#### *Margaret A. Lamb*vs. *J. J. Lamb, C. W. Lamb, M. J. Lide, et al.*

1. When in granting an order to an administrator, for the sale of personal property, the Ordinary specifies the day of sale, it should be made on that day; but this is not so indispensable as to exclude the exercise of any discretion on the part of the administrator. A storm, the absence of bidders, or other like circumstances, would not only warrant, but require, a postponement

2. Should there be any postponement of the sale, it may be incumbent on the administrator to shew that he exercised a sound discretion, and acted with a view to the best interest of all the parties.

3. Where an administratrix, in hiring the negroes of her intestate, on the day of the sale of the personal property, (the negroes not being embraced in the order of sale,) hired one to the Ordinary of the district, who was present, but took from him no security on his note, she was held liable for the amount; the Ordinary upon suit being insolvent, though it was in proof that on the day of sale he was considered solvent.

*Before*Johnston, Ch. *at Cheraio, February Term,*1843. *Bill for partition, &c.*

The bill in this case states that Alexander Lamb, the intestate, departed this life, leaving his widow, the complainant, and the following children his heirs at law, viz: John J. Lamb, Alexander T. Lamb, David Wm. Lamb, Maria *290Margaret Lamb, Samuel Sparks Lamb, Julia Elizabeth Lamb, Carney W. Lamb, Joseph A. Lamb, and Mary Jane Lide. That since the death of the intestate, Joseph A. Lamb has departed this life, also intestate, leaving neither wife nor lineal descendant. That letters oí adminis^ tration were granted to Margaret A. Lamb, the widow, upon the estate of Alexander Lamb, and to Carney W, Lamb upon the estate of Joseph A. Lamb. That Alexander Lamb was seized and possessed in his lifetime of consk derabje real and personal estate, set forth in complainant’s bill. Charges that Carney W. Lamb, Joseph A. Lamb, and Mary Jane Lide, were advanced in the life time of the intestate, and prays that administratrix may be allowed to account in this court, and for partition of the estate of in-, testate, according in the legal rights of the parties, and so forth.

The accounts of the administratrix were referred to the commissioner, who made the following report:

*Commissioners Report.*

The commissioner, to v horn it was referred to enquire into and report on the above case, begs leave to submit the following report • That he has held several references ip this case, on the examination of the administratrix’s accounts, and on various matters with which the heirs and legatees in this bill endeavor to' charge the administratrix, which were not in her accounts rendered, as well as advancements to the elder children of intestate ; and as there were numerous points of litigation argued before him, he begs leave to present *them with, the*recommendations he makes to them severally as they came before him.

First, then, there was an exception taken by defendants’s solicitors to the account sales presented, as not agreeing with the appraisement. 1st. There were six beds appraised, and but five beds yrere sold at sale ; value of the one not sold, allowed, say $ 5

2nd. There were 44 hogs, appraised at $50, not sold. 50

3rd, 17 do, do, $136, 136

$291

These items, amounting to two hundred and ninety-one dok lars, your commissioner recommends be charged to the adminie-. Matrix.

*291There was also a claim set up by defendants’s solicitors, fot cotton seed, which should have been sold at sale, but the evidence on this point was not so clear as to make the administra-trix account for more than was charged in the sales*

The defendants’s solicitors also protested against an account of sales of cotton as rendered by the administratrix, and contended that she ought to have made the sale agreeably to the permission or order of the Ordinary of Marlboro’ district, and in her refusing to do so, and selling it subsequently, without aby order, she acted contrary to law, and the estate was greatly the sufferer by hei neglect to comply with the order, and that the administratrix ought to account to the estate for the-difference of the value at the time the sale was ordered by the ordinary and the price received for it when sold some several months afterwards when cotton had fallen very much in value*

There were several witnesses sworn in relation to the sale of the cotton, and the order for sale of the Ordinary of Marlboro’ district to the administratrix, was also produced for the sale of the personal estate of intestate ; at the bottom of the order a *nota bene*was affixed, saying the cotton to be sold for cash. Also a protest of the ordinary against the account sales rendered him by the administratrix.

