Page:Federal Reporter, 1st Series, Volume 10.djvu/71

 PULLIAM V. FULIilAU. 59 �«vading responsibility otherwise attaching to him. But the executor is none the less liable for bis acts. I cannot resist the impression rnade by the whole case that this de facto executor conducted the affaira with peculiar selfishness, and in utter disregard of the rights of the plaintiff, and that the responsible executor allowed this to be done, Joel L. Pulliam is dead, and many things are unexplained which probably he could explain ; but the burden is on the defendants to show that they did all that could have been done to save this estate from loss. The liability of the executor does not grow out of any im- prudent selection of Trotter as the factor : on this ground, probably, he would not on the proof be liable ; but out of the long delay in sell- ing the cotton, whereby the executor became absolutely liable for its value without reference to his subsequent conduct in its sale. �Under our statutes of administration two years and a half, and at most three years, are allowed an executor or administrator to finally wind up an estate. Of course many contingencies may protract this term, but it indicates that 15 or 20 months cannot be safely allowed to pass without selling a commodity like cotton, so readily command- ing the highest cash prices, and at the same time so fluctuating in value that it bas become the chief article of speculative gambling in market values. It would subject estates to irretrievable ruin to allow this element of speculation to enter, into their management. I do not hold that executors are to be liable for every delay nor every loss by any delay, but only that unreasonable delay, prompted by no other motive than speculation for a higher price, cannot be indulged, and that 15 or 20 months' delay on a constantly-declining market is unreasonable. �The statutes requiring a public sale are only directory, and although in some states it is thought necessary to especially author- ize sales of such commodities by factors, I am of impression that without such statutes an executor may sell in that mode without incurring any risk of loss by depreciation, or by failure of the factor or purchaser, if he acts with ordinary circumspection and prudence, and within a reasonable time. Neither is the test of this prudence to be found in any factitious differences of price which might have been obtained by selling in one mode or at one time, rather than in another ; for, in all affairs of men, such matters must depend on sound discretion. But there are limita to the conduct of executors and trustees, and within these limits they must be kept, and in this case the defendants acted beyond all reason in holding the cotton. �I shall not undertake to distinguish cases, but only cite those I ��� �