In a suit on an administrator's bond, Held, on demurrer, that an action for a breach of such bond, in omitting to render an account to the Court of Probate within one year, cannot be maintained unless it be shown that the administrator was cited by the Court to render such account: — thus settling the construction of section 16 of chapter 163 of the Revised Statutes.
BRADLEY, C.J.
In this case a demurrer has been filed by the defendants to the replication of the plaintiffs, upon the ground that, in a suit brought upon this bond, it should be averred, not only that the executor or administrator is to render his account within a year, but that he has also been cited by the Court so to do.
The provision of the statute is, that he shall render such account; that he shall render it within a year. And the bond is given that he will perform that duty. Of course it is competent in the legislature, in addition to prescribing the duty of any officer, also to make any provision which, in its wisdom it sees fit, with regard to the violation of such duty. In this case we consider that the provision of the statute, — "though cited by the court so to do," — being a penal statute, must be construed strictly; and that an action cannot be maintained as provided by the statute, upon such bond, for the benefit of the parties interested, unless such action has occurred, and, of course, unless it is averred in the pleadings.
It is not, perhaps, necessary for the Court, in this case, to decide that our statute is intended to provide for every action that can be brought upon these bonds. It is clear to us that the action in this case is one which has been brought pursuant to, and under, the statute; and if so, it must conform to all the conditions required by the statute.
Demurrer sustained.