
    Sutton Byrd, Administrator of Abednego Porter, vs. George Holloway, Administrator de bonis non of Nancy Porter.
    An administrator de bonis non can maintain a suit only for those articles which remain unadministered.
    If an. administrator, upon the settlement of his accounts, is indebted to the estate of his intestate, the creditors or distributees may sue for the balance, the administrator de bonis non cannot.
    In error, from the probate court of Franklin county; Hon. James M. Jones, judge.
    The record recites, that at the January term, 1842, of the probate court of the county, on application of George Holloway, administrator de bonis non of Nancy Porter, deceased, it was ordered that Sutton Byrd, administrator of Abednego Porter, deceased, who was the administrator of said Nancy Porter, be cited to appear at the next term of the court and show cause, if any he could, why he should not pay over the amount due on a final settlement of the accounts of the said Abednego Porter, as administrator aforesaid to said Holloway, administrator de bonis non of said Nancy Porter. Citation, issued accordingly, was executed, and at the February term, on the second day of the term, the court made the following decree, viz.: “It is ordered, considered, and adjudged by the court that the said Sutton Byrd, administrator, as aforesaid, pay over to the said George Holloway, administrator de bonis non, as aforesaid, the amount due on final settlement of the accounts of said Abednego Porter, as administrator of Nancy Porter, deceased, amounting to $8501 84, after deducting $6155 37|, already paid over.
    These proceedings constituted the whole record.
    From this decree Byrd prosecuted a writ of error.
    
      Montgomery and Boyd, for plaintiff in error.
    The proceedings in this case were all defective, both in form and substance. The petition was not in writing, and on its face showed no demand of any particular amount, or any judgment, allowance or decree, establishing any balance remaining in the account of the first administrator. If taken for confessed, and this is the strongest point of view for the petitioner, he was not entitled to any decree for any specific sum. ' Without a pro confesso, he was not, of course, entitled to any decree.
    It was also an error in form, to claim anything whatever of Porter’s administrator, without an allegation that he had settled the account of his administrator in the probate court. For if the account was settled by Porter himself, in his lifetime, his administrator had no further connection with it. This point was fully discussed and settled in the case of Kelsey v. Smith, 1 How. 68; also in case Judge of Probate, use, Spc. v. Phipps and Wife. See 6 How. R. 87; 1 Ibid. 87; 5 Ibid. 59. But the substantial error is, that the right and the forum were both misconceived in the petition. The administrator de bonis non of Mrs. Porter has no right to the money balance remaining in the account of the first administrator. It was the result.of administration, and did not remain in kind. But if such right existed, certainly the claim would not be enforced in the probate court against the administrator, of this administrator. The proper forum would be the circuit court. For it would be like any other claim against the estate of the first administrator, and for which his administrator could be sued at law, and if he had assets, be compelled to pay, and not otherwise. The citation and petition both show, in effect, that Porter settled his administration account before he died. His administrator, then, is in no way liable in the probate court on the subject-matter of that settlement.
    If Porter were still living, and had resigned his office after this ■supposed settlement, he could not be reached in this way. Much less is his administrator liable. 1 How. 93 ; Rev. Code, 51, § 85.
    The principles of this case have been so often settled by this court, that we do not think it necessary to discuss it further. •
   Mr. J ustice Clayton

delivered the opinion of the court.

At the January term, 1842, of the probate court of Franklin county, George Holloway, administrator de bonis non of Nancy Porter, deceased, caused a citation to be issued, “ requiring Sutton Byrd, administrator of Abednego Porter, deceased, who was administrator of Nancy Porter, deceased, to appear at the next term of the court, and show cause why he should not, as administrator as aforesaid, pay over the amount due on a final settlement of the accounts of said Abednego Porter, deceased, as administrator of Nancy Porter, deceased, to George Holloway, administrator de bonis non of said Nancy.”

The citation was executed, Byrd made no appearance or defence, and at the February term, 1842, an order was made, directing him to pay over to .Holloway the amount due on final settlement of the account of Abednego Porter, deceased, being some twelve hundred dollars. From this order a writ of error was sued out.

It was decided at a very early period by this court, that an administrator de bonis non can maintain a suit only for those articles which remain unadministered. Kelsey v. Smith, 1 How. 67; Prosser v. Yerby, Ibid. 87. These decisions have not been departed from. They establish the principle, that if the first administrator had made a settlement of his account, and shown an indebtedness upon his part to the estate, the creditors or distributees might sue for this balance, but the administrator de bonis non could not. It follows that the order of the probate court, upon the petition of Holloway, was erroneous.

It will be reversed', and the petition dismissed.  