After the most mature consideration which the commissioner is able to bestow on this matter, he recommends, (inasmuch as the administratrix did not sell the cotton as directed in the or-* der for sale, and afterwards, to wit, several months after the time appointed by the ordinary, did sell the cotton without an order to do so from the Ordinary of Marlboro’ district,) that the adminis-* tratrix be charged with the difference in the value proven on the day she was directed to sell the cotton, and the price she has rendered sales at, which makes the following sums, to wit s The account sales rendered as follows, 9477 lbs* at 9 cts.

$852 93

The same cotton at 16 cts., would be 1516 32

Making the difference in price of 663 39

To which the amount charged for hauling, in bill, 5 00

668 39

Which makes the sum of six hundred and sixtyreight dollars and *292thirty-nine cents, which the Commissioner recommends be charged to the administratrix in her accounts.

The complainant’s solicitors objected to this charge against the administratrix, for several reasons. First, that the adminis-tratrix acted in good faith, and under the advice of prudent men, in not selling the cotton on the day of the sale of the personal estate, and that at the time it was sold, it was sold for a fair price.

They further objected (to the jurisdiction of this court in the premises, and insisted if there was any damages at all, it was to be determined by an action in a court of law; with various other objections.

The defendants’s solicitors replied to this and said, that the ad-ministratrix was not permitted to exercise her discretion in opposition to the written order of the ordinary of the district, and they further produced the account sales as returned by the ad-ministratrix to the Ordinary, on the back of which was the following endorsement: *“*This sheet contains a well known incorrect statement of the account sales as represented in it, and cannot, therefore, be received as a true statement of the said sales of the property of Alexander Lamb, deceased ; and the adminis-tratrix has been formally notified of the same, and called to account for it, but has refused to do any thing in the matter. Signed, L. E. Stubbs, O. M. D.”

The Commissioner, in coming to the conclusion before stated, that it was proper to charge the administratrix with the difference in the price of the cotton, did so upon this, as well as other grounds: Suppose the administratrix had rendered no sales at all of the cotton, (which she did not do, except to charge herself with the amount received, and not with the general sales of the personal estate,) then the commissioner would undoubtedly have the jurisdiction to charge the administratrix with the appraised value of the cotton, and the proper time to fix that value, the commissioner thinks, is at the time of the sale of the other personal property, and at the time the cotton was ordered to be sold. Now as the commissioner views the sale of the cotton as being made contrary to law, he is of opinion that the administratrix is legally and equitably bound to answer to the heirs and legatees of the estate, for the value of the cotton on the day of sale of the other property, and so recommends.

*293The commissioner begs leave to refer to the exhibit A to this report, as a summary of the evidence taken by him at the different references on all the branches of this case. Also, to exhibit B, which is a copy from the Ordinary’s office of Marlboro’, of papers which were before him in evidence.*

In hiring out the negroes, Lewis E. Stubbs hired one of the negroes for one hundred dollars. Stubbs took the negro off and gave no bond ; he was subsequently sued for the hire of the negro and his purchase at sale, which was fourteen dollars and fifty-nine cents, and execution was issued out and *nulla bona*returned. Stubbs was the ordinary of the district, and it was in proof, that at the time of the sale he was considered solvent. The commissioner recommends that the sum of one hundred and fourteen dollars and fifty-nine cents be credited to the administratrix in her account, as that amount stands charged against her. There were charges made against the administratrix for rent of land, negro hire, (fee., which the commissioner has charged against her, the value being attested in evidence before him.

The defendants’s solicitors objected To the item in the admin- . istratrix’s accounts for commissions, inasmuch as she had not made her annual returns to the ordinary, agreeably to law. It was in evidence before the commissioner, that letters of administration were taken out on the estate in 1837, and that the admin-istratrix filed with the ordinary account sales in January, 1838. That there was a disagreement between the ordinary and admin-istratrix, and on the 8th January, 1838, the bill in this case was filed, asking all the accounts of the administratrix to be artdited in the Court of Equity, and this suit has been pending ever since. The commissioner recommends that she be allowed her commis- . sions on her receipts' and expenditures.

