Rowland against Isaacs, 15 Conn. 115

Waite, J. The only question, arising upon this motion, relates to the amount of damages. The finding of the jury conclusively shews, that there has been a breach of the con- - dition of the bond. The recovery of damages then follows as a matter of course. By the rules of the common law, those damages would be the whole penalty of the bond; and the defendant, to obtain a redaction, would be obliged to resort to a court of chancery. 2 Bla. Com. 341.

Our statute provides, that in such case, when the trial is by the jury, they “ shall find and assess such damages as are justly and equitably due.” Stat. 50. tit. 2. s. 60. What damages, then, are “ justly and equitably due,” in this ease ? The defendant, in his pleas, has admitted, that on a settlement made by the administrator with the court of probate, on the 30th day of April, 1828, there had been received by him 292 dollars, 38 cents, more than he had expended in payment of debts, and in defraying the expenses of settling the estate. He further alleged, that he had paid over that balance to the heirs.

But that allegation was denied, by the plaintiff, and by the jury was found against the defendant. If, then, there was such balance in the hands of the administrator, which had never been paid over to the heirs, what right have the representatives of the administrator, or the defendant, to retain it 1 The pleas admit, that the administrator was not entitled to it; and that it belonged to the two grand-children of the deceased, who were his heirs at law. It is said, no order was ever made by the court of probate for the distribution of this balance, or the payment of it to the heirs.

But it does not appear, that the administrator ever requested the court to make any such order. It is not usual for our courts of probate to make orders in relation to the settlement of an estate, unless requested by the proper person. It was the duty of the administrator, in this case, to apply to the court for all such orders as he found necessary to close the settlement of the estate. Warren v. Powers, 5 Conn. Rep. 383. And the defendant cannot avail himself, in his defence, of any neglect of duty on the part of the administrator.

It is further said, that during a part of the time, since the property of the deceased came into the possession of the administrator, the heirs were minors, and had no guardian; and that no demand was ever made upon him for the balance belonging to them. The question is not, whether the omission to pay the heirs, under such circumstances, would constitute a breach of the condition of the bond ; but whether, after there has been such a breach, and the plaintiff’s right to recover damages established, those circumstances would justify the defendant in still retaining that balance.

We can see no reason why they should have that effect. The judge, in the prosecution of this suit, acts as trustee for those persons beneficially interested in the estate. And it will become his duty to see that whatever sum he recovers, is disposed of according to law.

It is proper, therefore, that this balance should go into the possession of the court of probate, for the benefit of those legally entitled, rather than remain either in the possession of the representatives of the deceased administrator, or of the defendant, his surety ; especially, after the death of the administrator, when he can do nothing more in relation to the settlement of the estate. As that balance never belonged to him, his estate ought not to be increased by it. * A further objection is urged against the instruction of the judge on the circuit, in relation to interest.

It does not appear, from the motion, that any claim was made on the part of the defendant, that he was not liable to interest, if more than nominal damages could be recovered. We discover nothing in the case, which will exonerate him from that liability. If, indeed, the defendant had shewn, that the administrator had retained the property in his hands, without converting it to his own use, solely because there was no one legally qualified to receive it from him, he would not be chargeable with interest.

But if he had used and treated the property as his own, and converted it to his own use, a different rule applies. Now, the defence is placed upon the ground of payment to the heirs, which is found to be untrue. The nature of the defence, and the long time that has elapsed since the settlement with the court of probate, furnish a fair presumption that the administrator converted the balance in his hands to his own use. We are, therefore, satisfied with the instructions given to the jury, by the judge ; and that a new trial ought not to be granted. In this opinion the other Judges concurred.

New trial not to be granted.