The respondent having taken possession of the property held by her testator, without being appointed executrix under the laws of this State, could at common law be sued as executrix de son tort, as was held in Campbell v. Tousey (7 Cow., 64).
The Revised Statutes, however, abolished executors de son tort (2 R. S., 449, § .17), and after such abolition no action could be maintained against' any person in the character of executor de son tort.
It is a conceded and well settled general rule that an action at law as distinguished from an action in equity, canhot be maintained in this State against a foreign executor or administrator; but where such executor or administrator has come into this State bringing assets of the estate, or has taken out letters of administration in this Stat^ in respect of assets located here, he may be proceeded against in a proper action brought in equity to compel an accounting for such assets. This is not such a suit. It is an action brought to recover specific sums of money as rent duo upon a lease executed by the testator of the executrix, founded either upon the lease itself, or upon the use and occupation of the premises by the respondent; and it is brought against her wholly in her representative capacity. If it were practicable *277to treat the complaint as one against the defendant in her individual capacity, by rejecting the averments in relation to her testator and the lease to him, and her siiccessic as executrix, the demurrer might be overruled; -but it is not.
In the court below Mr. Justice VaN Vorst delivered the following opinion:
“ This is an action for the recovery of rent due by the terms of a lease. The defendant is prosecuted as executrix of the last will and testament of Richard' P. Gibson, deceased, who in his life-time executed the lease under which the rent accrued. The complaint alleges that the defendant, by an order or determination of the surrogate of Monmouth county, in the State -of New Jersey, duly made, was, on the 16th day of March, 1875, appointed and now is the executrix of the will of the deceased Richard P. Gibson, and as such took possession of the premises which plaintiff had leased to the decedent.
It is a general rule of law that foreign executors are not recognized in their official capacity by domestic courts of law, and cannot be sued therein as such. (Campbell v. Tousey, 7 Cow., 64; Vermilya v. Beatty, 6 Barb., 429; 2 Kent. Com., 432, note c; Leonard v. Putnam, 51 N. H., 247; Metcalf v. Clark, 41 Barb., 45.)
I am referred by the learned counsel for the plaintiff to Gulick v. Gulick (33 Barb., 92) as an authority which sustains this action. But it is to be borne in mind that this action is at law to recover upon ah obligation of. the testator; no equitable relief is sought, but a money judgment only is demanded.
Gulick v. Gulick was in equity, in which the defendants were asked to account and pay the assets of certain property which had been received and converted. The property had been brought within this jurisdiction.
Bookes, J., in Metcalf v. Clark (supra), in alluding to Gulich v. Gulich, notices the fact that it was an action in equity. Actions in equity have been entertained within this jurisdiction against foreign executors who have brought or had in this State property of the testator to prevent, upon proper allegations, its waste, and secure its application to the payment of the debts of the testator, according to the law of the State, whence the exccu-*278tors derived their authority. This has been allowed to prevent a total failure of justice. (Brown v. Brown, 1 Barb. Ch., 189; McNamara v. Dwyer, 7 Paige, 239.)
But when it is sought to recover a money judgment only against a foreign executor the creditor should be remitted to the forum which has jurisdiction over him in his representative character.
This court has no such jurisdiction, and there should be judgment for the defendant upon the demurrer, with costs.”
We consider this opinion a sound exposition of the law applicable to the case presented by the complaint, and upon it and the authorities therein'cited we think the order and judgment must be affirmed. If the complaint contained averments by reason of which we could regard it as a bill for an accounting in equity, we might be able to uphold the dction, but for the purposes for which the suit is brought this court has no jurisdiction of the executrix.
Brady and Barrett, JJ., concurred.Order and judgment affirmed.