
    Oliver Prescott, Judge, &c. vs. Joseph E. Read & others.
    An action may be brought on a probate bond at any time within twenty years after the breach of condition relied on as the ground of action.
    This was an action on a probate bond given by the defendants on the 4th of February, 1817, as administrators of the estate of Benjamin Bennett. The action was for the benefit of Henry Bennett, a son and heir at law of the deceased, bom November 16th, 1814.
    It was agreed by the parties: “ That the administrators returned into the probate court an inventory of the estate of the deceased on the 3d day of June, 1817, and not before; that the administrators had rendered but one account of their administration, namely, on the 5th day of April, 1822; that Edward Bennett, one of the administrators, had received money, from time to time, since the rendering of the account and inventory, up to the time of bringing this action, being the proceeds of interest and dividends on certain stocks named in said inventory, but of which no account had been rendered, and also rents of real estate; that said Bennett had received the profits and use of other property named in the inventory, since the rendering of his account, not afterwards accounted for, but he had lived in the family of his deceased brother, the intestate, most of the time since his death, and had expended sums of money in the support of the widow and children including the real plaintiff, that said Bennett had received the benefit of the labor of the widow and children, including the labor of the real plaintiff, but whether he had expended all the sums so received was not agreed; that no distribution had ever been ordered by the probate court, and that the administrators had never paid over to said Henry Bennett, his distributive share of the estate of the deceased, unless in the manner indicated in the facts above stated; that the administrators were duly cited to appear at the probate court for the county of Bristol, holden on the 6th of August, 1847, to render an account of their administration, and that they did not so appear, but made default; that the judge of probate authorized the present suit; that the widow of the deceased was appointed guardian of said Henry Bennett, during his minority ; and that a demand was made on said Edward Bennett by the plaintiff, three or four months before the citation to the probate court, for the amount supposed to be due the plaintiff from the estate of his father.
    “ If, upon the above facts, the court shall be of opinion, that the condition of said bond has been broken and the same is forfeited, judgment is to be entered accordingly, and such further proceedings shall be had as the court, under the provisions of the statutes, shall order; but if the court shall be of opinion that the action cannot be maintained, the plaintiff is to become nonsuit and defendants to take costs.”
    This case was argued and decided at the last October term.
    N. Morton, for the plaintiff.
    
      H. G. O. Colby, for the defendants,
    cited Coffin v. Jones, 11 Pick. 54; Farnam v. Brooks, 9 Pick. 212; Goldhawk v. Duane, 2 Wash. C. C. 323.
   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.  