Prescott v. Read , 62 Mass. 365 ( 1851 )

Shaw, C. J.

A probate bond under our statutes is an official bond, binding an executor or administrator to the faithful performance of the duties of his office; it is therefore a continuing bond, commensurate in time with those duties, each violation of which is a breach, and furnishes a cause of action. Potter v. Titcomb, 7 Greenl. 315. Supposing, therefore, that a probate bond is within the statute of limitations, Rev. Sts c. 120, § 7, limiting actions to twenty years, it is twenty years after the occurring of the cause of action, and not after the bond given. Now, one of the express conditions of the bond is, to render an account, when thereto cited by the judge; and such citation may be issued and an account required, after twenty years. White v. Swain, 3 Pick. 365. But further, it appears by the facts, that one of the administrators has received money, as the interest and dividends of stock, inventoried as part of the assets of the estate, at various times, from the rendition of his former account to the present time. These proceeds are assets, for which the administrator is accountable. Upon every such receipt he became liable to account, and failing to account upon citation was a breach of the bond.

Judgment for the penalty of the bond; case referred to an auditor to find the amount for which execution may be awarded.