#### JOHN NISBET v. MARTHA STEWART, Executrix of FINLEY G. STEWART.

A resident of this state, at whose house a citizen of Georgia died while on a • visit, cannot, in a suit by a creditor of the deceased living in Georgia, be rendered responsible as an executor de son tori for taking possession of a sum of money which the deceased had with him at the time of his death, and paying it over, without notice of the creditor’s claim, to a person who had administered upon the effects of the deceased in Georgia.

Whether in such ease he would be responsible to a creditor in this state ? Qu.

This action was brought by the plaintiff, who is a citizen of the state of Georgia, against the defendant, as the executrix of one Finley G. Stewart, deceased. The defendant plead, “ ne tinques executrixto which the plaintiff replied, that she was executrix of her own wrong; and upon this replication issue was joined. Upon the trial at Iredell, on the last Circuit, before his Honor Judge Dick, it appeared in- evidence, that Finley G. Stewart, whose residence had been in the state of Georgia, came to Iredell county in this state, on a visit to the defendant, who was his mother, and there died: that he had with him at the time of his death the sum of four hundred and thirty-four dollars in money, which the defendant took possession of, and without any notice of the plaintiff’s claim, paid it over to one James G. Stewart, who had been appointed administrator on the estate of Finley G. Stewart, by the Court of Ordinary for Fayette county, in the state of Georgia. His Honor was of opinion that this evidence did not establish such an officious inter-meddling with the goods of the deceased as would subject the defendant as an executrix of her own wrong. The plaintiff, in submission to this opinion, suffered a non-suit, and appealed.

No counsel appeared for the plaintiff in this court.

D. F. Caldwell, for the defendant.

Daniel, Judge,

.after stating the case as above, proceeded : — Judge Story, in delivering his opinion in the case of Trecothick v. Austin, 4 Mason’s Rep. 32, said, that the general position stated at the bar, that no executor or *25administrator appointed under a foreign government, can, in virtue of such appointment, sue in our courts, is ted. But payments voluntarily made to a foreign administrator would now be held effectual in our courts upon the principles of national comity. This doctrine is supported by Atkins v. Smith, 2 Atk. 63, and still more fully and forcibly illustrated by the opinion of Chancellor Kent in the case of Doolittle v. Lewis, 7 John. C. R. 45. The Chancellor in that case said, (page 49) that an executor or administrator of a creditor, dying in another state, and becoming lawfully possessed, as part of his assets, of a bond given and secured by a mortgage upon the lands in this state, is competent, as I should apprehend, to receive payment, and give an acquittance, without first resorting to the Court of Probates here. The defendant here took charge of the money to prevent its being wasted. She, without any knowledge of the plaintiff’s claim, or of anv creditors in this state, honestly paid it over to the Georgia administrator. We are of the opinion, that whatever might be the liability of the defendant toa North Carolina creditor, on which we do not decide, nevertheless, as in this case the assets for which it is endeavoured to render her responsible, have been placed in the hands of the proper representative of the deceased in the state where he was domiciled, and where the plaintiff is domiciled, and are there liable to the demand of the plaintiff as they should be according to the laws of that state, the plaintiff cannot claim that she was executrix of her own wrong.

Per Curiam. Judgment affirmed.