I. Appeal from the Circuit Court of the City of St. Louis. Suit in equity for accounting. Plaintiff, administrator of Bridget Prendiville who died in St. Louis, October 12, 1915, alleges in his petition in substance, as follows: That said Bridget was the wife of Maurice Prendiville who died March 3, 1905; that in 1904 and 1905 said Maurice withdrew from the bank and gave his wife various sums of money aggregating $2230.40, which said Bridget at the time, entrusted to defendant Adele Prendiville, the daughter of herself and her said husband, together with rents amounting to $1542.50, which said Bridget had collected from certain real estate in said city prior to her husband's death, which said defendant never refunded or accounted for. That upon her husband's death, said Bridget became entitled to certain life insurance amounting to about $8000. That at and prior to her husband's death, she and her husband, as tenants by the entirety, owned the home in which they resided, being seventy-five feet front on the west side of Prairie Avenue in said city (of which she became the sole owner by reason of his death), and also the owner of a life estate in seventy-five feet on the south side of St. Ferdinand Avenue, improved with four brick dwellings, and one hundred and ten feet on Bacon Street with five brick dwellings thereon. That said Bridget was seventy-five years old when she died, and was feeble and infirm, uneducated and without knowledge of business or property, and her daughter, the defendant Adele, took charge of the person and property of her mother after the father's death, collected said life insurance and deposited same in her own name in the bank, took her mother away from her old home to the home of said Adele where she resided with said Adele and another daughter, Martha, until her death. That said Adele caused the old home to be demolished and a building, containing eight flats, to be erected thereon, and in all respects controlled and managed the property of said Bridget, as if it were *Page 558 the property of said Adele, without consulting said Bridget, collecting all the rents and profits thereof and depositing same in her own name in the bank; that the living expenses of said Bridget were small, and that although the annual rental of her property amounted to about $4500, yet at the time of her death, all the personal property of said Bridget which plaintiff as administrator could find, was a lot of old household furniture, appraised at $54, and plaintiff was informed by said Adele and Martha, that their mother left no other personal property and no books of account or other papers, but that said Adele promised to render an account of her dealings with her mother's property, but failed to do so. That said Adele kept the money of said Bridget as received and collected by her and deposited it in the bank in her own name and received, or should have received, interest thereon. That plaintiff being remediless at law, prays that the defendant be required to render an account of all the money, property and effects of said Bridget which came into her hands and of all the interest received or earned on same, and of all her proper disbursements, and be ordered to pay the balance found due her mother's estate to the plaintiff and for general relief.
The answer admitted that plaintiff was administrator. That her father and mother died as alleged, owning the real estate as stated in the petition, and left the four children named in the petition. Denied all other allegations of the petition. Further the defendant stated in her answer, that she did receive $6971 life insurance, belonging to her mother, which at her mother's request, she deposited in her own name in her own bank account for safe keeping, and that her mother "did also request and direct this defendant for her, the said Bridget, to collect the various rents falling due to said Bridget, enter the same upon an account thereof, to be kept, and to look after the renting and preservation of the property being so held by said Bridget. That defendant did so serve said Bridget Prendiville until the date of her death and during all said time duly accounted to *Page 559 said Bridget for whatever amounts came into her possession, or into her bank account, fully and to the entire satisfaction of said Bridget Prendiville, so that at the date of the latter's death, there was no amount in the hands of this defendant unaccounted for to said Bridget Prendivillle for which this defendant should account for to plaintiff as her administrator, a full and complete statement of all the amounts so collected by the defendant and her disbursement and accounting thereof, being herewith filed as Exhibit A." Said Exhibit shows total rents collected $31,668.25; insurance collected $6971.10; total $38,639.35. It also shows many items of expense paid out covering ten closely printed pages of the record, and totalling about $40,000.
The answer then, by way of counterclaim, states that the defendant served her mother as agent in managing her property, renting it, collecting rents, making repairs, paying taxes, etc., from April 1, 1905, to October 12, 1915 (the date of her death), for which services her mother promised to pay her a reasonable compensation, which services were reasonably worth five per centum on the amount so collected and disbursed, which was $39,000, or $1950, for which the defendant asks judgment against the plaintiff as administrator.
