Smarr v. McMaster , 35 Mo. 349 ( 1864 )

Bates, Judge,

delivered the opinion of the court.

Smarr exhibited for allowance against the estate of Mc-Master, a note executed by Sclmitter, McMaster & Stevens. The defence made was, that McMaster and Stevens were securities of Sehnitter, 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 prove that the arrangement was made with the consent of McMaster’s admin-istratrix. That evidence was rejected, upon the ground that the administratrix had no legal power to give such consent. There was judgment for the defendant and the plaintiff’ appealed to this court.

The statutes of the State specify the powers and duties of administrators in so many particulars, that it is seldom necessary to go beyond them in order to inquire whether a power in question can be exercised by an administrator. In this instance there is no particular section which decides upon the question presented.

It is conceded that an administrator cannot create a new obligation of the estate, nor enlarge an obligation already existing; but his letters of administration are granted to him “ to the end that the property of the estate may be collected, preserved, and disposed of according to law.” He is not the unqualified owner of the property of the estate (32 Mo. 431) and has not plenary power over it; but he is the owner for every purpose necessary to enable him to discharge the duties of his office, and is the collector, preserver and disposer of it for the benefit of the creditors, legatees and distributees of the estate; and therefore, while he may not add to the liabilities of the estate, he may lawfully do many acts for the preservation of the estate which are not specifically named in the statutes, and the diminution of the debts of the estate is an act in preservation of the estate as clearly as many other acts to that end. In the case now presented, the liability of McMaster’s estate was, before the extension of time given the principal, perfect, and the administrator could not increase it. If he consented to the extension of time, he might by that means cause a diminution of the debt, or the extension of time might be injurious to the estate by the loss of an opportunity to collect from the principal.

It is not our duty to determine whether in this or any given ease it would be good policy for the administrator to consent, but only whether he has legal power to consent in any case. It is obvious that an extension of time to the principal might be advantageous to the estate, or the contrary, in any case; and the fact that it may be disadvantageous to the estate, is an argument against the existence of the power in the administrator to make it. On the other hand, whilst it is his duty to preserve the estate, there are very few acts for the preservation of property, however apparently advantageous, which are not accompanied with some risk of loss ; and the fact that the power here in question might be so exercised as to be of great advantage to the estate, is also an argument in favor of its existence.

Executors and administrators have not in Missouri so great power as in many other places. The statutes limit their powers very much, and therefore the expression used in other places to define broadly their powers are not fully applicable.

We are however of opinion, that under the general authority of the administrator to preserve the estate, this power may be exercised by him. The court therefore erred in rejecting the evidence offered.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.