proceeding be an action at law or a suit in equity;58 and the rule can not be violated by proceeding in a federal instead of a state court.59 And where ancillary administration is had, the right to sue is limited to those to whom administration is granted; thus one of several foreign executors who does not petition for nor qualify under a grant of ancillary administration, is not entitled to join with those who did qualify in prosecuting an action in a local court.60

The incapacity of a foreign executor or administrator to sue in the local courts, existing at the time the action is instituted, is cured by the subsequent grant to him of ancillary letters. The defect may be remedied by an amendment to the complaint so as to show the fact of the ancillary appointment.61

§ 1382. When Domiciliary Representative May Sue in a Foreign Jurisdiction Without First Taking Out Ancillary Letters.

The rule that a foreign executor or administrator can not, in the absence of a statute granting the right, sue in a local court without taking out ancillary letters of administration, applies only to proceedings prosecuted in the

176 N. Y. 377, 98 Am. St. Rep. 689, 68 N. E. 658; Morefield v. Harris, 126 N. C. 626, 36 S. E. 125; In re Crawford's Estate, 68 Ohio St. 58, 96 Am. St. Rep. 648, 67 N. E. 156; Mansfield v. McFarland, 202 Pa. St. 173, 51 Atl. 763; State v. Fulton, (Tenn.) 49 S. W. 297; Terrell v. Crane, 55 Tex. 81; Dickinson v. McCraw, 4 Rand. (Va.) 158; Smith v. Peckham, 39 Wis. 414.

58 Tourton v. Flower, 3 P. Wms. 369; Cassidy v. Shimmin, 122 Mass. 406, 412.

59 Johnson v. Powers, 139 U. S. 156, 35 L. Ed. 112, 11 Sup. Ct. 525. 60 Gilman v. Gilman, 54 Me. 453,

456.

61 Black v. Henry G. Allen Co., 42 Fed. 618, 9 L. R. A. 433; Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103; Henry v. Roe, 83 Tex. 446, 18 S. W. 806.

right of the testator or decedent, not to cases wherein the executor or administrator is a party to the transaction, although in his representative capacity. Where the right of action accrues because of personal transactions, although in his representative capacity, he is entitled to bring suit in his representative capacity without first applying for ancillary letters.62 Thus if a promissory note be given to an executor in payment of the purchase price of the business of the decedent, such executor may sue the payee in a foreign jurisdiction.63

The general rule is that where the cause of action accrues to an executor or administrator after the death of the testator or intestate, whether for property sold or contracts made by him in his representative capacity or because of some tort regarding the estate committed after his appointment, he is entitled to sue in a foreign jurisdiction without first securing ancillary letters.64

62 Moore v. Petty, 135 Fed. 668, 68 C. C. A. 306; Tox v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897; Rucks v. Taylor, 49 Miss. 552; Tittman v. Thornton, 107 Mo. 500, 16 L. R. A. 410, 17 S. W. 979; Morse v. King, 73 N. J. L. 548, 118 Am. St. Rep. 702, 63 Atl. 986; Lawrence v. Lawrence, 3 Barb. Ch. (N. Y.) 71; Tyer v. Charleston Rice Milling Co., 32 S. C. 598, 10 S. E. 1067.

Where an administrator appointed as such in the state of the decedent's domicile, procures a judgment in such state against a resident of another state after appearance and contest of the case by defendant, such administrator may bring suit on the judgment

against the defendant in the state of the defendant's residence, although an ancillary administrator has been appointed in that state; and the fact that the suit is brought by the foreign administrator in his representative capacity is immaterial, his official title being surplusage, which may be disregarded.-Hare v. O'Brien, 233 Pa. St. 330, Ann. Cas. 1913B, 624, 39 L. R. A. (N. S.) 430, 82 Atl. 475. 63 Morse v. King, 73 N. J. L. 548, 118 Am. St. Rep. 702, 63 Atl. 986.

64 Goodyear v. Hullihen, 2 Hughes 492, 10 Fed. Cas. No. 5573; Giddings' Exrs. v. Green, 48 Fed. 489; Doe v. McFarland, 9 Cranch (U. S.) 151, 153, 3 L. Ed. 687; Fox

It is a well established rule that title to the personal effects of a decedent vests in his executor or administrator. A judgment in his favor in his representative capacity secured in the courts of the jurisdiction of his appointment, although for a debt due the decedent, is such personal property that the executor or administrator may enforce the judgment in the courts of another jurisdiction without being required to first secure ancillary letters of administration.65 A negotiable note payable to bearer or payable to the decedent and endorsed by him in blank prior to his death, is held to be such an asset of the estate that the executor or administrator may sue for its collection in a jurisdiction other than that wherein he is appointed. And the same rule has been held to apply where a negotiable note due the decedent did not mature until after his death.67

v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897; Mowry v. Adams, 14 Mass. 327; Wolf v. Sun Ins. Co., 75 Mo. App. 306; Lawrence v. Lawrence, 3 Barb. Ch. (N. Y.) 71; Beckham v. Wittkowski, 64 N. C. 464; Tyer v. Charleston Rice Milling Co., 32 S. C. 598, 10 S. E. 1067.

