#### G. A. WHITFORD, Administrator, v. NORTH STATE LIFE INSURANCE COMPANY.

(Filed 20 September, 1911.)

Executors and Administrators — Removal of Causes — Action by Administrator — Venue.

An. action by an administrator upon a life insurance policy of bis intestate is properly brought in the county where the administrator resides, not necessarily where the bond is filed, the addition of the words, “administrator, etc.,” being descriptive of his title or the capacity in which he sues (Revisal, secs. 424 and 421) ; and Revisal, sec. 421, makes a distinction between actions in which the administrator is sued, for then the action shall'be brought in the county where the bond is filed. Revisal, secs. 419, 421, have no application.

Appeal from Ferguson, J., at June Term, 1911, of Chaven.

This is a motion to remove an action from the county of. Craven to the county of Lenoir for trial.

The admitted facts are:

(1) The plaintiff is Gr. A. Whitford, administrator of W. B. Burgess.

(2) The defendant is a domestic corporation, whose principal place of business is in Lenoir County.

(3) The action is to recover the amount of a life insurance p>olicy.

(4) The intestate Burgess was a resident of Lenoir County at the time of his death.

(5) The plaintiff qualified as administrator in Lenoir County.

(6) The plaintiff, Gr. A. Whitford, is a resident of Craven County.

The motion was allowed, and the qdaintiff excepted and appealed.

Guión & Guidon for plaintiff.

Bouse & Land for defendant.

Allen, J.

The cause of action alleged in the complaint is not one of those provided for in section 419 of Revisal, which *43must be tried in tbe county “in wbicb tbe subject of tbe action, or some part thereof, is situated”; nor is it one of those mentioned in section 420 of Bevisal, wbicb are to be tried in tbe county “where tbe cause or some part thereof arose.”

Tbe section requiring actions against administrators to be instituted in tbe county where tbe bond of tbe administrator is given, has no application, because this is not an action against an administrator, but one brought by him.

As no provision is made elsewhere as to tbe place of trials of actions instituted by administrators, it follows that tbe controversy between tbe plaintiff and tbe defendant is dependent upon tbe construction of that part of section 424 of Kevisal saying: “In all other cases tbe action shall be tried in tbe county in wbicb tbe plaintiffs or tbe defendants, or any of them, shall reside at tbe commencement of tbe action.”

Tbe question is settled when we determine who are tbe parties to tbe record, because if Gr. A. Whitford is tbe party plaintiff, be is a resident of Craven and entitled to sue there.

In our opinion, by proper construction of section 424, in connection with section 421, be is tbe party plaintiff, and tbe addition of “administrator of "W". B. Burgess” to bis name is merely descriptive of bis title or tbe capacity in wbicb be sues. If this is not tbe correct view, and it was tbe intention of tbe Legislature that tbe place where letters of administration were taken out should determine tbe residence of tbe administrator, why is it that provision was not made in section 421 for actions by administrators as well as for actions against them?

Tbe clear inference from the last section is that it was tbe purpose of tbe Legislature to make a distinction between actions by and against administrators, and when it is said that actions against administrators shall be brought in tbe county where tbe bond is filed, and nothing is said as to' actions by administrators, it excludes tbe idea that actions instituted by the administrator are necessarily to be brought in tbe county in wbicb letters are granted.

Tbe ease of Rankin v. Allison, 64 N. C., 674, seems to be in accord with this view. In that case tbe action was brought *44in Caldwell County in tlie name of Jesse Rankin, guardian of John S. McRorie, against two defendants, one of whom was a nonresident of the State and the other a resident of Iredell County. The answer alleged that John S. McRorie was a resident of Iredell County at the commencement of the action. The Court treats the answer as an application for removal, and says: “We might regard the answer in this case as such an application; but then it does not allege that Rankin, the plaintiff of record, resides in Iredell County, and consequently, as for such a purpose the Court can only look to the parties of record, it could not be allowed.” Here there is a direct statement that the Court can only look at the parties of record in deciding where the action shall be tried, and that Rankin, although suing as guardian of John S. McRorie, was the plaintiff of record.

The same rule is stated in Oye., vol. 18, p. 912, as follows: “Actions which are transitory and not local in their nature need not be brought by a personal representative in the county where the estate is being administered.”

We conclude that the order of removal was erroneous, and it is

Reversed.