
    Thomas R. Johnson, Adm'r d. b. n. of Rinaldo Johnson, vs. Farmers Bank of Maryland, and others.
    An administrator de bonis non, has no right to proeeed for the recoyery of money belonging to the estate of the intestate, and in the hands of the first administrator at the time of his death, without first obtaining an order from the orphans court, as required by the act of 1820, oh. 174, through which act alone his right to maintain an action therefor is derived.
    Appeal from the Equity Side of the Circuit Court for Prince. George’s county.
    Joseph Kent became administrator de bonis non of Rinaldo Johnson in 1816, and died in 1837, without, as is alleged by the appellant, settling up the estate, and having in his hands money belonging thereto. Nothing further was done in reference to this estate until the 4th of November 1847, when letters of administration de bonis non were duly granted thereon to the appellant. The real estate of Kent had, in the meantime, been sold, under a decree in chancery, for the payment of his debts, and a portion of the proceeds still remaining in court undistributed, the appellant, in July 1850, as he alleges, filed his claim for a dividend, which was resisted by the appellees, other creditors of Kent.
    The claim thus filed by the appellant, as administrator d. b. n. of Rinaldo Johnson, states, that by the last administration account rendered in the orphans court by Kent, as administrator d. b. n. of said Rinaldo Johnson, there appears a balance due the estate of $2508.14; that on the 17th of January 1820, a bond was executed by John Johnson to Kent, “administrator of Rinaldo Johnson,” for $4700, payable in three yearly instalments, with interest, on which there was paid to Kent, in 1820, the sum of $1100, and for the residue of the debt a judgment was recovered by Kent in 1823, and on this judgment the sum of $4703.04 was paid to him, about the 11th of November 1833. It is for the balance thus appearing to be-due by this administration account, and for the sums so received, upon this bond, that this claim was filed.
    
      The defences sot up by the appellees to this claim, are, 1st, that it was not sufficiently proved; 2nd, limitations, lapse of time, and laches; and 3rd, payment by Kent, in his life time, to the distributees of Rinaldo Johnson, of all sums due them from said estate, and full settlement thereof.
    The court (Grain, J.) passed an order disallowing and rejecting the claim, and from this order the claimant appealed.
    The cause was argued before Le Grand, C. J., Ecclestqrí and Bartol, J.
    
      Oliver Miller and Chas. P. Mayer for the appellant:
    The act of 1820, ch. 174, sec. 3, gives authority to an administrator d. b. n. to recover not only the unadministered assets remaining, in specie, in the hands of the deceased administrator at the time of his death, but also “all the money in the hands of such deceased executor or administrator as such.” The claim which the appellant, the administrator d. b. n., prefers in this case, is for money in the hands of Kent, in his capacity of administrator of Rinaldo Johnson. The Supreme Court of the United States, in construing this very act of 1820, in an opinion delivered by Chief Justice Taney, in the case of De Valengin's Adm'r vs. Duffy, 14 Pet., 291, say: “The money now in controversy, being lawfully in the hands of Neale, in his representative character, the abrmnistrators de bonis non are entitled to UP And the same construction is placed upon this act by the Court of Appeals of this State, in the case of Gardner & Hughes vs. Simmes, 1 Gill, 428. These authorities, therefore, clearly show, that by this act of Assembly, the title t.o this money was vested in the appellant. The only remaining question then is, whether he could pro-peed to recover it in this case. It is objected by the appellee, that he could not do so without previously obtaining an order from the'orphans court, under the 3rd section of the act of 1820, ch. 174. But it will be observed, that we are not proceeding against the bond of the administrator, or the bond of bis executor or administrator, (the only case in which by that pet it is necessary to procure such an order,) but against the 
      estate of the administrator himself, which lias been sold by a decree in chancery for the payment of Jais debts, and the fund now in a court of equity. The act of Assembly has vested the title to this money in the appellant; and it cannot be necessary, in order to assert that title in a court of equity, against a fund in court, to do more than file the claim, prove it, and show title in the claimant.
    
      Alex. Randall and Thomas G. Pratt for the appellees:
    Under the act of 1798, ch. 101, sub-ch. 14, sec. 2, an administrator d. b. n., could only recover such assets of the original intestate as remained in specie; he could not recover for property wasted or converted by the first administrator. The act of 1820, ch. 174, confers upon the administrator d. b. n., only a limited or qualified right to the assets therein specified, and does not vest the title to such assets in him, or give the right of possession to him, except upon the order of the orphans court, and no such order having been obtained in this case, the appellant is not entitled to maintain this suit. 3 Bland, 563, 580, Neale vs. Hagthrop. 5 Gill, 228, West vs. Chappell.
    
    
      Note. The argument upon the other points on both sides, need not be stated.
   Le Grand, C. J.,

delivered the opinion of this court.

Apart from all considerations of want of proof, lapse of time, laches and limitations, we think the order appealed from ought to be affirmed, because the claimant has no right to maintain the proceeding. Neither at common law, nor under our statute of 1798, chapter 101, had an administrator de bonis non, the right to. claim property situated as is that which is the subject of the present contest. His right to maintain an action for such property, is derivable entirely through the act of 1820, ch. 174, which requires an order of the orphans court, as a necessary preliminary step to the maintainance of such an action by an administrator de bonis non. That right has not been given in the present instance, and (judging from the circumstances and great lapse of time, characterizing the administraliou of tbe estate of Rinaido Johnson,) it is but fair to presume, that were application now to be made to the Orphans court, for the authority permitted by the act of 1820, it would be refused.

Order affirmed with costs.  