Lawrence v. Philpot

27 Ga. 585

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

Was the Court below right in refusing to dissolve the injunction?

' The motion to dissolve the injunction, was put on two grounds; one, that there was no equity in the bill; the other, that if there was any equity in the bill, it was sworn off, by the answer.

Was there any equity in the bill ? We think, that there . was.

The right of an administrator, with the will annexed, to sell slaves, must, in general, be derived either, from the will, or, from an order of the Court of Ordinary.

The bill, in the present case, shows that this right could have been derived from neither of these sources; for it shows, that the will did not confer on the administrator any authority to sell; and it also shows, that there was no order of the Court of Ordinary authorizing him to sell.

In short, there is in the bill, that which, taken as true, requires us to say, that the administrator had no authority to sell the slaves. Consequently, it must be true, that there was equity in the bill.

Does the answer swear off the equity of the bill ? We think not. It does not pretend to say, that the will gives the administrator, the power to sell the slaves; or, that there is, any order of the Court of Ordinary, that does. What it says, is, that there was a dispute between the administrator, and one Crittenden about the negroes, and that this was referred to arbitrators, who awarded the negroes, to the administrator, and, a sum of $639 80, besides costs, to Crittenden, and directed a sale of the negroes, “to pay the award and the expenses thereof.”

The answer insists, that a right to the administrator to sell, is derived from this direction of the arbitrators.

But in the first place, all this is new matter' and is not responsive to any thing in the bill$ and in the second place, it is not sufficient, if it be taken as true. The negroes are it seems, worth $'7,000. The “ expenses” to be paid out of them will perhaps amount to $700. There can be no necessity, then, for selling all the negroes to pay those “ expenses.” It may, perhaps, turn out, that it will be necessary to sell some of the negroes, to pay those expenses. That will, probably, depend on the result of some litigation in which, the administrator is, involved. As things stand, the administrator would act wisely, to consult the Court of Ordinary before he sells one of the negroes.

Judgment affirmed.