Cannon v. . Cannon

DeNNY, J. The only question presented is whether or not the court below committed error in overruling defendant’s demurrer. We think it should have been sustained. It is provided in G. S., 28-176: That “All actions and proceedings brought by or against executors, administrators or collectors, upon any *212 cause of action or right to which the estate is the real party in interest, must be brought by or against them in their representative capacity.” But we have no statutory authority which authorizes a foreign executor or administrator to come into our courts and prosecute or defend an action in his representative capacity. Bank v. Pancake, 172 N. C., 513, 90 S. E., 515; Glascock v. Gray, 148 N. C., 346, 62 S. E., 433; Scott v. Lumber Co., 144 N. C., 44, 56 S. E., 548. Ordinarily when an estate administered in a probate court of another State, and a debtor of such estate resides in this jurisdiction, an action for the collection of such debt cannot be maintained in our courts except by a duly appointed ancillary administrator of such estate. Bank v. Pancake, supra. The ease of Stephens’s Ex’rs. v. Smart’s Ex’rs., 4 N. C., 83, cited by the appellee, has not been followed, and Beckham, Ex’rs. v. Wittkowski, 64 N. C., 465, also relied upon by the appellee, involved a different factual situation. It has been held that a foreign representative may maintain an action on a bill or note belonging to his decedent’s estate, where such representative has the right to sue for the collection of such bill or note in his individual capacity. 34 C. J. S., 1259. However, there seems to be no exception to the rule, that where a note was made payable to the decedent and matured before his death, as in the instant case, an action for the collection of such note must be instituted by the representative of the, estate in his or her representative capacity. And in the absence of statutory authority, an administrator or executor cannot maintain an action in his representative capacity in the courts of any State other than the one from which he derived his appointment. 108 A. L. R. Anno., 1282; 34 O. J. S., 1259; 21 Am. Jur., 857; McIntosh N. C. Practice & Procedure, 234; Restatement of the Conflict of Laws, Chap. 11, Sec. 507; "Woerner on American Law of Administration, Yol. 1, 558; Schouler on Wills, Executors and Administrators, Yol. IY, Sec. 3501. “A foreign executor or administrator cannot sue in this State, although we have one old case to the contrary” (citing Stephens’s Ex’rs. v. Smart’s Ex’rs., supra); Mordecai’s Law Lectures, Chap. 36, p. 1194. Even so, a simple debt due a decedent’s estate, which is being administered in a foreign jurisdiction, constitutes a sufficient asset upon which to base a proceeding for the appointment of an ancillary administrator. In re Warburg’s Estate, 223 N. Y. S., 780; Hensley v. Rich, 191 Ind., 294, 132 N. E., 632; Vogel v. New York Life Ins. Co., 55 E. (2), 205. The debt is an asset where the debtor resides, even though a note has been . given therefor, without regard to the place where the note is held or where it is payable. Wyman v. United States, 109 U. S., 654, 27 Law Ed., 1069. The demurrer should have been sustained, and the ruling of the court below is Reversed.