| N.C. | Mar 28, 1962
The sole question presented on this appeal is whether the court erred in denying defendant’s motion that this action be removed to Beaufort County for trial.
G.S. 1-78 requires that all actions against executors and administrators in their official capacity, unless otherwise provided by statute, be instituted in the county where the letters testamentary or letters of administration are issued. Wiggins v. Trust Co., 232 N.C. 391" court="N.C." date_filed="1950-09-27" href="https://app.midpage.ai/document/wiggins-v-finch-1314736?utm_source=webapp" opinion_id="1314736">232 N.C. 391, 61 S.E. 2d 72, and cases cited; McIntosh, N. C. Practice and Procedure, Second Edition (Wilson), § 804.
Plaintiff alleges defendant appropriated to her own use certain funds; that these funds were owned solely by Claud T. Cherry and constituted assets of his estate; and that plaintiff, to whom Cherry left “one-half of his entire estate,” is entitled to recover from defendant, individually, one-half of the amount of the funds so appropriated by defendant.
Sadie Cherry Singleton, individually, is named as sole defendant in the summons and in the caption of the complaint. In paragraph 6 of the complaint, in a subordinate clause, plaintiff refers to “the administration of his (Claud T. Cherry’s) estate by the defendant as Executrix.” Too, plaintiff prays that “she have and recover of the defendant the sum of $4,640.37, with interest thereon from the date of the filing of the Final Account by the Administratrix of the Estate of Claud T. Cherry.” Except as stated, the complaint contains no reference to defendant’s status, now or formerly, as executrix or as
In Montford v. Simmons, 193 N.C. 323" court="N.C." date_filed="1927-03-09" href="https://app.midpage.ai/document/montford-v--simmons-3644460?utm_source=webapp" opinion_id="3644460">193 N.C. 323, 136 S.E. 875, cited and stressed by defendant, the record shows the action was instituted in Harnett County against J. W. Burton, Administrator of the estate of William Montford, deceased, and certain individuals. Burton was a resident of and qualified as such administrator in Onslow County. In the summons, caption and complaint, Burton was designated as such administrator. The plaintiffs asserted that they were, and the individual defendants were not, entitled to certain insurance funds collected by said administrator and then held by him for distribution to the persons lawfully entitled thereto. It was held that plaintiffs’ action was against J. W. Burton, Administrator of the estate of William Montford, deceased, in his official capacity; and that said administrator, pursuant to C.S. 465, now G.S. 1-78, was entitled, as a matter of right, to have the action removed to Onslow County.
“The action is against the representative in his official capacity if it: (a) asserts a claim against the estate; (b) involves the settlement of his accounts; or (c) involves the distribution of the estate.” McIntosh, op. cit., § 804; Montford v. Simmons, supra.
Plaintiff’s action is to recover as beneficiary under Claud T. Cherry’s will. Unquestionably, if she had instituted such action against defendant as executrix or as administratrix of the estate of Claud T. Cherry, such action, whether maintainable or not, would have been an action against an executrix or administratrix in her official capacity. However, plaintiff did not institute such action.
Whether the complaint alleges facts sufficient to constitute a cause of action against defendant, individually, is not presented by this appeal. The question now presented relates solely to venue.
True, the fact that an executor or administrator is sued, and the defendant is named' as such executor or administrator in the summons, caption and complaint, does not entitle such defendant to an order of removal if the complaint discloses the alleged cause of action is not against such executor or administrator in his official capacity. See Roberts v. Connor, 125 N.C. 45" court="N.C." date_filed="1899-10-17" href="https://app.midpage.ai/document/roberts-v--connor-3651874?utm_source=webapp" opinion_id="3651874">125 N.C. 45, 34 S.E. 107, where, in an action against “H. G. Connor, Executor of A. Branch, Deceased, Doing Business as Branch & Co., Bankers,” the defendant’s motion for removal was denied. But where plaintiff’s action is against defendant, individually, and not against her as executrix or as administratrix in an official capacity or otherwise, whether, upon the facts alleged, plaintiff has a cause of action against the personal representative of the Claud T. Cherry estate, is not presented for decision. Suffice to say, plaintiff, in this action, has not sued such personal representative.
Based on the fact that plaintiff, in this action, has not sued the executrix or administratrix of the estate of Claud T. Cherry in an official capacity or otherwise, the order of the court below is affirmed.
Affirmed.