#### J. S. H. CLARK LUMBER COMPANY v. MRS. MARY E. CURRIE, Executrix, and J. L. CURRIE LUMBER COMPANY.

(Filed 17 November, 1920.)

Executors and Administrators — Actions—Venue—Removal of Causes.

Where the personal representative is sued and it does not appear from the complaint whether the action was brought against him as executor or trustee under the will of the deceased, the presumption is that he was sued in his capacity as executor, and the estate is in some way sought to be charged; and when the action is brought outside of the county wherein the defendant had qualified, it is in proper proceedings aptly brought, removable to the county wherein he has duly qualified, provided either he or the surety on his bond lives therein.

Walker, J., concurs on ground different from that stated in the opinion of the Court, in which opinion Allen, L, concurs.

Civil ACTION pending in the Superior Court of AnsoN, heard by McElroy, J., at October Term, 1920, upon a motion of the defendant to remove the cause to the county of Mooee. The court allowed the motion, and the plaintiff appealed. The judge found the following facts:

That the defendants, after the filing of the complaint, and before the time for answering expired, filed their demand in writing to remove the cause to the Superior Court of Moore County. All the defendants are residents and citizens of the county of Moore; the testator of the defendant, Mary Belle Currie, executrix of J. L. Ourrie, who died domicile in said county of Moore, and letters testamentary were issued thereon to Mary Belle Currie in said county of Moore. The plaintiff is a foreign corporation, created by the laws of New Jersey on 31 October, 1917, filed in the office of the Secretary of State of North Carolina a duly attested copy of its charter issued by the State of New Jersey, together with a statement pursuant to the laws of the State of North Carolina *392required for permitting foreign corporations to do business in tbis State. Tbe plaintiff bas property in tbe county of Anson, and in tbe said statement it is made to appear that tbe location of its principal office is at "Wadesboro, county of Anson, North Carolina.

Broch & Ilenry and McLendon & Covington for plaintiff.

U. L. Spence for defendant.

BbowN, J.

There are two grounds upon which tbe motion for removal is based:

1. That tbe plaintiff bas no right to bring its action in tbe county of Anson simply because it bad property in said county at tbe time of tbe commencement of tbe action, and that the location of its principal office in North Carolina is at Wadesboro in said county, and that tbe agent upon whom process may be served resides there. It is unnecessary to pass upon tbis question, as in our opinion tbe cause was properly removable upon tbe second ground, namely, that tbe action must be brought in tbe county where tbe executrix-took out letters testamentary.

It is well settled in tbis State that an administrator or executor must be sued in tbe county in which be took out letters of administration or letters testamentary, provided be, or any one of bis sureties, lives in that county, whether be is sued on bis bond or simply as administrator or executor. Stanley v. Mason, 69 N. C., 1; Clark’s Code, sec. 193, and cases cited in the-notes. It doesn’t appear in tbe complaint exactly what tbe cause of action against tbe executrix is. Tbe presumption is, therefore, that it relates to and seeks to charge tbe estate of her testator. It nowhere appears that tbe cause of action of tbe plaintiff relates exclusively to tbe execution of a trust committed to tbe executor by tbe will. In tbis latter case tbe action would be more in tbe nature of one seeking to charge tbe executor personally for tbe conduct and management of tbe trust. Roberts v. Connor, 125 N. C., 45.

Upon tbe face of tbe complaint, and tbe facts found by bis Honor, we think tbe cause was properly removed to tbe county of Moore.

Affirmed.

Walxeb, J.,

concurs in result, being of opinion that tbe cause was removable on grounds additional to tbe one stated in tbe opinion of tbe Court.

Allen, J., concurs in opinion of Walxeb, J.