#### RUFUS STAMPS AND WIFE *vs.*SAMUEL MOORE, ADM’R.

An Executor in Virginia, has no right to assent to a legacy when the property is situated in this State, without making probate, and taking letters testamentary in our courts.

*81This was an action of detiitue, tried before bis Honor Judge Bailey, at the Fall Term, 1854, of Caswell Superior Court.

The action was brought for certain slaves bequeathed to the plaintiffs in the will of Alexander Moore, of Halifax county, in the State of "Virginia-. The slaves in question, at the time of the making of this will, and afterwards, till the testator’s death, and since that time, up to the bringing of this suit, were in the county of Caswell, in this State, in the possession of defendant or his intestate, and never were in the possession of the executor of Alexander Moore.

The deposition of the executor was offered to prove that he had assented to the legacy of the plaintiffs: the defendant denied that such assent was proved by the deposition, but insisted that if such were its effect, that an assent could not be given by an executor residing in Virginia, under a will there proven, and not proven in North Carolina, the property being in this State. The question of law was reserved by the Court with the consent of the parties, with leave to enter a nonsuit in case his Honor should be of opinion against the plaintiff, on the question reserved.

Verdict for the plaintiffi.

Afterwards, upon consideration of the question reserved, his Honor being of opinion with the defendant, set aside the verdict and ordered a nonsuit. Plantiffs appealed.

Norwood, for the plaintiffs.

Morehead, for the defendant.

PeaesoN, J.

One domiciled in the State of Virginia, dies there, leaving a will, appointing an executor who makes probate of the will and takes letters testamentary in pursuance of the law of that State. Does his assent vest the legal title in a legatee in reference to property, which before, and at the death of the testator, was situate in this State? Story’s “ Conflict of laws,” sec. 513 :. “It has hence become a general doctrine of the common law, recognised both in England and America, that no suit can be brought by or against any foreign executor or administrator in the courts of the country in vir*82tue of bis foreign letters testamentary or of administration. But new letters of administration must be taken out, and new security given according to the general rules of law prescribed in the country where the suit is brought. The right of the foreign executor or administrator to take out such new administration, is usually admitted, as a matter of course, unless some special reasons intervene; and the new administration is treated as merely ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them. Still, however, the new administration is made subservient to the *rights of*creditors, *legatees*and *distributees*resident within the country, and the residuum is transmissible to the foreign country only, when the final account has been settled in the proper domestic tribunal upon the equitable principles adopted in its laws.”

The same doctrine is held in *Hyman*v. *Gaskins, 5*Ired., 267, and in *Alvaney*v. Powell, decided at this term, (see Eq. No.) where the subject is fully discussed, so as to make it unnecessary to repeat it.

The result is this : the executor in "Virginia could not maintain a suit in this State, for the slaves alleged to be detained, without making probate and taking letters testamentary in the proper court of this State; consequently, he cannot, by his “ assent,” confer upon a legatee a right to do that which he could not do himself.

Creditors in this State would have no protection, if it was in the power of an executor in Virginia to assent to a legacy of property situate here, so as to vest the legal estate in the legatee: Nor would legatees be able to enforce their rights to an abatement *pro -rata*if the estate should not be sufficient to satisfy the debts and leave enough for the payment of legacies.

*We*put our decision upon the ground that an executor in Virginia has no right to assent to a legacy when the property is situate in this State, without making probate and taking letters testamentary in our courts; and for that reason do not advert to the fact that the executor in Virginia, according to the proofs, never did assent. He says, in his deposition, that *83be would have assented to the legacy, but for the fact, that he never considered that he, as an executor in Virginia, had any thing to do with property in North Carolina.

This conclusion of his, as we have seen, is fully supported by the authorities.

Judgment affirmed.

Pee CueiaM.