GRAVES, P. J.
This is a partition suit in which an accounting for rents is sought. A reference was ordered by the circuit court, and the parties given time in which to agree upon a referee. Within the time Hon. George V. Reynolds was agreed upon as the referee, and in due time took the testimony and reported the same with his findings of facts and conclusions of law to the court. He found that the plaintiff was entitled to partition and to the interest in the estate that she claimed, but that she was not entitled to an accounting. He further found that defendants did not and were not contesting the right of plaintiff for a partition.
The pleadings in the case are thus concisely analyzed by the learned referee:
"Plaintiff, after alleging the source of title of herself and defendants, alleges, and it is not denied, that the defendants, John I. Gorman and Roger E. Gorman, are each entitled to a 14/48 interest in the premises, and that the plaintiff is entitled to a 20/48 interest in the rents and premises. Plaintiff then avers: That Jane Gorman collected as rents, to which the plaintiff claims to be entitled, from the 6th of February, 1864, down to the 15th of April, 1910, the date of her death, a total amount of $16,175.67. That the plaintiff is entitled to interest on the amounts received by Jane Gorman at 6 per cent. per annum up to April 15, 1910, amounting to $963.29, or a total of $17,138.96. That Jane Gorman, during her life, paid plaintiff $12,822.93; that plaintiff has given credit to Jane Gorman for interest at 6 per cent. on said payments, amounting to the sum of $770.70, and that the plaintiff is still entitled to $3,545.33, balance due her after allowing all just credits and offsets. The petition then seeks a partition in accordance with the interests above set forth, and prays an accounting with the defendants as heirs at law of Jane Gorman for the rents of the premises and with John I. Gorman as administrator of the estate of Jane Gorman. The defendants' answer is: First, a general denial; second, a plea of stated account, payment, and settlement on the 15th of each month and of every year; third, statute of limitations; fourth, laches; fifth, estoppel."
It should be added to the foregoing that the reply was a general denial. The report of the referee was approved by the court, and an interlocutory judgment in partition entered in accordance with the recommendation of the referee. From this it appears that the real contest here is only the money sum of $3,545.33. The following findings of fact and conclusions of law were made by the referee:
"The referee respectfully reports that he has found the facts as developed by the testimony in this case, a transcript of which is herewith returned to the court, to be as follows:
"First. That the parties are entitled to a partition of the premises in accordance with the prayer in plaintiff's petition. This is not disputed by the defendants. The shares and interests of the parties as set out in plaintiff's petition are also admitted in the defendants' answer, and there is no difference between the parties as to this.
"Second. On the question of whether or not the plaintiff is entitled to an accounting against the defendants: The testimony disclosed that Mrs. Jane Gorman, during her lifetime, collected the rents for the property known as the `Old Rock Bakery' property on the 15th of each month. She collected, from and after the death of Patrick Gorman, the rents of said real estate. The rents from the 12th of January, 1912, to the 11th of January, 1917, will amount to $3,000 a year. The property was leased to the Henze Old Rock Bakery Company from 1902 to 1912, and there is an extended lease from 1912 to 1917 to the same company.
"The referee finds that each month Mrs. Jane Gorman accounted to the plaintiff in this case for her proportionate share of the rents from this property, and that at the end of each year, particularly beginning with the year 1898, and down to her death, she rendered an annual statement of the rents collected by her from this property to each of the children, and particularly the plaintiff in this case.
"There was never any objection made by the plaintiff to the amount she received as her portion of the rents collected to her mother, Mrs. Gorman. She acquiesced in her mother's collecting the rents and in her mother's management of the property. She wrote to her half-brother, the defendant Roger E. Gorman, on the 10th day of May, 1910, that she was well satisfied with the way her mother had handled the property.
"On the death of Mrs. Gorman, the plaintiff, her half-brother, an aunt, a cousin, and an old negro servant of the family were present in Mrs. Gorman's house, and went over her papers. All of Mrs. Gorman's canceled checks and checkbooks were thrown into a waste basket and destroyed by the defendant Roger E. Gorman. On the 15th of each month, and up to the day of her death, Mrs. Gorman paid to the plaintiff her proportionate share of the rents received by Mrs. Gorman for the Old Rock Bakery property.