65 Wilkins v. Ellett, 107 U. S. 256, 27 L. Ed. 718, 2 Sup. Ct. 641; Lewis v. Adams, 70 Cal. 403, 59 Am. Rep. 423, 11 Pac. 833; Barton v. Higgins, 41 Md. 539; Talmage v. Chapel, 16 Mass. 71; Tittman V. Thornton, 107 Mo. 500, 16 L. R. A. 410, 17 S. W. 979; Green v. Heritage, 63 N. J. L. 455, 43 Atl. 698; Moore v. Fields, 42 Pa.

St. 467; Cherry v. Speight, 28 Tex. 503.

9

66 Gage v. Johnson, 20 Me. 437; Knapp v. Lee, 42 Mich. 41, 3 N. W. 244; Robinson V. Crandall, Wend. (N. Y.) 425; Sandford v. McCreedy, 28 Wis. 103.

In the case of a non-negotiable note, or a negotiable note payable to and not indorsed by the decedent, and maturing in his lifetime, suit can not be brought upon it in a foreign jurisdiction by the executor or administrator without first taking out ancillary letters.Knapp v. Lee, 42 Mich. 41, 3 N. W. 244.

67 Giddings' Exrs. v. Green, 48 Fed. 489.

§ 1383. Assignee of Domiciliary Representative May Bring Suit in His Own Name in Other Jurisdictions.

The common law rule is that although the domiciliary administrator can not sue in the courts of another state, he not only has the right to collect assets and debts in another jurisdiction voluntarily delivered or paid to him, but may assign or transfer negotiable choses in action belonging to the estate of the decedent, and thus vest in the transferee or assignee the right to bring suit on the same in his own name in another jurisdiction. The weight of authority is that although a foreign representative has no right as such to prosecute an action in the local courts to recover judgment upon negotiable choses in action, this disability does not affect the right of an individual holding such choses in action by assignment or endorsement to bring suit thereon in his own name.68 And a domiciliary administrator may sell or assign stock owned by the decedent in a corporation located in another

68 Wilkins v. Ellett, 108 U. S. 256, 27 L. Ed. 718, 2 Sup. Ct. 641; Campbell v. Brown, 64 Iowa 425, 52 Am. Rep. 446, 20 N. W. 745; Owen v. Moody, 29 Miss. 79; Matter of Cape May & D. Nav. Co., 51 N. J. L. 78, 16 Atl. 191; Guy v. Craighead, 6 App. Div. 463, 39 N. Y. Supp. 688; Maas v. German Savings Bank, 73 App. Div. (N. Y.) 524, 77 N. Y. Supp. 256; Mackay V. St. Mary's Church, 15 R. I. 121, 2 Am. St. Rep. 881, 23 Atl. 108; Keller v. Alexander, 24 Tex. Civ. App. 186, 58 S. W. 637; Camp v. Simon, 23 Utah 56, 63 Pac. 332; III Com. on Wills-19

Munson v. Exchange Natl. Bank, 19 Wash. 125, 52 Pac. 1011.

Contra: Some authorities deny the above rule, holding that an executor or administrator can not control assets of the estate in another jurisdiction by sale or as signment.-DuVall v. Marshall, 30 Ark. 230; Stearns v. Burnham, 5 Me. 261, 17 Am. Dec. 228; McIntire v. Conrad, 93 Mich. 526, 53 N. W. 829; Morton v. Hatch, 54 Mo. 408, 411; Taylor v. Barron, 35 N. H. 484, 496; Heyward v. Williams, 57 S. C. 235, 35 S. E. 503; Bullock's Admr. v. Rogers, 16 Vt. 294.

state, and such corporation is justified in making a transfer of the stock on its records.69

The above mentioned rule should be limited to negotiable choses in action transferable by endorsement and delivery, and should not apply to bonds or mortgages affecting real property the ownership of which are matters of record where the realty is situated and which record should show a complete chain of title."

§ 1384. Voluntary Payment of Debts or Surrender of Chattels to Domiciliary Representative.

For the protection of local creditors, ancillary administration should be had in the state where assets of a non