The advancements to Carney W. Lamb were then investigated.

Alexander Lamb died in 1836, — Carney W. Lamb was in possession of a tract of land, called the Swamp'tract, at the death of his lather, and kept possession from 1836 to 1842, five years, at $100 per year, $ 500'

Evidence was offered to prove the advancement of ne-groes to Carney W. Lamb, and upon the subject as to the *294time they ought to be valued, there was much discussion. The commissioner decided, that the value at the time of the death of intestate, reference being had to. their size, situation, (fee., when advanced, was the proper time, and all the negroes were valued at this standard of valuation. One negro man named York, valued at 1000

Carney W. Lamb was also charged with -two other ne^ groes as advancements, but from the evidence before me, I have charged him with one only, boy Shade, valued at 276

Also, a poney, which was contended by C, W. Lamb’s solicitor as his own, and not advanced: but from the evidence, I charged the poney to C. W. Lamb, at 100

Advancements to C. W. Lamb, $1876

*Advancements to Joseph Lamb.*

Mr. Samuel Sparks proves a bay horse, at $125

The complainant’s solicitors brought a number of claims of debts and executions, which *were paid, by*Alexander Lamb, in his life time, for Joseph Lamb, but as it was in evidence before the commissioner, that Joseph Lamb was living with his father, during the time of the payments, as an overseer, he does not believe they were advancements, and recommends that they be not charged against Joseph Lamb’s distributive share of intestate’s estate.

*Advancements to Mrs. Mary Lide.*

There was proved as advanced to Mrs. Mary Lide, one negro girl, Binah, value $ 550

One negro boy, Jackson, value 450

$1000

The complainant’s solicitors endeavored to charge Mrs. Lide with another negro girl, named Rena, but from the evidence of C. W. Lamb, this negro was not an advancement, but purchased and paid for by John J. Lide, the husband of Mrs. Mary Lide. The commissioner, therefore, recommends that this last negro, Rena, be not charged as an advancement to Mrs. Mary Lide.

The evidence as to the advancements was here closed. It was here contended, that the fees as well as taxed costs of defendants’s solicitors should be allowed out of the estate before its distribution, and the complainant’s solicitdrs objected to this course, and contended that nothing but taxed costs should be al*295lowed. The commissioner is not well enough acquainted with the practice in the Court of Equity to say what course should be adopted as to the counsel’s and other fees, not taxed costs, whether they ought to come out of the estate before distribution, or whether each party ought not to pay their own solicitors all the fees, except the taxed costs, to which each party are respectively entitled, but would recommend that the taxed costs of complainant’s and defendant’s solicitors, together with a moderate fee of one hundred and twenty-five dollars each, be allowed for complainant’s solicitors, and to one solicitor for each of the heirs represented, and that sum be deducted from the estate before distribution.

All of which is respectfully submitted.

David S. Harllee, c, e, c. d.

February 8th, 1843,

*So much of exhibit A as relates to this appeal.*

*Samuel Sparks*was examined on this. Says, at the time of the sale of the estate of Lamb, that cotton was worth in the market about 16 cents per pound. Cotton was on the decline. It had been higher.

*Cross-examined.*— It was his opinion at that time that cotton would be better. He held to his own cotton under that belief. If it had been his cotton, he should have held on and not sold it. L. E. Stubbs was ordinary of Marlboro’ district, and granted the order for sale of the estate of Lamb, and was present at the sale. Heard no objections from him in consequence of the postponement of sale of cotton. The administratrix was called before Stubbs, some time after the sale, does not know how long after, for not obeying the order for sale of cotton. Should not say a refusal to sell would be acting in bad faith. Thinks the admin-istratrix held the cotton expecting to get a better price in spring.

*General McQueen sworn.*— Was guardian for the young Mr. Rogers’s, and had cotton of theirs on hand. He held the cotton, and did not sell. He was expecting a better price in the spring. Does not remember ever to have sold before spring.