As a further counterclaim, plaintiff says she paid her mother's funeral expenses amounting to $275, for which she also asks judgment against plaintiff as said administrator.
The reply puts the new matter alleged in the answer in issue and alleges the rents collected were in excess of $40,000 instead of $31,668.25, as alleged in the answer.
The court below found against the plaintiff on his petition and against the defendant on her counterclaims. The plaintiff appealed to this court.
At the time of the father's death there were four children, three daughters, Adele, Martha, Mary (Mrs. Morley) and a son, Frank. The son married in 1907, two years after his father's death, and then left the family, living at home until then. It seems he was *Page 560 estranged from his mother, barely spoke to her before his marriage, and never visited her after his marriage, during her lifetime. Mrs. Morley lived in her own home but she and her children often visited her mother. After the son married, the two girls, Adele and Martha, continued to live with their mother up to the time of her death, October 12, 1915. Generally Adele collected all the rents and attended to managing and doing everything necessary, with reference to caring for the real estate and property for her mother. The rents collected were treated as common funds for the support of the family, as well as for paying taxes, repairs and expenses connected with the property. Sometimes rent was collected by the granddaughter, Eunice Morley, and sometimes by Mrs. Morley and paid to the mother, Mrs. Prendiville, herself.
This case was not instituted by the plaintiff administrator of his own accord but at the instigation of the son who agreed to pay all expenses of the litigation and save the administrator harmless therefrom. The two sisters, Mary and Martha, took no part in having the suit brought.
At the trial the defendant Adele produced a book, Exhibit 4, which she testified was a book of original entry, showing all the rents collected from the Bacon Street and St. Ferdinand Avenue houses, from 1905 to the date of her mother's death in 1915. Also another book, plaintiff's Exhibit 2, which she testified was a book of original entry showing all, the rents collected from the Prairie Avenue houses after their completion in 1908, until her mother's death. These books did not show the expenses paid out or any credits she was entitled to. But presumably showed $31,668.25, rents collected as charged against herself in the Exhibit attached to her answer. But both these books were comparatively new and Exhibit 4 contained conclusive evidence that it was a fabrication, as it contained a printed statement which was part of the book itself, dated in 1914, showing the parcel post charges, zones, etc., which were not *Page 561 established by Act of Congress until 1912, seven years after defendant Adele swore she entered the first charges in said book. After introducing these books they were withdrawn by defendant, but introduced by plaintiff to show that defendant Adele had fabricated evidence. The lower court expressly found said Exhibit 4 was a fabrication and we have no doubt said Exhibit 2 was also. So that there is nothing in the evidence to show the total rents she collected except her admission in the Exhibit attached to her answer, to-wit: $31,668.25. But Frank Prendiville, the defendant's brother, who was a real estate agent, testified to the rental value of the property during his mother's lifetime, after his father's death, which, according to his estimate, aggregated $43,931.50 during that time. In this calculation no allowance was made for vacancies. There was evidence, both by him and defendant and her witnesses, that the vacancies were substantial and considerable, but not as to the exact extent thereof. Said Frank Prendiville also testified that his sister Adele had books in which she kept the rent accounts other than the fabricated books. That she showed him these other books the day of his mother's funeral. But he did not testify as to the amount of rents such books showed his sister had collected. They were not put in evidence and defendant Adele testified she kept no other books except those we have found were fabrications. There was no account pretended to have been kept by defendant Adele of the moneys paid out by her for her mother, but it was conceded that she did pay out, substantially, all the money necessary for the household expenses of the family during her moter's lifetime, for the taxes, general and special, and repairs and other expenses connected with her mother's property, including $10,000 or $12,000 for new buildings on the Prairie Avenue property and remodelling some of the houses on the other property and $1,250 for a monument on the family lot in the cemetery. The household expenses were estimated at $50 a month by said Adele in her testimony and by her sister Mrs. Morley in her testimony. The *Page 562 mother's expenses for clothing was testimated at $100 to $150 a year by them. The evidence showed that the mother was charged with rent, in defendant's said Exhibit, for a house defendant Adele owned, in which the family lived for four years, and also with rent for a house in which the family lived some eleven months, which was owned by said Martha. The mother was also charged with rent of the other houses they occupied after moving from their old home on Prairie Avenue in 1908, which the evidence tended to show she herself rented. The evidence showed that defendant Adele had some $2,000 of her own money when her father died and received $2,600 as the beneficiary of a policy of insurance on his life, her sister Martha receiving $2,900 and her mother $6971.10 from a like source. The mother's life insurance as well as rents received by Adele were deposited by Adele in various banks or trust companies, in her name with her own moneys. In 1914 one of defendant's witnesses testified that Mrs. Prendiville said her expenses equaled the rents and she had no money. Mrs. Morley, the married sister, testified that about two years before her mother's death, she asked her mother for money to keep her home from being sold out under a mortgage, and her mother refused and said she did not have the money. There was a great mass of evidence showing the expenses paid out in connection with the property for taxes, insurance, repairs, etc., which in a general way tended to support the charges made therefor, by the defendant in the exhibit attached to her answer.
