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 admin*415istraliou 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.