*Cross-examined.*— Does not know what he would have done if he had been administratrix, acting under the orders of the ordinary, but thinks he should have obeyed the order and sold the potion,

*296*Capt. Joshua David sworn.*— Was present at the sale of estate of Lamb. Stubbs, the ordinary, was there. Does not think Mrs. Lamb was out of the house the day of sale. Acted for- Mrs. Lamb in the sales. Kept the account sales. Mr. Sparks was present, and so was Mr. Stubbs, the ordinary. Stubbs was acting and assisting the administratrix in the sale, and so was Mr. Sparks. Stubbs was at the gin house where cotton seed was sold, and acted there as the agent of the administratrix. Witness advised the administratrix not to sell the cotton, and he did so believing that cotton would improve, and not knowing there were more than one or two cotton buyers at the sale, and there was not sufficient competition among the buyers, and he was under the impression a postponement of the sale would be for the interest of the estate. Witness is Ordinary of Marlboro’ district. The order for sale here exhibited is the usual form of orders for sale of personal estate, except the *nota bene*at foot. As ordinary, if under such circumstances as the present, where the administra-trix postponed the sale of any article, would not say it was in bad faith, but would receive such return of sales under the circumstances.

*Cross-examined.*— Would not feel authorized to specify a particular day for the sale of personal estate. If it were sold within the time prescribed by law, would have received the return of sale of estate, but as the cotton was not embraced, would have exacted a further return to embrace the cotton. Does not know whether Stubbs was satisfied on day of sale, nor does he know whether Stubbs said any thing about it, and a long time after the sale, he disagreed with the administratrix. Witness made but one return for the administratrix, and the return here is the one and the only one he ever made; don’t remember to have noticed the order when he gave the advice to the administratrix. If he had been administrator, acting under the order, he would have claimed the privilege of postponing the sale if he thought he could have done better by the article. This order differs in specifying the day of sale from usual orders. When witness grants orders, he always grants them in reference to the best interest of the estate. If in the account sales of the administrator there were known to be any article not included, he would charge the administrator with the value of the article at the time of ap-praisement.

*297There was exhibited an order of sale of the personal estate of Lamb, at the bottom of which order there was a N. B. “ The cotton to be sold for cash.” The first return of the sale of the estate of Lamb was also before the commissioner, in which Stubbs, the ordinary, refused to accept the sales, as not having been made agreeably to the order.

The account sales rendered as follows, 9477 lbs. at 9 cents. $ 852 93

The same at 16 cents, sold August 1887, 1516 32

663 39

To which add hauling in bill, 5 0()

The amount claimed by C. W, Lamb and Mrs. Lide over amount sales rendered, $ 668 39

In the negro hire, there was a negro hired to Lewis E. Stubbs for $100. Stubbs took the negro off and gave no security. Stubbs was subsequently sued, and execution returned *nalla bo-na.*As Stubbs was the ordinary, and the administratrix acting-under his directions, it was contended by the administratrix’s counsel, Mclver *&*Robbins, that the amount of the negro hire and articles bought at sale by Stubbs, of $14 59, in the whole, $114 59, and for which execution was obtained against him, and *nulla bona*returned, ought to be taken from her liability.

*Col. Dudley sworn.*— Says Stubbs was reported to be good and solvent in 1837. He would have trusted him at that time.

*Third Reference.*

*Hartwell Ayers sioorn.*— Mr. Ayers was present at the sale of the estate of Lamb. L. E. Stubbs, ordinary, was there, and had the control of the sale, and did control *the*sale by calling out the articles to be sold. (Here the council of C. W. Lamb objected to the further testimony of Mr. Ayers, in relation to the sale of cotton, as parol testimony is not to be offered in opposition to the written order of the ordinary, and that the ordinary could not have control, having granted letters to the’ administratrix.) I allowed Mr. Ayers to proceed with his testimony. Mr. Ayers said, in passing the cotton gin, Mr. Stubbs said, it was best, he thought, to postpone the sale of the cotton until the whole crop *298was gathered, and then sell altogether. Mrs. Lamb was not present at the time, and the conversation was not in presence of Mrs. Lamb. The conversation was to those standing about the gin. Capt. David acted as clerk and took the notes.

