20 CASES IN THE SUPREME COURT Scarborough vs. State use, etc. [DECEMBER SCARBOROUGH VS. STATE USE, ETC. The failure of an executor or administrator to present his account, annually, for settlement in the probate court, as prescribed by the statute, is a breach of the condition of his bond, for which any person interested in the estate may maintain an action: but by no rule of construction can it be held, that the statute fixes the measure of damages at the entire value of the estate in the hands of the executor or administrator. A person interested in the estate may recover such damages as he has sustained by the failure of the administrator to make his settlement. If no special dam-ve is alleged and proven, he can then recover only nominal damages. Error to Chicot Circuit Court. Hon. JOHN C. MURRAY, Circuit Judge. GARLAND & RANDOLPH, and STILLWELL & WOODRUFF, for plaintiffs. Mr. Justica COMPTON delivered the opinion of the court. This was an action of debt for the use of the distributees of William Scarborough, deceased, on an administration bond. At the trial in the court below it was proven that the administrators filed in the probate court, on the 29th day of January, 1857, their account current for settlement, which, after being continued as prescribed by law, was confirmed by the court, showing a balance in their hands of $2,843.33 3-4 ; and that up to the time of the trial—a period of four years—no other settle_ ment had been made. Upon these facts, the circuit judge instructed the jury that if they believed from the evidence that the administrators did not make annual settlements of their administration, they must find for the plaintiff the amount of the estate shown to be in their hands. This instruction was erroneous. By sec. 122, chap. 4, Gould's Dig., it is made the duty of every executor or administrator, at the first term of the probate court,
OF .111E STATE OF ARKANSAS. 21 TERM, 11362.1 Scarborough 193. State use, etc. after one year from the date •of his letters, and at -the corresponding term, of the court every year thereafter, to present to said court an aceount torrent, in Which lie shall charge himself with the whole amount of the estate, and credit himself With all sums ef money lawfully expended in .settling the same ; and though an omission to diseharge this duty is a 'breach of the condition of his bond, for -which, under Sections 139 and 191, of the same chapter of the Digest, any person interested inte eaate may maintain an action, 'only suCh damage as niay 'have been sustained hy reason of the failure to settle, at the -sfated periods prescribed by law, can be recovered. We know no rule of construction that would warrant us in holding that the statute, , above referred to, fixes the measure of damages At the value of the -entire estate ascertained to be in the hands of the executor or administrator. If no specific amount of damage is shown to have been sustained, the party injured is entitled to nominal damage only. There was no breach assigned in the declaration, alleging mismanagement and waste of the estate ; but if there had been, and the jury had found the breach true, the value of so much :only of the estate as was mismanaged and wasted, could have been recovered. The instruction moved in behalf of the defeadants, had no application to the case made upon the pleadings and evidence, and was, therefore, properly refused. For the error indicated, the jUdgment must be reversed, and the cause remanded for further proceedings.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.