have discussed, but as the burden of plaintiff’s plea is for an accounting, and we have denied his right to same, the consideration of other matters is unnecessary.
From the foregoing it follows that the judgment of the trial court should be affirmed, and it is so ordered.