Smarr v. McMaster

• Citation: 35 Mo. 349
• Parties: ELIZA E. SMARR, Plaintiff in Error, v. ANN E. MCMASTER, ADM'X, &c., Defendant in Error.
• Decision Date: 31 October 1864
• Court: United States State Supreme Court of Missouri

35 Mo. 349

ELIZA E. SMARR, Plaintiff in Error,

v.ANN E. MCMASTER, ADM'X, &c., Defendant in Error.

Supreme Court of Missouri.

October Term, 1864.

Error to Hannibal Court of Common Pleas.

James Carr and J. L. Robards, for appellant.

I. It is a general principle of law, that where an extension of time is given by the payee in a note to the principal debtor. without the consent of the surety therein, that said extension will release the surety; but where such consent is given, the surety is still held bound. (Nichols' Adm'r v. Douglass et al., 8 Mo. 49; 1 Pars. Notes, 238; 8 Ark. 141.)

II. The administratrix is the full, legal representative of the intestate in regard to all personalty, and all contracts affecting the personalty. (1 Will. Ex. 545-6; 1 Lom. Ex. 287; Parsons v. Hill, Adm'r, &c., 8 Mo. 135.) As the intestate in his lifetime could have confessed a judgment, so can his administratrix confess one on the same indebtedness. (2 Will. Ex. 887 to 890.) She may submit the matter to arbitration; she may admit a debt, barred by the statutes of limitations, so as to take it out of the statutes and revive it in its original force, and is not bound to plead the same; she may release a debt; she may pay a debt, she may compound a debt. (2 Green. Ev. § 347, a.; Murray v. Blatchford, 1 Wend. 585.)

If the administratrix can do all, or any of the above acts, she is certainly competent, as the legal representative of the intestate, to consent and make an arrangement with the payee of a note on which her intestate is held bound as surety, granting an extension of time to the principal debtor by his giving additional security to indemnify the estate of her intestate. It was not creating a debt against the estate, nor was it releasing a just debt due to the estate, but it was simply doing that which a prudent man would do in the management of his own affairs, and in the exercise of a sound judgment.

In Kee's Ex. v. Kee's creditors, 2 Grat. 128, the Court of Appeals of Virginia, defining the duties and powers of an executor (and the same is applicable to an administratrix) say: “The duties of the executor though they may not be moulded by the finer moralities, which though sanctioned by conscience cannot be enforced by law, are yet to be performed under the obligations of sound judgment, acting on those considerations of worldly prudence which affect the safety of the pecuniary interests confided to his care. When such judgment so governed is fairly exercised and (tested by the facts existing and known at the time it is exercised) is such as would probably be formed by a judicious man managing his own affairs with reference to considerations of mere worldly prudence, the executor is justified in acting on such judgment, and so acting is not responsible for alleged losses resulting from his conduct.

BATES, Judge, delivered the opinion of the court.

Smarr exhibited for allowance against the estate of McMaster, a note executed by Schnitter, McMaster & Stevens. The defence made was, that McMaster and Stevens were securities of Schnitter, and that the plaintiff had given Schnitter further time for the payment of the note, upon his giving additional security by a deed of trust upon land. The agreement to give further time was made after the death of McMaster, and the plaintiff offered to...