The principal defendant is an administratrix on an insolvent estate, which had not personal property enough to pay the expenses of administration. The inventory showed no personal assets, but returned real estate valued at $125. The inquiry is whether an action can be maintained on the bond of the administratrix for her failure to settle an account within six months after a report was made by the commissioners of insolvency.
The administratrix contends that she is protected from liability by the statute (R. S., c. 66 § 2,) which provides that, where an estate is not sufficient to pay more than the expenses of administration and claims of the privileged classes, an administrator is exonerated from making a representation of insolvency. The statute relied on is not quite applicable to the facts of the present case. It was necessary to render an account or report *226of some kind, from which to ascertain whether the real estate should or not be sold for the payment of debts. The case does not disclose that there would be nothing for the common creditors after converting the real estate into assets.
The next ground taken in defense is that no action can be maintained on the bond until the administratrix had been cited by the probate court to render an account; the defendants, in support of this position, relying on R. S., c. 72, § 16, and on several reported cases among which is that of Gilbert v. Duncan, 65 Maine, 469. An examination of the cases referred to discloses that all of them involved the settlement of solvent estates, — not insolvent estates. It may not be easy to appreciate any reason for the distinction, but it was one of the rigors of the old common law, and finds a survival in § 21, c. 66, R. S., which declares that it shall be a breach of his bond for an administrator to neglect to settle his account for more than six months after the report on claims is made. The terms of the statute are absolute. Dickinson v. Bean, 11 Maine, 50.
What must the damages be ? The plaintiff contends that his whole debt is recoverable, about $1200, and cites the case of Dickinson v. Bean, ante, in support of his contention. Such would, no doubt, be the result if the doctrine of that case held good at this late day. Rut that case was determined under the statute of 1821, which is worded very differently from the statute of to-day. That statute, founded on the older Massachusetts enactments, relentlessly demanded payment of a creditor’s whole debt for what might be no more than a technical shortcoming of the administrator. This terrible penalty was, however, abolished by an act passed on February 26, 1833. The present statute merely prescribes the duty but affixes no penalties for a breach.
In the present instance the damages must be nominal. No one sustains any real injury. It is a technical default only. The judgment must be for the amount of the penalty of the bond; execution to issue for one dollar damages.
Defendants defaulted.
Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.