"There is no way nor means by which the defendants could, if required, render an accounting to the plaintiff for the rents received by Mrs. Gorman during her lifetime:
"First. Because of the destruction of her checks and papers.
"Second. Officers of the Boatmen's Savings Bank, where Mrs. Gorman kept her money, testified that the bank books were destroyed every ten years, and that, even though these bank books were still in existence, they would not show to whom checks drawn by depositors of the bank were made payable.
"Mrs. Gorman accounted to the plaintiff, as guardian of the plaintiff during her minority, for the plaintiff's interest in the rents of the property. Final settlements were made in the minor's estate to the probate court of St. Louis, and satisfaction acknowledged by the minor in the probate court of St. Louis. Afterwards, as stated above, the monthly payments were made direct to the plaintiff, when she had attained her majority. The plaintiff is a woman of education and intelligence."
From the above findings of fact the referee reports that his conclusions of law on the above facts are:
"First. That the property should be partitioned in compliance with the plaintiff's petition.
"Second. That there has been an accounting rendered to the plaintiff by Mrs. Jane Gorman during her lifetime.
"Third. That the plaintiff is not entitled to an accounting, because she has been guilty of laches.
"Fourth. That the plaintiff is not entitled to an accounting, because she is estopped to deny the correctness of the accounts rendered and the payment made to her by Mrs. Gorman monthly and yearly.
"Fifth. That the plaintiff is not entitled to an accounting, owing to the death of Mrs. Jane Gorman, and the impossibility of her estate or the defendants to account to the plaintiff by reason of the destruction of all the papers and books bearing on the disbursements and receipts of rents by Mrs. Gorman.
"The referee respectfully reports that in his opinion, based on the evidence in this case, the defendants have proven their defenses of settlement and accounting between the parties, estoppel of the plaintiff, and laches of the plaintiff, as set out in their answer. The referee respectfully recommends that the defendants be not required to render an accounting to the plaintiff."
Exceptions were filed to the referee's report but overruled by the trial court in its interlocutory judgment aforesaid. From such interlocutory judgment the plaintiff has appealed.
I. In 1848 Dennis Murphey died, leaving a will by the terms of which he left this property to Patrick Gorman and his wife
Margaret Gorman. Margaret Gorman was the daughter of Murphey. Margaret Gorman died in 1860, leaving three sons, Thomas J., William D., and Francis P. Gorman, and one daughter, Ellen, the plaintiff in this case. This left the husband Patrick Gorman owner in fee of the property under the law then in force in this state. Patrick Gorman was remarried to Jane Brady and, by the second wife Jane, had two sons, the defendants in this case. Patrick Gorman died in December, 1863, without a will, leaving, as his widow, the second wife Jane, and the six children above named. Each of the six children were entitled to an undivided one-sixth of this property subject to the widow's dower. Thomas J. Gorman, a son by the first wife, died June 18, 1877, unmarried, and left his two brothers and sister of the whole blood and the two half-brothers as his heirs. This gave William D., Francis P., and Ellen Gorman, of the full blood, an additional 1/24 interest in the property, and gave John I. and Roger E. Gorman, half-brothers, an additional 1/48 interest in the property.
In February, 1877, the widow, Jane, bought the one-sixth interest of William D. This was before the death of Thomas J., and, after the death, he acquired the 1/24 interest aforesaid. This 1/24 interest he sold to the widow in July, 1879. April 19, 1895, Frank P. Gorman conveyed his interest, the 5/24 of the estate, to the husband of Ellen, and this was deeded by the husband to Ellen in 1907. At this date the interests stood: The widow had her dower and 5/24 interest in the fee; the plaintiff Ellen had 10/24 of the estate; and the two half-brothers of Ellen, John I. and Roger E., each had 9/48 of the estate. Up to the year 1870 the rents were all collected by the administrator, but Ellen's part was turned over to the widow, who was her guardian. These are accounted for in the settlements in probate court....