According to the evidence, Mrs. Prendiville was about eighty years old at the time of her death but generally during her lifetime, she seems to have been able to take, and did take, part in conducting her affairs, and to have generally known how they were being managed by her daughter Adele, although she was not an educated woman and could only write her name. There is no evidence of any objection on her part to her daughter's management or that she ever claimed that her daughter owed her anything, nor any evidence that her daughter *Page 563 ever exerted any undue influence over her or defrauded or misled her in any way. The two daughters, Adele and Martha, were never in business, but, remained at home with their mother and cared for her and did the housework. They had no outside income, except from the houses they owned. The house on Garfield Avenue was completed in 1906 and rented for about $45 a month. It cost $5,900 and was built and owned jointly by Adele and Martha, but in 1914 Adele purchased Martha's half for $3,000. Martha then built a house on Lincoln Street. There was no evidence that the mother ever agreed to pay either of her daughters anything for their services. We are satisfied from the testimony that they all lived together, during their mother's lifetime, as a family with the implied, if not express, understanding with the mother that she was the head of the family and that all the family expenses were to be paid out of the rents of her property unless, perhaps, the daughters' expense for clothing, as to which there is no evidence, and that the daughters were to receive nothing for their services in caring for the mother and her property. Plaintiff also introduced in evidence the bank accounts of the defendant Adele. These accounts showed balances in her favor at the time of her mother's death as follows: St. Louis Union Bank two certificates of deposit and interest $2,149; Mississippi Valley Trust Co., $1,297.10; Mercantile Trust Co., $471.22. Total $3917.32. After her mother's death, Adele paid her mother's funeral expenses, $275, and perhaps other bills she was owing at the time of her death, as there seem to have been no debts proved up against her estate. Plaintiff claims the funds in bank should be accounted for as the funds of the mother. There is no evidence that Adele when her mother died, had any other money or property except these bank accounts and her Garfield Avenue house, nor that she ever wasted or lost any money. It also appears that about two weeks before the mother's death, she conveyed her Prairie Avenue property to Adele with the understanding that Adele was to convey two of the houses to her sister, *Page 564 Mrs. Morley, and one to her sister Martha, and retain one for herself. This understanding was carried out by Adele. The other property, in which the mother had simply a life estate and the fee in which, on her death, belonged to all four of her children, was, shortly after her death, voluntarily divided between them. After this partition, Frank, the son, brought suit against his sisters to set aside the mother's deed to Adele, which was pending when this case was tried, but it was afterward tried and lost by Frank, and the judgment was affirmed by this court,223 S.W. 596. Adele testified that after her father's death she paid a note which her father owed to one Pat Durney, amounting to $1050. The paid note was not produced in evidence, she testifying it was lost. Her brother Frank testified that Adele told him that she had received the money from Durney for safe keeping and that he never heard of his father owing Durney anything. Adele denied any such conversation with her brother and testified that she never owed Durney a dollar, but that her father owed Durney the money and gave Durney his note for it, which she, with her mother's consent, paid after her father's death.
