I understand that the appellant rests his case on *Page 178 the charge that the appellee did not exercise due care. I think that in this state the rule in regard to specific articles is as stated by my brother LADD.
As to the matter of due care, I find it difficult to imagine any course which would have been more reasonable.
As to the suggestion that the funds might have been specially deposited in a savings bank, or other bank, it does not appear to me that such a course would have been any better. If the safes of the banks are more modern and difficult to break, so they are more apt to be attacked, because the prize of success is so much greater. I believe that the proportion of private safes plundered, compared with the whole number, is much less than that of bank safes. I cannot, therefore, see in the facts reported any sufficient reason for charging the appellant with want of due care.
SMITH, J. I should be slow to assent to any decision in this case that would tend to relax the rule which should govern an administrator in the care and preservation of property, especially money that may come to his hands in that capacity. He is held to the exercise of due care. The question is, whether this appellee exercised due care in the custody of the funds of this estate. By the report of the auditor, it appears that he had, on the eighteenth of April, 1869, $498.94 belonging to this estate deposited in the safe of his firm in Fisherville; that the office of the firm was broken into in the night-time of that day, the safe blown open with powder, and this money, with other money and securities belonging to the appellee and his firm and others, was stolen therefrom: that the safe was a good one is shown by the fact that the burglars who entered it were obliged to resort to the use of gunpowder. It is reasonable to conclude that the lock was one that could not be easily picked. The appellee and his partners and other business men placed their own money and securities in it for safe keeping. The money might not have been lost if placed in a bank, but there was then no bank nearer than Concord, seven miles distant. The money might not have been lost if the appellee had carried it in his pocket, but no prudent man would think of carrying large sums of money in his pocket, to say nothing of the inconvenience of so doing. Where, then, could the appellee have kept this money with greater apparent safety? His administration account shows that he was frequently receiving and paying out money on account of this estate, and held this money to be paid to creditors on call.
I am satisfied that in this case the administrator exercised due care, and therefore should be credited with the loss in his account. Jones v. Lewis, 2 Ves. Sen. 241, cited by my brother LADD, is a case which seems to be directly in point.
Decree of the probate court affirmed. *Page 179