
    Robert H. DeHay and Sarah his wife vs. William J. Dennis and others.
    
      Married woman not bound by her bid at sale for settlement of the estate.
    
    Testator’s widow and executrix, having intermarried a second time, and being- by the terms of his will entitled, on her second marriage, to one-tliird of the estate, for life, to her sole and separate use, bid off a tract of land at a sale of the estate made by order of the Court under a bill for partition : Held, that being a married woman, at the time of the sale, neither she nor her husband was bound by the bid, and consequently, that she could not be charged, in the settlement of the estate, with the difference between her bid and the amount realized at a resale of the tract of land.
    BEFORE LESESNE, CH., AT CHARLESTON, FEBRUARY, 1867.
    This was a bill for partition and settlement of the estate, real and personal, of which William J. Dennis, deceased, the testator in the cause, had died seized and possessed.
    The testator’s will bore date September 19th, 1853. By it he devised and bequeathed his whole estate to the plaintiff Sarah, his widow, for life, should she so long continue his widow, with remainder to his children; but should she marry again, then, upon such marriage, he devised and bequeathed one-third of his estate to her for life, “ not to be subject either as to the body or income, to the debts, contracts,” &c., of her husband, with the remainder to his children, and the other two-thirds to his children ; and he appointed her and William Ravenel and Charles McBeth, executrix and executors of his will.
    She, qualified as executrix, and some time after the testator’s death, intermarried with the plaintiff Robert H. DeHay, and they then filed this bill against the testator’s children, of whom there were eight.
    A writ of partition was issued, and on the return thereto, Chancellor Inglis, in February, 1860, ordered the property, real and personal, to be sold for one-third cash, and the balance on credit, and in March of the same year the accounts were referred to a master.
    The master iu his report on sales, dated April, 1860, stated that on the 6th of March, 1860, he had sold the plantation called Hog Swamp to Mrs. Sarah A. DeHay for four thousand dollars.
    Other proceedings were had in the cause prior to the ■decree of Chancellor Lesesne hereinafter next mentioned, but none of them is it material to mention.
    The case came before his Honor, Chancellor Lesesne, in February, 1867, and he afterwards filed his decree by which,. amongst other things, he ordered the plantation called Hog Swamp to be resold, and that the master state an account of the amount which each of the parties in the causé is now entitled to receive, charging the plaintiff; Mrs. DeHay, with the difference between the amount of four thousand dollars, for which the said plantation, Hog Swamp, was sold on the 6th day of March, 1860, and the amount which the same may realize at the sale to be made under this order, and with rent for the use and occupation of the said plantation, Hog Swamp, from the 6th day of March, 1860, to the day of sale to be made, as to which the said master shall take testimony and determine what is a proper amount of rent per annum.
    The plaintiffs appealed from so much of the decree as directed the master to charge Mrs. DeHay with the difference between the amount of four thousand dollars and the amount which may be realized at the resale of Hog Swamp ordered by him.
    Whaley, for appellants.
    
      Macbeth and Buist, contra.
   The opinion of the Court was delivered by

Dunkin, 0. J.

We are not satisfied that under the circumstances of this case, the bidder at the sale of 6th March, 1860, whoever he might have been, should be charged with the difference between that bid and the amount for which the land may be sold under the order of 1st January, 1868. But, from the view taken by the Court, it is not necessary to consider that matter. The decretal order, which is the subject of appeal, in effect charges the payment of that difference upon the interest of Mrs. DeHay, in the estate of her deceased husband, Wm. I. Dennis. Under the provisions of his will, and in the events which have occurred, she is entitled to a life-estate in one-third of his property, to her sole and separate use, with remainder to his children. Prior to the sale, 6th March, 1860, she had become the wife of the plaintiff, Robert H. DeHay. By law, her bid on that occasion was obligatory neither on her husband nor herself, nor had she specific authority to bind her separate estate, nor did she profess to exercise any such authority.

But it is urged that the parties are precluded by the previous proceedings. It is manifest, however, that the question has never been subjected to the consideration and judgment of the Court. All the orders in relation to the sale of the plantation were of an administrative character, and have never yet been carried into effect. In the report of Mr. Gray, 7th August, 1860, he refers to the liability of Mrs. DeHay as hypothetical. And Chancellor Carroll, in his decree on the exceptions, October, 1861, uses this language : “ The contract of purchase,” (referring to the bid of Mrs. DeHay, of March, I860,) “ if obligatory at all, binds only Mrs. DeHay or her husband.” No subsequent proceedings were had from that time until the report and decree of February, 1867, which are now submitted to the consideration of the Court. For the reasons which have been stated, the bid of Mrs. DeHay was obligatory neither upon her husband nor herself individually, nor could it charge her separate estate. It is, therefore, ordered and decreed that so much of the decretal order of January, 1868, as charges the plaintiff) Mrs. DeHay, with the difference in the sales, be rescinded.

Wardlaw and Inglis, A. JJ., concurred.

Appeal sustained.  