
    Ann Bryan, and Others, v. John Mulligan, Executor of - Bryan, deceased.
    An executor or administrator is only required to manage the estate in his charge as a prudent man would his own, and in case of loss, the question of his liability cannot be resolved by any general rule hut depends on the particular circumstances of each case. [*364]
    Generally it is the safer rule for an executor to sell the produce of the estate in the market usually resorted to; but when acting in good faith and under a reasonable expectation of a greater profit, he shipped the cotten to Liverpool, instead of selling it in Charleston, and the Liverpool price was less than he was offered in Charleston, he will not be chargeable with the loss. [*364]
    Heard at Barnwell, February, 1835.
    This was a bill for an account of the defendant’s administration and management of the estate of his testator; and came on for a hearing upon an exception filed by the plaintiffs to the Commissioner’s report upon the accounts. The single question involved in the exception, and decided by his Honor will be sufficiently understood by his decree.
    De Saussure, Chancellor. This case came up on the report of the Commissioner, and an exception thereto filed by the plaintiffs. The report of the Commissioner was satisfactory to both parties, except on one point, which is stated in the following words: — “For that the Commissioner, in and by his said report, ought to have charged the defendant for the nine bales of cotton, which he ^shipped to Liverpool in the r^ono year 1825, with the price which the said cotton might have been ■- sold for in the Charleston market, and with the interest thereon.”
    The exception involves a question of considerable importance to the community. The testimony presented to the Court was as follows :—
    William R. Ball, testified that Mr. Mulligan, the executor, shipped to Liverpool nine bales of cotton of the crop of the estate of the year 1824. The shipment was made in the year 1825. Mr. Mulligan informed the witness that he had been offered 24 cents per pound for it in Charleston. The bales of cotton made on the plantation generally averaged from 830 lbs. to 350 lbs. weight. It appears that by the sales in Liverpool a smaller price was obtained for the cotton of the estate than the price offered to Mr Mulligan in Charleston ; and the object of the exception is to charge the defendant, the executor, with the larger price. It is admitted that Mulligan shipped cotton of his own, at the same time, and suffered also in the same way; and there is no doubt that he intended what he honestly thought was for the benefit of the estate. The decision of the question will depend upon the right which an executor has to act as this executor has done.
    In my judgment he had no right to enter into such a speculation as he did. It was his duty to send the crop to the regular markets of the country, and to have accepted the best price which they afforded; and not to have speculated on the possibility of a better market abroad. That was an uncertain risk — a risk not only of the price, but of the capital itself. It would be dangerous to estates to sanction such a course, and would open the door to great abuses, especially where the intentions of executors were not as pure as those of this executor are admitted to have been.
    It is therefore ordered and decreed, that the report be referred back to the Commissioner, with instructions to correct the same, by charging the executor with the amount of the nine bales of cotton, at the price of 24 cents per pound, which he was offered in Charleston, and refused.
    From this decree the defendant appeals, and moves that the same may be reversed, or modified, on the following grounds :—
    1. That the law imposes no other restraint upon an executor, in selecting a market for the disposal of the produce made by him upon the es^a^e testator, than the exercise of a sound discretion *in -* determining as to which of the several markets accessible to him, will be most advantageous for the estate: and that under peculiar circumstances, he would not only be justifiable in selecting the ultimate market, although in a foreign country, but might even subject himself to deserved censure for not doing so, especially as he might guard against all the risks of transmission by insurance at an almost insignificant premium.
    2. That whether the defendant, in sending the cotton made on his testator’s estate to Liverpool, acted within the limits of a sound discretion, or indulged a wild unjustifiable spirit of speculation, for the result of which he should be held chargeable, depends altogether upon the circumstances under which the shipment was made; and his liability is therefore a question of fact, upon which the judgment of the Commissioner in his favor, ought to have been regarded by the Chancellor as conclusive.
    3. That if the decision of the Commissioner were not regarded as con- “ elusive, still it was not impeached by any evidence; and the Chancellor has decided a question of fact as a question of pure law, without reference to the evidence.
    4. That, in point of fact, the propriety of sending the cotton to Liverpool was not impeached by a tittle of evidence bearing upon the question; and the decree therefore operates as a surprise upon the defendant, who has been precluded from producing evidence, which it was in his power to obtain in Charleston establishing the propriety of the shipment at the time when it was made, and showing, in fact, that not to have made it, would, under the circumstances, have argued a gross disregard of the interests in his charge. And it is submitted that, in the absence of evidence impeaching the propriety of the shipment, the Chancellor, if he entertained any doubt of it, should have done no more than to direct an inquiry by the Commissioner.
    5. That even if the liability of the defendant were conceded, the extent of it should not have been settled by loose, uncertain and speculative evidence, as to the weight of the cotton, and the prices which might have been obtained for it in Charleston, when it was in the power of the plaintiff to have produced exact proof from the scale books on the first point, and the prices current of the period, and the testimony of factors in Charleston, as to the second. And it is submitted that, on this question also, an inquiry *by the Commissioner should have been directed, if the exception were not itself overruled. . >-
    
      Colcock, for the appellant.
    
      Patterson, contra.
   Johnson, J.

The rule laid down by the Court in Taveau v. Ball, 1 M’C. Ch. Rep. 464, is, that executors, administrators, and others, acting in a fiduciary character, are bound to manage the funds committed to their care, with the same care and diligence that a prudent and cautious man would bestow on his own concerns; and I am not aware that the correctness of this rule has ever been called in question. In all cases, therefore, where a loss arises in the management of funds by an executor, or other person acting as a trustee, the question arises whether the loss happened from casualties against which no one can be expected always to guard, or from his want of care and circumspection ; and is an unmixed question of fact which cannot be resolved by any rule, but must depend on the particular circumstances of each case.

In the management of an estate by an executor or administrator, it would be generally safe to sell the produce of the estate 'in the market usually resorted to in the country where it is situated, because it would furnish evidence of ordinary care and circumspection, but as an arbitrary rule, it never could be tolerated. The town of Columbia is, for example, the common market of the districts lying north of it; and would an administrator, managing an estate in York, be excused for selling his crop there, when it was notorious, or even probable, that it would command a much higher price in Charleston ? Certainly not: for a prudent and cautious man would send it on to Charleston to obtain the better price. And precisely so here ; if the defendant acted in good faith and with the reasonable expectation of making a greater profit for the estate which he managed, by sending on the cotton to Liverpool, instead of selling it in Charleston, he has done all which the law requires of him. Produce is bought in Columbia to be sold in Charleston, and in Charleston to be sold in Liverpool, on a profit; and I cannot consent that a sale in the market, where the highest price is expected to be obtained, should be considered as negligence by a settled rule of law.

_ The rePol’k Commissioner as to the facts out of which *this question arises, has not been brought up; and the Court is consequently ignorant of the precise state of the markets in Charleston and Liverpool, at the time the cotton was sent to market. There may have been something which would have rendered the shipment imprudent, but the Chancellor has founded his judgment on the ground that the defendant was bound to sell in the markets of the country; and as we cannot concur in this, the case must go back to the Commissioner to ascertain and report the facts.

It is therefore ordered, that the case be referred back to the Commissioner, to ascertain and report to the Circuit Court, the facts connected with the question before the Court.

O’Heall and Harper, Js., concurred.  