Page:Federal Reporter, 1st Series, Volume 10.djvu/70

 58 FEDERAL REPORTER. �4, 5; Thompsoii v. Brown, 4 Johns. Ch. 629-630; 4 Kent, Com. 551, and note b, et seq. �" ihe 22 baies of the 1864 crop of cotton were shipped to Memphis, Novem- ber 16, 1865, and the crop of 1865, being 38 baies, was ginned and baled ready for market before the sale of thepersonal property, January 19, 1866, and I think, and so report, that all this cotton should have beeu sold promptly, at or about that time, under all the circumstances surrounding this case, and that the conduct of the executor in holding it as he did, for so long a time and on a decliuing market, and with so large an indebtedness against the estate drawing interest, was not such an exercise of diligence and pru- dence, in tnist matters, as would excuse him from the loss thereby resultiug. From the deposition of Thomas H. Allen I flnd that the priee of such cotton as this, during the months of January and February, 1866, was 38 cents a pound. Had the executor promptly sold the 60 baies of cotton he would have ■realized for it $6,730.35 more than he did ; his delay causing a loss to the estate of that amount." �I do not find anything in the cases cited by the learned counsel for the defendants to militate against these conclusions of the master. It is, undoubtedly, often said that the measure of prudence for a trustee is that degree used by an ordinarily prudent man in the con- duct of his own affairs. But non constat, because a trustee, by the same conduct, loses his own property, that it was a prudent exercise of his trust. Hill, one of the defendants in this case, says he sold his cotton in Somerville, near where all these parties lived, and the estate cotton was kept, for 50 cents per pound, and AUen's testimony is conclusive that it was worth all the master has charged the executor. And yet, keeping it for a higher price for eo long a time, the executor sold it for 17 and 20 cents a pound. It does not seem to me, under the facts disclosed, a prudent thing for a man to have kept his own cotton for 15 or 20 months on a falling market, upon any theory that ultimately it would advance. The close of the war threw an accu- mulated quantity upon the market, and opened an opportunity, for unobstructed production, and it was mere speculation to suppose that the emancipation of the slaves would so decrease production as to enhance the price. A man may take such risks with his own, but if he embark the property of others in such a doubtful and dangerous sea of speculation, he must answer for the consequences. The proof shows they held their own cotton, but they lost none of it by Trotter's failure, and how this happened is unexplained. �As to the executor, it is plain that he turned the management over to his brother, Joel L. Pulliam, who, while renouncing the trust im- posed by the father's will, became de facto the executor, thereby ��� �