Page:Federal Reporter, 1st Series, Volume 10.djvu/69

 PULLIAM V. PULLIAM. 57 �taken to the home place, some one and three-fourths miles distant, ginned, and hanled back to the Isbell place, and stored before the executor's sale, Janiiary 19, 1866, there being no gin on the Isbell place. On March 9, 1867, this cotton was sold by Trotter at 20 cents a pound, netting $2,573.56, the return of sale being dated May 1, 1867. Said George W. Trotter failed about tliis (irne, and these 38 baies of cotton became a total loss to the estate, as repoited by the executer, except the flrst dividend of $86.04. �"It is claimed by the complainant that the executer should have sold this cotton proraptly; that he had no right to hold any of it for a period of from 15 to 18 months on a falling market; and that he is, therefore, answerable for the entire loss. The executor, on the other hand, claims that he acted in good faith, and that, therefore, he is net to be made answerable for theso losses. �" I find and report that from the qualification of the executor, December 6, 1865, there was an almost constant decrease in the price of cotton down to the time when this cotton was actually sold. I further flnd that the executor and his attorney, Joel L. Pulliam, treated their own cotton, some 80 to 90 baies, in the same manner as the executor treated the cotton of the estate, recovering from Trotter their own at the same time that the said 22 baies belonging to the estate were recovered from him. The executor, in his settle- ment with the county court, claims that the 38 baies of cotton, so sold as above stated by Trotter, were shipped and appropriated by him without in- structions, and no proof bas been adduced to contradict this. �"The Code of Tennessee, § 2243, provides that the executor shall sell the persoiuiity at publie sale, pointing out the mode. But in Johnson v. Kap, 8 Humph. 142, it was held that he might sell ' at private sale or otherwise, and in doing so, generally speaking, he will incur no liability beyond accounting for their value;' and in Hunter v. Bryant, 12 Wheat. 32, the supreme court of the United States decided that an ' executor, who takes charge of the aflairs of a mail in trade, raust necessarily, in the winding up of his aflairs, be allowed a reasonable discretion.' Smith v. Smith, 4 Jolins. Ch. 282; Bradshaw v. Cruise, 4 Heisk. 260; Thompson v. Brown, 4 Johns. Ch. 619. In his life-time John N. Pulliam sold his cotton through said Trotter, as his cotton merchant, and Memphis was then a market for Payette county cotton. �"Assuming there was no inala fides in the executor holding this cotton, and that it was held iu the best of faith for an anticipated rise, just as he held his own, still I do not think he had a right, as executor, to hold it for such a purpose, though the anticipated advance would have been solely for the benefit of the estate. In King v. Talbot, 40 N. Y. (Hand,) 76, it is said by the supreme court of iTew York 'that the just and true rule is that the trustee is bound to employ such diligence and prudence in the care and management as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs.' This necessarily excludes all speculation, all invest* ments for an uncertain and doubtful rise in the market, and, of course, every- tJiing that does not take into view the nature and object of the trust. Hemp- hill V. Lewis, 7 Bush, 214 ; Phillips v. Phillips, 2 Frem. 12 ; Taylor v. Tabrum, 7 Sim. 12 ; Braser v. Clark, 5 Pick. 96 ; 6 Mod. 181 ; 1 Bouv. Dict. ' Devastavi t,' ��� �