*Samuel Sparks sworn.-^-Sa.js*the cotton that was not gathered of the estate of Lamb, was sold on the day of sale, and bought by John Lamb. Thinks there were two good bales.

*Mr. Ayers cross-examined.*— Quest. All you saw Mr. Stubbs do, was the calling out the articles from the list *1*Answer. The ordinary would consult Mrs. Lamb, and then call out the articles to be sold; any article out of sight, he called on Mrs. Lamb, and she would produce it, and then he would tell the crier to cry it; and these facts were the reasons why he thought Stubbs had the control of sale.

*Sparks cross-examined.*— The cotton in the field was sold towards the latter part of the sale. The negroes of the estate were hired out on the day of sale, five or six hands to widow. It would take three hands not more than between two and three weeks to pick out, say about two weeks. Mr. Sparks ginned the cotton purchased by Mr. Lamb at sale. Furnished the bagging and rope for it. Thinks it was two large bales. Does not positively recollect. It may be four bales, but it strikes him forcibly it was two.

The account of sales was offered in evidence ; $20 for all the potton in the field.

*So much of exhibit B as relates to this appeal.*

State op South Carolina,

Marlboro’ *District.*

By Lewis E. Stubbs, Ordinary of said district. Whereas, Margaret A. Lamb, administratrix of the estate of A. Lamb, deceased, has petitioned me for an order of sale to sell all the personal property of said estate, except the negroes, for the purpose of preventing waste:

These are therefore to authorize and empower you, the said Margaret A. Lamb, administratrix of said estate, to expose and offer to public outcry, and sell to the highest bidder, on Friday, the 19th instant, at 10 o’clock, A. M., the whole of the personal property, (except the negroes,) on a credit till the first day of January next, for all sums over five dollars, taking bonds Or *299notes, with good and sufficient security; for five dollars and under, cash, on the delivery of the articles ; and fifteen days previous notice to be given by public advertisement.

Given under my hand and seal this the 5th day of January, A. D. 1837.

(Signed) L. E. Stubbs, o. m. b. [seal.]

N. B. The cotton to be sold for cash.

L. E. Stubbs.

Then follows account of sales, articles enumerated. On this account of sales, is endorsed as follows :• “ Account of sales of the estate of A. Lamb, deceased, received, filed Dec. 11th, 1837.

L. E. Stubbs, o. m. d.

Recorded in book A, page 127.”

“ Recorded in book B, pages 105, 108, inclusive, December 22d 1837.”

L. E. Stubbs, o. m. d,

*“*This sheet contains a well known incorrect statement of the account of sales as represented on it, and cannot, therefore, be received as a true statement of the said sales of the property of Alexander Lamb, deceased; and the administratrix has been formal-ly notified of the same, and called to account for it, but has re-fused to do any thing in the matter.

L. E. Stubbs, o. m. b,

South-Carolina, ) By L. Stubbs, Esq. Ordinary of

Marlboro5 *Districts*) said district.

Ordinary

*Vs.*

Margaret A. Lamb, Administratrix,

Joshua David and Samuel Sparks.

To Margaret A. Lamb, administratrix of the estate of Alexander Lamb, deceased, Joshua David and Samuel Sparks.

You are hereby notified that the account of sales of the estate of Alexander Lamb, deceased, as rendered in by the said Margaret, has not, nor can not, be received as a correct account of said sales ; and you are, therefore, hereby required to be and appear in the Court of Ordinary, to be holden at Bennettsville, on Tuesday, the 16th instant, to shew cause, if any there be, why the said ac*300Count of sales has not been duly returned according to law, into-the office of the ordinary, in the aforesaid district.

Given under my hand and seal, at Bennettsville, January 10th, A. D. 1838. L. E. Stubbs, o. m. d. [Seal/]

The solicitors of complainant filed, with others, the following exception:

*First*— That the commissioner has charged the adminis-tratrix with a considerable sum of money, as the alleged excess in the value of the cotton belonging to the estate at the time of the sale ordered by the ordinary, above the price actually received.

