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.