It appears by the record in this case, that the Plaintiff had possession of the property in question, under an order of the court of Halifax county in the State of Virginia, which directed that the property should be delivered by the executrix to him for his greater security; and that the Court was empowered by the laws of that State to make such an order. It has been urged for the defendant, that the executrix herself could not maintain an action in this state, by virtue of letters testamentary obtained *425in Virginia; and that the plaintiff could not derive an authority from her, to bring suits, which the herself did not possess. That point has never been directly decided in this state, nor is it indespensibly necessary that it should be decided in this case. If, however, the executrix had sold the property, and the purchaser in consequence thereof had obtained the possession of it, that purchaser could maintain an action for it in this state, in case he became disposessed of it. So, in the present case, the property was conveyed to the plaintiff under very high authority, so much so, that we are inclined to believe, that against that conveyance (or what is tantamount thereto, the order of the Court) an action could not be sustained for it by the executrix its her own name. If so, the power of suing devolved upon the plaintiff. But be this as it may, we think this action may be sustained by the present plaintiff, by virtue of the right which he derived to the property from the order of Court, and the possession which he had of it under that order. For this reason, we think judgment should be entered for the plaintiff.
Wade v. Edwards, 1 N.C. 416, 1 Cam. & Nor. 416 (1802)
Robert Wade, Trustee, &c. versus James Edwards.
Detinue for the recovery of slaves. The record filed in this Court states the following case:
Charles Edwards, of the county of Halifax, in the State of Virginia, being possessed of the slaves in question, duly made his last will and testament on the 14th day of March, 1785; and thereby bequeathed one-third part of his estate to Letty his wife during her life, the residue of him estate to his children, to be equally divided amongst them, when his son Leonard Edwards should arrive at full ages; and thereof appointed Letty his wife, executrix, and Thomas Edwards and Samuel Clay, executors.
The Testator died in the county of Halifax aforesaid, on the 10th day of February, 1790; his will was proved in the court of that county, on the 20th day of June following; and Letty qualified, executrix thereof, and soon afterwards possessed herself of the personal estate of the testator, and amongst other things, of the slaves in question; the said Thomas Edwards and Samuel Clay having refused to qualify, or take any part in the management of said estate.
The said Letty, at the time of proving the will, with Robert Wade and other, her securities, entered into bond, conditioned to be void, if the should well and truly return an inventory of the estate of the said Charles Edwards, deceased, administer the said estate according to law, *417make a true and just account of her actings and doings therein, when required; and deliver and pay the legacies contained in the will, according to law; which bond was required by, and executed according to the tenor and effect of an act of the General Assembly of the State of Virginia.
The said Letty on the 10th day of June, 1793, intermarried with Leonard Cheatham, who joined with her in the administration of the said estate.
Robert Wade, the plaintiff, being one of the said securities, became alarmed at the manner in which the said Leonard and Letty were managing the said estate, and to protect himself and the other securities, filed his petition in the court of Halifax county aforesaid, praying relief, according to an act of the General Assembly of that State, in the following words, to wit: “ When securities for executors and administrators conceive themselves in danger of suffering “ thereby, and petition the court for relief, the “ court shall summon the executor or administrator, and make such order or decree therein, “ to relieve and secure the petitioners, by counter security, or otherwise, as shall seem just “ and equitable.” And such proceedings were had on the said petition, that the court aforesaid, on the 29th day of April, 1794, (the said Leonard and Letty having failed to give counter security) passed the following order, viz, “ It is “ ordered, therefore, that the said Leonard and “ Letty his wife, executor, &c. as aforesaid, do deliver the estate of the said Charles Edwards, *418“ deceased, into the hands of the said Robert “ Wade, for his indemnity.”
By virtue of this order or decree, the plaintiff was afterwards possessed in this State, of the slaves in question, and remained possessed thereof, until they came to the possession of the defendant, who still detains them from the plaintiff. The slaves were in the State of North-Carolina, resident on a plantation of the testator, at the time of his death, and have continued in this State ever since.
Norwood for the Plaintiff.
1 ft. Did the authority of the executrix, acquired by the probate of the will, her qualification and letters testamentory, in the State of Virginia, so extend to this State, as to enable her to prosecute suits here, without obtaining letters testamentary in this State?
2dly. Did that authority devolve on the Plaintiff, by the operation of the law of Virginia, and the order made by Halifax county court, so as to enable him, as trustee, to prosecute suits here in his own name?
3dly. If the Plaintiff had no such authority, will this action lie on his own possession (he being responsible to the creditors and legatees) notwithstanding he has named himself Trustee?
1ft. It is a general rule of law, that personal property shall be governed by the laws of that country where the owner is domiciled. 4 Term Rep. 192, Prec. in Chan. 577. 2 Vez. 35. Amb. 25. 1 Hay. Rep. 357. Williamson vs. Smart and Kilby, ante.
*419And therefore, a will made and proved according to the laws of the country, where testator reside, vests in the executors, a right to all his personal property, wherever found. And the distribution of the property is governed by the same rule. 2 Ba. Ab. 416. 6 Co. 48. Prec. in Chan. 577. Toller 47, Amb. 25, 2 Vez. 35. It is, however, held by some, that when the property is found within a different jurisdiction, the executor must obtain letters testamentory from that jurisdiction, before he can recover the property by suit. But as to this rule, it is to be observed,
1. That the reason assigned for it in England, is merely formal; and founded on the right of jurisdiction only. 2 Ba. Ab. 399. 1 Com. Dig. 369. 1 Haywood’s Rep. 357. 2 Vez. 35. Amb. 25.
2. That a new probate of the will is not neccessary, the formal letters in such cases being founded on the former probate, or letters of administration, Amb. 415.
