#### Ex Parte E. G. Foster, Adm’r of P. Ballinger.

This court will not on the ex parte application of the administrator of an estate, direct the proceeds arising from the sale of the *lands*of the intestate, to be paid over to the administrator upon an alleged insufficiency of assets to pay the debts of the estate.

*Before DUNKIN, Chancellor, at Spartanburg, June Term,*1838.

This was a petition for funds in the hands of the ordinary. The report of the commissioner is as follows:

“ That it appears from the evidence of John Boman, ordinary, that the petitioner is the administrator of Presley Ballinger, de» *20ceased. That the sale bill of his estate on file in the ordinary’s office amounts to the sum of $2,507 89

It appears from the first and second annual returns of the petitioner, on file in the ordinary’s office, that he has received other than on the sale bill, the sum of 743 53

Making the sum of $3,251 42

That it also appears from the first and second returns of the petitioner, that he has paid out the sum of 1,787 50

Which leaves in his hands the sum of $1,463 92

From which should be deducted the amount of the ordinary’s fees and his commissions, which is 182 55

Which would leave a balance of $1,281 37

The petitioner, E. G. Foster, being sworn, says, that since he made his last return to the ordinary’s office, he has paid out the sum of $1,049 09

That there are demands which have been presented to him, and which are unpaid, and of the correctness of which he has no doubt, to the amount of 958 22

Making the sum of $2,007 31

That to pay this sum of 2,007 31

The petitioner has as above shown, the sum of 1,281 37

$725 94

The petitioner further states, that he has due, and for money in his hands, which he will likely collect, to the amount of 250 00

Which shows a deficiency of assets, to say nothing of commissions, ordinary’s fees, and other incidental expenses, of $475 94

It appears, from the evidence of Jno. Boman, ordinary,

*21that the real estate of Presly Ballinger, deceased, sold for $769 00

That the expenses were 26 00

That he has in his hands $743 00

June 6, 1838.

Respectfully submitted.

H. J. Dean, C. E. S. D.”

The Chancellors decree is as follows:

“ Presley Ballinger died intestate, in the fall of 1835. Administration of his estate was committed to the petitioner, E. G. Foster.

The real estate of the intestate having descended to his six minor children, an application was made to the ordinary, under the provisions of the act of 1824, by tlenry Cathron, styling himself guardian in chief of one of the minors, and guardian ad litem of the other five children, ~and praying a division or sale, for partition. The petition was filed on the 16th of January, 1837; order for sale entered in the sheriff’s office on the same day; and the land was sold on the 6th of February and 6th of March, 1837, on a credit of twelve months. • ■

The object and prayer of the petition, now filed, was to obtain an order directing the ordinary to transfer the proceeds of sale of the real estate to the administrator of the intestate, in consequence of an insufficiency of assets to pay the debts.

On reference to the commissioner, he made a report, which will form part of this decree. (See ante.)

The solicitors for the commissioner stated that for many years past, applications of a similar character had been made, and granted.

The case of Ex parte, Jno. P. Evans, adm’r, decided in June, 1836, was produced from the records of the court, and is analogous. In ex parte Moses Casey, adm’r, decided in 1828, the Chancellor, on the petition of the administrator, directed the lands of the intestate to be sold by the commissioner, and the proceeds to be paid over to the administrator.

These authorities, and the urgency with which the counsel press*22ed, that a practice of much convenience in the administration of small estates might not be disturbed, have caused me to consider the subject more than I had at first supposed necessary.

I think it very evident that the act of 1824 has no bearing on the application. It was intended simply to facilitate the distribution of real estates of limited value among those entitled, under the act of 1791. The object was to avoid the expense and delay of proceedings in the Court of Equity or of Common Pleas.

The case must be decided as if a sale of the. real estate had been made by the officer of this court, and under its order. It is true that, under our decisions, the lands of the testator or intestate, may be sold under an execution against the executor or administrator. Yet, it cannot be disguised, that the court has no disposition to extend a principle, the original propriety of which may, perhaps, be well questioned. No decision of the Appeal Court was produced in which aid had been afforded to the administrator to possess himself of the sales of land for the purpose either of paying debts, or of distribution. It seems tó me entirely irregular. Neither the creditors of the intestate or the heirs at law are parties to the proceedings.

In the event of defalcation on the part of the administrator, I cannot suppose that his sureties would be held responsible. I think the very point was so decided ten years since, in Charleston, in the case of the administrator de bonis non of John Holmes, Sen. against Thomas Hanscome and the executors of Francis Simmons, sureties of John Holmes, (the original administrator.) Under these impressions, I am constrained to refuse the prayer of the petition, and it is so ordered.”

(The title of the case to which the Chancellor refers, is “ the ordinary of Charleston District, for the use of Thayer and wife and Glover and wife, v. Thos. Hanscome,” decided by the Court of Appeals, at Charleston, 13th April, 1830”)

Cukia, per Dunkin, Ch.

The court concur in the views of the Chancellor. The appeal is dismissed.

Johnson, Harper and Johnston, Chancellors, concurred.