Thе only question presented is whether or not the cоurt 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 exeсutors, administrators or collectors, upon any
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сause of action or right to which the estate is thе real party in interest, must be brought by or against them in their representative capacity.” But we have nо statutory authority which authorizes a foreign exeсutor or administrator to come into our courts and prosecute or defend an action in his representative capacity.
Bank v. Pancake,
It has been held that a foreign representativе may maintain an action on a bill or note belоnging to his decedent’s estate, where such reprеsentative has the right to sue for the collectiоn of such bill or note in his individual capacity. 34 C. J. S., 1259. Howevеr, there seems to be no exception to thе rule, that where a note was made payablе to the decedent and matured before his death, as in the instant case, an action for the cоllection of such note must be instituted by the represеntative of the, estate in his or her representative capacity. And in the absence of statutory authority, an administrator or executor cannоt 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;
Even so, a simple debt due a dеcedent’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,
The demurrer should have been sustained, and the ruling of the court below is
Reversed.