The first replication assigns as a breach of the bond that the administrator did not render an account within a year from his appointment. Failure to account merely is not a breach of a probate bond. The replication is defective, in that it does not aver that some steps were taken in the probate court to compel an accounting. The remedy for not accounting is, first, by obtaining an order of the probate court to account; and until such order, and a failure to comply with it, there is no breach of the bond. Hurlburt v. Wheeler, 40 N.H. 73, 75; Judge of Probate v. Adams, 49 N.H. 150; Gookin v. Hoit, 3 N.H. 392; Judge of Probate v. Briggs, 5 N.H. 66.
The second replication is bad, because it does not aver that the report of the commissioner of insolvency, allowing the plaintiff's claim, had been accepted by the judge of probate, and an order of payment made, which the administrator, having assets, had failed to comply with. There was no legal breach of duty on the part of the administrator in not paying the claim, until after the acceptance of the report and an order for payment.
The third replication is defective, in that it does not aver that the claim of Adams, the plaintiff in interest, had been established in any way, so that a refusal of the administrator to pay it would be a breach of his bond. Judge of Probate v. Locke, 6 N.H. 396.
The issue joined on this replication is immaterial. The real issue is, Was there a breach by Couch of his administration bond? The fact that Couch had not paid the Adams note on request did not necessarily involve a failure of duty or a breach of the bond. If the estate was administered in the insolvent course, the failure to pay the note was not of itself a breach of the bond, and the replication should have stated whether the estate was settled as solvent or insolvent; or, the defendant, if he chose, might have rejoined the fact of a settlement in the insolvent course.
The fourth replication is bad, for the same reasons as the second, — it does not allege any breach of the bond.
Case discharged.
FOSTER, J., did not sit: the others concurred. *Page 41