#### HENRY ROSE v. M. *K.*PATTERSON.

(Filed 25 September, 1940.)

Executors and Administrators § 30b: Venue § lb — Action held against defendant individually as legatee and devisee and not in her capacity as executrix.

Judgment was rendered against the estate of plaintiff’s deceased guardian for money due the guardianship estate. After reaching his majority plaintiff instituted this action alleging that defendant as executrix of the deceased guardian had paid over to herself, as sole devisee and legatee, money sufficient to discharge plaintiff’s claim. *Held,:*The action is not against defendant as executrix but against her individually on a liability imposed upon her by statute as legatee and devisee, O. S., 59, and defendant’s motion to remove from the county of plaintiff’s residence, O. S., 469, to the county in which she qualified as executrix, was properly denied.

*213Appeal by defendant from *Warlich, J.,*at June Civil Term, 1940, of BUNCOMBE.

Civil action to recover of defendant for property allegedly received by her as sole legatee and devisee under the last will and testament of A. S. Patterson, deceased — heard upon motion of defendant for change ■of venue.

Plaintiff alleges these pertinent facts : On 19 May, 1926, A. S. Patterson was appointed, in Buncombe County, North Carolina, guardian of plaintiff, a minor, resident of said county, and acted as such until the date of his death on 9 December, 1933. On 5 April, 1934, Garland A. Thomasson was appointed and qualified as guardian of plaintiff and acted in that capacity until the plaintiff became twenty-one years of age on 10 March, 1939.

Under the last will and testament of A. S. Patterson, deceased, .admitted to probate in Swain County, North Carolina, M. K. Patterson, the defendant herein, was named as executrix and sole legatee of all personal property and devisee of all real property belonging to the testator at the time of his death. M. K. Patterson qualified as executrix in Swain County. In 1936, upon objection to report, dated 26 February, 1935, filed by M. K. Patterson, executrix as aforesaid, purporting to be .a final account of the guardianship of A. S. Patterson as guardian of Henry Rose, minor, it was ascertained by the clerk of Superior Court of Buncombe County that there was a balance of $1,559.25 due to the ward. Subsequently, in an action in the Superior Court of Buncombe County entitled “State of North Carolina, *ex rel.*Garland A. Thomasson, ■Guardian of Henry Rose, Minor, *v.*M. K. Patterson, Executrix of A. S. Patterson, Deceased, *et*aljudgment was rendered at the June Term, 1938, in favor of the plaintiff and against the defendant for the said sum of $1,559.25, with interest. To motion of plaintiff therein for leave to issue execution under this judgment defendant therein by answer asserted -that she, as executrix, had fully administered the estate of'A. S. Patterson and had filed final report which was approved by the clerk of Superior Court of Swain County, on 12 December, 1936. Thereupon, motion of defendant therein to remove the action to Superior Court of Swain ■County for further proceeding was allowed. Thereafter plaintiff withdrew motion for leave to issue execution. Subsequently, on 8 December, 1939, the plaintiff, who was then twenty-one years of age, and resident of Buncombe County, instituted the present action, in Superior Court of said county, and upon information and belief alleges, *inter alia,*“that •defendant as the sole legatee and devisee under the last will and testament of A. S. Patterson, deceased, received from herself as executrix of said estate and has taken into her possession and holds the same as "her own, assets sufficient to pay off and discharge the debt owing to -plaintiff.”

*214In apt time and after notice defendant filed a motion for tbe removal of tbe action, as a matter of right, from tbe Superior Court of Buncombe County to tbe Superior Court of Swain County for trial for tbat tbe action is based upon a claim against tbe estate of A. S. Patterson, deceased, and involves a settlement of tbe accounts of tbe defendant, M. K. Patterson, as executrix of tbe will of said A. S. Patterson, and tbe distribution of funds in ber bands.

Tbe clerk of Superior Court, “after consideration of tbe facts alleged in tbe complaint,” finding tbat plaintiff is a resident of Buncombe County and being of opinion tbat tbe action is not one against tbe executrix in ber official capacity, but tbat plaintiff is seeking to recover against tbe defendant for property wbicb plaintiff alleges sbe, as sole beneficiary, received from tbe estate of testator, and which should have been administered and paid on bis debt against tbe estate, denied tbe motion of defendant. Upon appeal to him, tbe judge of Superior Court approved and affirmed tbe order of tbe clerk. Defendant appeals to Supreme Court and assigns error.

*8. G. Bernard and Parker, Bernard & Parker for plaintiff, appellee.*

*Edwards & Leatherwood and Jones, Ward & Jones for defendant, appellant.*

WiNBOrne, J.

Tbe judgment below is correct. Tbe record discloses tbat this action is not against M. K. Patterson in ber official capacity as executrix of tbe last will and testament of A. S. Patterson, deceased, but is against ber individually. While plaintiff has a judgment, against tbe estate of tbe testator, be seeks to bold tbe defendant liable personally for tbe value of such property of tbe estate as sbe, as legatee and devisee under tbe will, has received. It is alleged that sbe, individually, has received from herself as executrix of said will, and “bolds as ber own,” assets sufficient to pay off and discharge tbe debt owing to plaintiff. If defendant has received any such property the statute (O. S., 59) makes ber liable therefor to tbe creditors of tbe estate to tbe limit provided in succeeding sections. C. S., 60, 61, 62, 63 and 64. Hence, plaintiff, being creditor of tbe estate, is entitled to choose tbe county of bis residence as tbe forum for tbe trial of tbe action. C. S., 469. *Craven v. Munger,*170 N. C., 424, 87 S. E., 216.

Tbe cases of *Perry v. Perry,*172 N. C., 62, 89 S. E., 999; *Lumber Co. v. Currie,*180 N. C., 391, 104 S. E., 654; and *Montford v. Simmons,*193 N. C., 323, 136 S. E., 875, upon which defendant relies, are distinguishable from tbe case in band.

Affirmed.