Barnett v. Kemp

• Decision Date: 26 May 1914
• Docket Number: No. 16024.,16024.
• Citation: 258 Mo. 139,167 S.W. 546
• Parties: BARNETT v. KEMP.
• Court: Missouri Supreme Court

167 S.W. 546

258 Mo. 139

BARNETT v. KEMP.

No. 16024.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. WITNESSES (§ 159)—TRANSACTIONS WITH DECEDENT.

In an action by the administrator of a mother against her son, with whom she lived, for an accounting of his acts as her agent, it appearing that no books had been kept, the court properly refused to permit the son to testify as to his oral accounting to her as to each item of business done.

2. ESTOPPEL (§ 56)—EQUITABLE ESTOPPEL—ELEMENTS —CHANGE OF POSITION—BRINGING OF SUIT.

Statements by a son to his mother's administrator, who had formerly been his attorney, that he was indebted to the estate and liable to account as his mother's agent, did not estop him to deny any debt or liability in a suit for such accounting, after employment of other counsel and fuller information as to his rights; the bringing of a suit not being a change of position on the part of the administrator.

3. DESCENT AND DISTRIBUTION (§ 80)—ACCOUNTING BY HEIR—RIGHT OF ACTION—EXISTENCE OF BUSINESS RELATION.

Where defendant conducted his mother's business for many years under her immediate direction, and collected moneys for her, and expended or retained same under circumstances satisfactory to her, and where no accounting was required of him by her, an action could not be maintained against him by the administrator of his mother's estate for an accounting, especially where there was no claim of fraud, unfair dealing, undue influence, or that she was not at all times of sound mind.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Suit for an accounting by George W. Barnett, administrator of Sarah Kemp, deceased, against George W. Kemp. From judgment for defendant, plaintiff appeals. Affirmed.

George Barnett, Jr., of St. Louis, Sangree & Bohling, of Sedalia, and Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for appellant. Montgomery & Montgomery and Charles E. Yeater, all of Sedalia, for respondent.

WALKER, P. J.

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.

Pleadings. Plaintiff in his petition, after the formal allegations as to his appointment, qualification, taking charge of the estate of Sarah Kemp, and that he is now acting as administrator of same, alleges that prior to the year 1887 one James Kemp died in Pettis county, leaving a large amount of property; that at the time of the final settlement of said estate defendant was administrator of same, and in said year, as such administrator, made a final settlement of said estate, and in same there was found to be due Sarah Kemp, the widow and sole legatee of deceased, the sum of $6,667.42; that at the time said Sarah Kemp was infirm from age, and remained so until her death, which occurred in the early part of 1908; that during this time she lived with her son, the defendant, as a member of his family, and constituted him her agent to conduct and manage all of her business; that by reason of the confidence reposed by her in the defendant a fiduciary relation was created between them, and that defendant managed and controlled her property, received the proceeds thereof, and paid out whatever was necessary for her support, and made the expenditures necessary in the conduct of her business; 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 $6,667.42, to be held and managed by him for her use and benefit. That Sarah Kemp owned a large farm of 629 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 20 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 16 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 $1,536; that the aggregate sum received by defendant for and on behalf of his mother, during the time he acted as her agent, was $25,203.42, as near as plaintiff can ascertain same; 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 $6,667.42, 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 relation other than that arising from their kinship as mother and son, and the affection and confidence they had for each other, existed between them; that he did manage and control her property and received the proceeds thereof, and paid the necessary expenses thereon, and that the true facts of the relations between defendant and his mother are as follows: 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 assent and wishes, with no expectation or intention of holding the defendant liable to her or any one else therefor; that they lived as mother and son, and as one family, from the time sue 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 320 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 $1,600 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 $1,536, 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...