3. That the executor may, without such formal letters, take the property into his possession in any part of the world, if he can obtain it without suit. 2 Atk. 63.
4. That the reason of the rule having never existed in this State, the rule itself has never been received into practice; the courts permitting executors to maintain suits by virtue of letters obtained in any other country. A reason different from that assigned by the Judges of England, induced our courts to adopt the rule as to administrators. It is this; they give bond and secu*420rity for the faithful administration of the assets, and thereby the creditors of this State are secured in the recovery of their debts; otherwise an administrator of another State or Country might collect in the assets here, by an agent, and not pay the debts due to the citizens of the State. But executors do not give bond, and therefore the application of the rule would not have the same beneficial effect, and consequently ought not to be applied.
5. The courts of this State are bound by the probate of the will, and the grant of letters testamentary by the court of Halifax county in Virginia. Fed. Con.art. 4, sec. 1. 1 Laws of Cong. 115.
The constitution must mean something more, than that a copy of a sentence of the court of one State, should be evidence of that act of the court in the other States; for a copy of a record had that effect by the common law, before the adoption of the constitution, and I suppose it could not have been intended merely to enforce that common law principle. I therefore contend that the constitution gives to the judicial acts of a court of record of our State, the same force and effect in all the other States, which they have in another court of same State, so far as they evidence a pre-existing right or duty. And if so, the right and authority of the executrix being given by the will, the effect of the probate and grant of letters testamentary, being only evidence of that right and authority, will extend to this State. But perhaps it will be objected that this argument will operate in favor of administrator as well as executor, and consequently *421cannot have any weight, as this question, so far as it affects administrators, has been determined. The answer to this objection is easy. An executor derives bis authority from the will, which is co-extensive with his right under the will, the probate and letters being evidence only of his right aud authority; but an administrator derives his right and authority from the act of the court only, and consequently they cannot extend beyond the jurisdiction of the court that granted the administration.
Secondly. It was the intention of the law of Virginia to deprive executors of the possession of the assets, and of all their powers, and to vest them in the securities, and make them responsible for the after management of the estate. It must have this operation, or the securities will not be protected, against the waste and misconduct of the executors, and the creditors and legatees may be greatly injured. For the executor, if he should be sued, being exonerated from further responsibility by the order of the court, and having no assets in his hands to indemnify him for expences, would defend himself only, by pleading the order of the court and the delivery of the assets in consequence of it, and not the interest of the estate; but permit judgment to pass against it, whether the claim was just or unjust; and if unjust, injure the legatees and oppress the securities; and whether just or unjust, subject the creditor to the necessity of bringing another action against the securities, The principal object of the act was, to secure the rights of creditors and legatees, by compelling executors to give security. It ought to have a liberal construction, so as to give it this *422effect, without subjecting them to any additional trouble, delay or expence; and if my construction prevails this object will be effected; but if a contrary one should be adopted, the consequences would frequently be injurious to creditors and legatees and ruinous to the securities. It would certainly be inconvenient and absurd, to give action against one man, executor, who has no interest in the event, and who most probably feels some resentment against the security; and to give the sole possession of the assets liable to satisfy the judgment, to another person, the security, and make him responsible for the conduct of the executor. I have always understood that the courts in Virginia have given this act the construction which I contend for; and believe that this plaintiff has prosecuted suits in his own name as trustee, in the state of Virginia, with effect.
The authority of the security, who by the order is converted into a trustee, must be as great, and as extensive, as the executors, before the order was made; in fact, the security must be substituted in the place of the executor, or the objects of the act would almost entirely fail. For if the authority of the trustee should be confined to Virginia, the executor might continue to collect in the assets in every other part of the world, and might waste them as as fast as he collected them. This would be fatal to the security in many instances, and would have been so in the present, most of the assets being in this state.
*423Thirdly.—All persons who have a special property, and are answerable over, may maintain an action of detinue 2 Ba. Ab. 46 3 Com. Digest 358. In this case the Plaintiff had a special property in the slaves, was legally in possession of them, and is answerable over to the creditors and legatees. The action will, therefore, well lie, unless the circumstance of his having named himself trustee is fatal to it. That addition is mere surplusage, and will not vitiate the action. The Plaintiff declared on his own possession, and therefore the addition of trustee can have no more influence in the cause, than if an executor should bring an action on his own contract for the sale of the assets, and name himself executor; which has always been held to be surplusage.
Haywood for the Defendant.
The probate of the will, and grant of letters testamentary in this case, extended only to the State of Virginia. The executrix herself could not maintain an action here, without first obtaining letters in this State. It is indeed, true, that the will vested in the executrix a right to the testator’s property in every part of the world; but Virginia could not give the authority necessary to enable her to maintain a suit for it beyond the limits of that State; the authority and remedy must be given by the court having jurisdiction where the property is found. But if the authority of the executrix extended to this State, and she might have maintained an action here by virtue thereof, yet it does nor follow that this action will lie in the name of the plaintiff as trustee by virtue of that authority. For neither the act or order of the Court of Virginia extended to this State; *424and if they had, they would not support the action. They only gave him the right of possessing the assets, and not the right of transacting the business of the estate in his own name. No inconvenience or injustice will arise from this construction, because he may prosecute suits in the name of the executrix, and defend such as may be brought against her. Thus far, perhaps, the courts will take notice of his interest,and enable him to defend it.
As the Plaintiff has brought his action as trustee, and declared in his own possession as trustee, he must shew a title as trustee, or he cannot recover. His possession in this State being in his individual capacity, will not support the action. He makes out his title to the property by means of the trust; consequently, it was necessary to name himself trustee, as much so as it would have been to have named himself executor, had he been suing in that right. Indeed, he alledges that he possesses the authority of an executor: and surely, if he had brought his action as executor, he could not recover in his individual capacity.