Page:Federal Reporter, 1st Series, Volume 10.djvu/58

46 FKDEIlAL BEPOBTEB. �time of the testator's death. Equity regards that as done whioh is required to be done. Cropley v. Cooper, 19 Wall. 167, 174; Graig v. Leslie, 3 Wheat. 563; Givm v. Hilton, 95 U. S. 591. In Taylor v. Benham, 5 How. 233, the case was somewhat like this : A South Car- olina executor was charged by bill in Alabama for money received by the sale of lands in Kentuoky, and the court would have charged him for the land in Kentuoky not sold but for the f act that the legatees had intermeddled with him by appointing other agents to sell, and for other circumstances. The rule is there laid down that a trustee is not liable for more than he actually receives, except "in cases of very supine negligence or wilful default." If this executor had sold these lands at the time he should have done, he would have realized their value ; and he will be treated here and charged in the account just as if he had done his duty. Hill, Trustees, 522, 523, and cases cited. The plaintiff cannot ask more than his proper diligence would have produced. There should be no penalty affixed to him like charging him absolutely with plaintifs legacy. He is not bound to her unless all the assets he oould have realized were sufficient to pay the lawf ul debts and her legacy. The master will be therefore directed to charge the executor with the value of these Arkansas lands, and he will find the highest value at any time from six months af ter the date of his qualification (which time the law allowed him to ascertain the condition of the estate: Tenu. Code, § 2274) to the end of the two years he was allowed to settle the estate. Code of Tenn. § 2295. He certainly should have sold the lands within this period to have been diligent, and the highest value is all that should be charged against him. �But the plaintiflf had speeifically devised to her one section of the Arkansas lands, she making her own selection out of all the lands in that state. This selection she bas never made, and it is argued that the executor is not cbargeable, because, until she does seleet, be cannot soll. This might do if the executor had shown that his efforts to execute the will had been impeded by her failure to seleot. But he repudiated all obligations on himself in relation to these lands, and cannot complain that she made no selection, and his liability cannot be excused on this ground; but he is not liable for the section devised to her. It is to be presumed that if the executor had proceeded to discharge his trust she would have selected the most valuable section of all the lands, and equity will treat this as having been already done. The master will therefore ascertain the value by sections, and deduct from the whole value that of the best section, and charge the ��� �