For certain years the vouchers or receipts for repairs were lost, so defendant Adele testified, and for those years a charge of $2,030.70 was made for repairs, based on the average expense for repairs in other years. The appellant does not contest all the charges against the estate contained in the Exhibit attached to the answer nor in fact any of them except the following: Average charges for repairs $2,030.70; Pat Durney note $1,050; living expenses $6,300; clothing for mother $1,050; rental of Adele's house on Garfield Avenue, in which family resided for about four years, $1,440; painting $119.80; cash paid Frank Prendiville $70; George Werner checks $367.50. Total $11,419. Appellant contends that defendant Adele should be charged with $40,000, rents collected after her father's death, during her mother's lifetime, being the amount claimed by plaintiff in his reply, instead of $31,668.25 admitted by defendant in her *Page 565 answer. That defendant should also be charged with $3500 which her mother, so the brother testified, turned over to her during the father's lifetime, but which defendant denies.
II. It is contended by appellant's learned counsel that inasmuch as the evidence shows the defendant Adele destroyed what memoranda or books of original entry she had, showing the rents collected and fabricated books which she attempted to impose upon the court as being books of original entry, showing the amount of such collections, the rule of omnia praesumuntur in odiumspoliatoris should be applied against her and she should charged as a matter of law with $40,000 the amount allegedOdium in the reply as the total rents collected by her,Spoliatoris. as was done in the case of Pomeroy v. Benton, 77 Mo. 64. That case was a suit in equity by one partner against another for accounting for profits alleged to have been made in the partnership business. The evidence showed that defendant had destroyed the original books and fabricated other books which he introduced in evidence. Under such circumstances, the court laid down the wholesome rule that, "spoliation of documentary evidence being proved against a defendant, that thereby he is held to admit the truth of the plaintiff's allegations; and this upon the ground that the law, in consequence of the fraud practiced, in consequence of the spoliation, will presume that the evidence destroyed would establish the plaintiff's demand to be just," citing many cases. We do not wish to abate one "jot or title" from this doctrine, and hold that by reason of defendant's fabrication of said account books, the whole of the other testimony, it all being verbal, offered by her as to the rents collected, must also be disregarded. The lower court held that the plaintiff's testimony as to the reasonable rental value of the property was incompetent to fix the amount of rents collected by the defendant because the extent of the vacancies was not shown by the evidence, with sufficient certainty to make a proper allowance *Page 566 therefor. Without passing on the soundness of this ruling (as it is not necessary in the view we take of the case) we hold that in the absence of competent evidence on the part of the plaintiff relative thereto then said doctrine of in odium spoliatoris would apply and the law would fix the amount of such collections at $40,000, the amount alleged in the reply.
III. The question at the threshold of this case is whether, under the pleadings and the evidence, any case at all is made out against defendant requiring her to make an accounting to the plaintiff, her mother's administrator. We think not and this on the authority of the doctrine laid down in such cases by this court in Barnett v. Kemp, 258 Mo. 139, and kindred cases cited therein. In that case the mother had a son, the defendant George Kemp, and a daughter, Mrs. Hendrix. She owned a 600 acre farm near Lamonte, in Pettis County, and a livery barn in Lamonte. She resided with her son for twenty years before her death. She was ninety years of age when she died. During saidAccounting: twenty years, her son had collected and received theParent and rents and profits of all her property and had alsoChild. received from her some $6,000 in money. He used the rents and profits of her property and her money, as a common fund for the support of the mother and himself and family and care and improvement of her property. Although of such great age, she was a strong, forceful character, much more than her son, and knew how her money and property was being used and managed by her son and there was no evidence that she ever objected to his management or use of the rents he collected or the money he received from her. Upon her death the mother's administrator brought suit against the son for an accounting of the rents and money of his mother so collected, received and used by him. This court held that the administrator could not recover. That the mother never intended or expected that her son should account in any way or to any one except in *Page 567 the manner he had accounted to her in her lifetime. The court said, WALKER, J., delivering the opinion, 258 Mo. l.c. 156, 159, et seq.: "Aside from the administrator's testimony as to the statements made to him by the defendant, and that of Mrs. Hendrix and her son and granddaughter, there is not a vestige of testimony to show that Mrs. Kemp ever regarded her son as her agent in the business sense or demanded or expected an accounting from him of the money expended under her direction. It is a reasonable presumption, however, that he accounted to her from time to time as the business was transacted. Of this he was not permitted to testify. The court's ruling in excluding his testimony is not open to criticism. . . . To sustain an action for an accounting, some such business relation must be shown to have existed between the parties as to create a liability on the part of one to the other. . . . In the absence of an express appointment or acceptance, much may, of course, be inferred as to the nature of a business relationship from the words and conduct of the parties and the correlative circumstances connected with the case. We have weighed all of these in an effort to determine whether the relation which existed between these parties was such as to create a liability on the part of the defendant. Thefact that the relation of principal and agent may in form haveexisted in this case, lends no force to plaintiff's claim unlessit be shown that a liability was thereby created on the part ofdefendant. . . .