And the defendant’s solicitor filed three exceptions, the second being in the words following, viz:

“ For not charging administratrix with amount of negro hire to L. E. Stubbs, to wit, one hundred dollars; also the amount L. E. Stubbs purchased at sale, to wit, $14 59.”

On the hearing of the exceptions filed, his Honor made the following order:

*Chancellor’s Decree.*

'“ On hearing the exceptions of plaintiff and defendant in this case, it is ordered that the second exception filed by Carney W. Lamb, one of the defendants, be sustained, and that all the other exceptions be overruled, and that the final-confirmation of the commissioner’s report await the decree of this court, upon the claim of Joseph A. Lamb, for certain negroes mentioned in the answer of Carney W. Lamb, administrator of Joseph A. Lamb, to certain negroes in bill mentioned; when that claim shall be disposed of, the court will make such order in relation to the matters of account involved in the report, as the circumstances shall then indicate”.

The complainant appealed, on the following grounds, to wit:

1. Because his Honor erred in deciding that the order of the ordinary for the sale of the intestate’s estate is imperative, and that the complainant is liable for the loss sustained on the sale of the cotton.

*3012. Because tlie administratrix in postponing the sale of the cotton exercised a prudent discretion, and is, therefore, not liable.

3. Because the ordinary, by parol, revoked the order for the sale of the cotton.

4. Because the ordinary, by receiving and filing in his office the return of sales made by the administratrix, from which it appeared that the cotton had not been sold, sanctioned the postponement of the sale of the cotton, and in effect was a revocation of the order of sale in that particular.

5. Because, if the administratrix be liable, it is a question of damages, and the remedy is at law.

6. Because the second exception of the defendant, Carney W. Lamb, should have been overruled, it being in proof that Stubbs was wholly insolvent.

*Robbms and*Mclver, for the appellant,

contended that the order of the ordinary was not imperative.

If the order was imperative, and the administrator was obliged to sell under all circumstances, and had no discretion, losses would, in all probability, happen. Cited 2 Hill Rep. 562; 2 Hill Ch. Rep. 364 ; 1 Bailey Rep. 528 ; 3 Munford, 288.

*David, Rlakeney and Dargan,*contra,

cited 5 Stat. at Large, 109; (Act of 1789,) Acts 1839, sec. 18th, p. 43; 6 Stat. 238, (Act 1824;) 2 Hill Ch. Rep. 98.

*

**Two other exhibits *are*referred to by the Commissioner, but they are not material to the subject matter of the appeal,

Curia, *per*Dunkin, Ch.

The legal title to the personal estate being in the executor or administrator, it was very customary for the personal representative to sell the personalty without any authority from the ordinary, or any other court. This has been restricted by the Acts of Assembly. In granting the order or authority to sell, the ordinary sometimes fixes the day of sale; and, more frequently, leaves that to the discretion of the administrator. When a time is specified, the sale should be made on that day. But it cannot be supposed that this is so indispensable as to exclude the exercise of any discretion on the part of the administrator. A storm, the absence of bidders, or other like circumstances, would not only warrant, but require, a postponement. The authority is granted at the instance *302of the administrator. He ought, and will be likely, to conform to the provision in this respect. If there is any postponement, it may be incumbent on him to shew that he exercised a sound discretion, and acted with a view to the best interest of all the parties. In this case the adminis-tratrix had an interest of one-third in the sale of the cotton. She was advised to postpone the sale. Mr. Sparks, General McQ/ueen and Mr. David, (the present ordinary,) were of opinion that she acted judiciously. The two former, (gentlemen of intelligence and experience,) pursued the same course with their cotton at that time. The ordinary, Mr. Stubbs, who granted the authority, was himself present, aiding the administratrix, and he stated to one of the witnesses at the time, that “ he thought it was best to postpone the sale of the cotton until the whole crop was gathered, and then sell the whole together.” It seems to the court that, under these circumstances, the administratrix ought not to have been rendered liable for the loss, and the exception should have been sustained.

This court concur with the Chancellor as to the defendant’s second exception. Having omitted to take security on the note, the administratrix was properly charged with the loss.

Let the report of the commissioner be reformed according to the principles of this decree.

Johnson and Harper, Chancellors, concurred.