Lamb v. Lamb

Supreme Court of South Carolina

Lamb v. Lamb

17 S.C. Eq. 289

DecidedDecember 15, 1843

StatusPublished

This text of 17 S.C. Eq. 289 (Lamb v. Lamb) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lamb v. Lamb, 17 S.C. Eq. 289 (S.C. 1843).

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Opinion

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 [302]*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.

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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 [302]*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.

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Bluebook (online)

17 S.C. Eq. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamb-v-lamb-sc-1843.