"The mother being dead, the son's mouth is closed as to the nature of his relation 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 to keep no books, and if he accounted to her it must have been orally after each transaction. If he was required to make settlements, the conclusion is almost inevitable that they were made after the same manner as his reports. No syllable of testimony *Page 568 indicates that she was at any time dissatisfied with this manner of proceeding, and it is almost proof positive that if dissatisfaction existed the ever open ears of the village gossip would have heard it from her at some time during the twenty years and more that the relation existed. Under this state of facts, in the utter absence of evidence to sustain it, we are asked by the plaintiff to require the defendant to do what was never required of him by his mother, viz.: render an account of his transactions. 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 endeared 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 case 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 our opinion, the facts and circumstances do not justify equitable intervention." (Numerous cases cited). The italics are ours. We regard the above pronouncement in the Kemp Case as sound law, and as ruling this case for the defendant.
IV. But it is earnestly insisted by appellant's learned counsel that there is a wide difference between this case and the Kemp Case, in this, that defendant here, in her answer admits that she acted as her mother's agent and that her mother required her to keep and she did keep an account of the rents collected. It is true the answer contains such averment, but there is no allegation in the answer that she was required to keep an account of the moneys paid out for her mother, and all the evidence is that no such account was kept, which we believe and *Page 569 find, the mother well knew, and never required or intended to require. But the answer also avers that defendant did fully account to her mother, to her mother's entire satisfaction, in her lifetime. It is immaterial to the merits of this case, therefore, that defendant failed to keep the account of rents collected required by the mother, and that defendant was her agent in form or in fact, if defendant accounted to the mother in her lifetime to the mother's satisfaction. We believe and find from all the evidence and circumstances in the record, that the mother must have known, substantially, how her daughter Adele was dealing with, managing, and using her money and property, and that she acquiesced therein. There is no evidence that she ever complained of any mismanagement or misuse of her funds by her daughter. While she was a woman of little education, and advanced in years, she seems to have been a woman of positive character, and to have taken an intelligent part in advising with her daughter about her business, and we find and believe from all the evidence and circumstances that she consented to the appropriation and use of her rents and moneys by her daughter in the manner used and appropriated by her. We also believe and are satisfied from the record that the mother did not intend or expect her daughter to be strictly liable to her as an agent to a principal — as if they were strangers to each other — or for her daughter to account to anyone but herself in her lifetime, as she did do. The mother could do as she pleased with her property, there being no creditors, and if she was satisfied with her daughter's accounting to her in her lifetime, as we find she was, no one can compel her daughter to further account to them after her mother's death. Concluding as we do that the defendant is not liable to account at all to the plaintiff administrator, we need not consider the objection made by the appellant's learned counsel, to the accounting she did make or attempt to make in the trial of this case below. The case, in our opinion, was well decided by the learned chancellor on *Page 570 the circuit, and should be, and is, affirmed. Brown andRagland, CC., concur.