Todd v. James

• Decision Date: 08 May 1911
• Parties: TODD v. JAMES.
• Court: Missouri Court of Appeals

138 S.W. 929

157 Mo. A. 416

TODD v. JAMES.

Springfield Court of Appeals. Missouri.

May 8, 1911.

Rehearing Denied July 20, 1911.

1. EXECUTORS AND ADMINISTRATORS (§ 3) — NECESSITY FOR ADMINISTRATION — TITLE TO PERSONAL PROPERTY.

Though generally on the death of a person the legal title to his personalty passes to the administrator, with the equitable title in the distributees, an administration is unnecessary where there are no debts of decedent, and the personal property may at once vest in the distributees.

2. EXECUTORS AND ADMINISTRATORS (§ 49) — PROPERTY OF ESTATE — TITLE OF ADMINISTRATOR.

An administrator of a decedent was appointed. There were debts due from the estate. The heirs and widow agreed to divide a part of decedent's personalty except notes delivered by him as collateral, which notes should pass to the estate. The debt for which the note was pledged was paid, and the administrator took charge of the note and inventoried it as an as set of the estate. Held, that the title to the note was in the administrator, who was the proper party to sue thereon.

3. PRINCIPAL AND SURETY (§ 105) — RELEASE OF SURETY — EXTENSION OF TIME OF PAYMENT OF OBLIGATION.

The maker of a past-due note sent to the payee a draft for back interest and for interest in advance to a future date. The payee refused to accept it as advance interest and notified the maker that he had credited the amount of the draft on the note. Held that the time of payment of the note was not extended so as to discharge the surety thereon.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by John G. Todd, administrator of G. H. Walser, deceased, against Edwin F. James. From a judgment for plaintiff, defendant appeals. Affirmed.

Delaney & Delaney, for appellant. Edwin L. Moore, for respondent.

GRAY, J.

On February 1, 1909, Guy L. Wade and the appellant made, executed, and delivered to G. H. Walser their promissory note for $700, by the terms of which they agreed to pay said amount to Walser or order, on or before one year from date, and with interest at the rate of 8 per cent. per annum. The interest was paid for one year.

About May 1, 1910, Mr. Walser died, leaving a widow and two children by a former marriage. A short time after his death, the widow and the children agreed upon a division of the property, by the terms of which the widow took all notes, except the ones Walser had put up as collateral security before his death. The note in controversy was kept by Walser, together with certain other notes in the vault of the Bank of Liberal, in Barton county. Mr. Walser at that time lived in Liberal, and the plaintiff administrator was his son-in-law and the cashier of the bank. Some time in the summer of 1909, Mr. Walser obtained a loan from the bank, and at the time stated to the cashier that the bank could hold the notes he had in the vault as collateral security. The note in question was in the vault at that time. When the agreement was made with the widow, the note in controversy was treated by her and the other heirs as a note up as collateral, and therefore was not to be received by her in the division of the property. The evidence does not show that Mr. Walser had any other notes up as collateral except the ones in the vault at the time he made the loan, and told the cashier that his notes in the bank might be held as collateral.

A short time after Mr. Walser's death, the plaintiff herein was appointed administrator of his estate and qualified, and was administering the estate at the time this suit was brought and tried. The note was inventoried by him as a part of the assets of the estate. Some time after the death of Mr. Walser, the note he owed the bank was paid, and the administrator took charge of the collateral notes, including the one in suit, and placed it in the hands of an attorney for collection.

On the 24th day of August, 1910, Mr. Wade sent to Mr. Todd by mail a draft for $37.33, stating it was to be used in payment of the interest on the note until October 1, 1910. Mr. Wade stated in his letter that he thought by October 1st he would be in a position to take care of the note. On the 25th of August, the plaintiff, as cashier, wrote Mr. Wade that he could not grant an extension for the reason that it was the intention to institute suit at once against the appellant for the September term of the court. The letter...