and profits of real property of the estate during the course of administration, reason exists why such realty should be included in the inventory so as to call attention to the fact of his rights, duties, and liabilities in that regard, even though the possibility of loss, destruction, or fraudulent transfer of realty is in no wise comparable with that of personalty. In the absence of statutory provisions on the subject, it is held that real property need not be included in the inventory,87 but in many jurisdictions, by reason of the statutes, the real property of the estate must be set forth in the inventory the same as the personalty.88

§1405. As to Including in the Inventory Property Fraudulently Conveyed by Decedent.

In some jurisdictions it is the duty of the executor or administrator to include in his inventory property fraudulently conveyed by the decedent, if such property is needed for the payment of debts;89 but in others it is held that it is no part of the duty of the executor or administrator to inventory property conveyed by the decedent in fraud of his creditors.90 One who has possession of

87 Henshaw v. Blood, 1 Mass. 35; Estate of Dundas, 18 Phila. (Pa.) 79.

Moneys arising from the sale of real property in another state are not assets in the hands of the executor.-Peck v. Mead, 2 Wend. (N. Y.) 470.

88 Minor v. Mead, 3 Conn. 289; Lewis v. Carson, 93 Mo. 587, 3 S. W. 483, 6 S. W. 365; In re Higgins' Estate, 15 Mont. 474, 28 L. R. A. 116, 39 Pac. 506; Wilson III Com. on Wills-21

property under a conveyance from the decedent to defraud his creditors is generally held an executor de son tort, and the right to have such conveyance set aside is vested in the creditors only, since an executor or administrator, generally speaking, is the representative of the decedent and bound by his fraud; but in some jurisdictions the executor or administrator is also considered the representative of creditors and is given the right by statute to vacate fraudulent conveyances.91 In Massachusetts it has been held that where creditors of a decedent whose estate is insolvent request the administrator to inventory real estate alleged to have been fraudulently conveyed by the decedent and offer to indemnify the administrator, he must do so or his refusal is sufficient cause for his removal from his position of trust without proving that the conveyance was in fact fraudulent.92

§ 1406. As to Including Partnership Assets in Inventory.

As to whether or not a decedent's interest in a partnership should be included in the inventory, there seems to be a conflict of opinion. The surviving partners have the right to settle the partnership affairs, simply turning over to the personal representative of the decedent his interest in the residue. Until the affairs of the partnership are settled, the value of the decedent's interest therein is naturally unascertained, but the amount is fixed

ner v. Gardner, 17 R. I. 751, 24 Atl. 785.

91 See 1258.

As to charging one who has received property of the decedent, either innocently or through collusion, see § 1259.

As to possession of property in good faith under color of title, see § 1260.

92 Andrews v. Tucker, 7 Pick. (24 Mass.) 250.

and determined when it does come into the hands of the personal representative. The various items comprising the partnership property would in no case be required to be set forth in detail, but the fact of the interest of the estate in a partnership should be stated, and is often required by statute.94

§1407. Power of Court to Compel Return of Inventory.

Courts of probate have full power to compel an executor or administrator to make and return an inventory of the estate.95 This may be done at any time before final settlement." Where the statute gives one court juris

diction of the administration and settlement of the estates of decedents, in order to confer jurisdiction on another court by reason of its general equity powers it must be alleged in the petition to compel the making and returning of an inventory that there is likely to be a failure of justice unless the court assumes jurisdiction." Generally the court exercising probate jurisdiction and having charge of the administration of the estate has power to compel the return of an inventory even though there be a suit pending in another court to compel the executor or administrator to account.98

Where the statute expressly requires an inventory to be returned, it is the duty of the court to order it, no matter from what source may come the complaint for the failure so to do." The court of its own motion may order the executor or administrator to file his inventory, although it is unusual to do so unless an interested party intervenes and requests it.1

§ 1408. Interested Parties May Petition to Cempel Return of Inventory.

All persons interested in the estate or under the will of the decedent, such as heirs at law, next of kin, legatees, devisees or creditors, may petition the court having juris

diction of the administration of the estate to compel the executor or administrator thereof to return an inventory. When a party interested in the estate desires to ascertain the nature and character of the various assets of the estate and no inventory thereof has been returned, he may file a petition praying that the executor or administrator make and return an inventory. This is a right which is vested in every one interested in the estate, and the fact that one's interest is disputed is immaterial.3 A creditor is such an interested party as may petition to compel the filing of an inventory; but though the statute provide that such proceedings may be instituted by a creditor, an agent or attorney for a creditor is not within its purview."

Heirs at law and next of kin of the decedent who have released all their interests in the estate by receipts duly executed by them, are no longer interested parties so as to compel the executor or administrator to return an inventory. Where, however, an heir or one of the next of kin of the decedent has executed an assignment of his share which he claims is void and which he assails for fraud in its procurement, he still remains an interested party."

2 In re Huntington's Estate, 39 Misc. Rep. 477, 80 N. Y. Supp. 220; In re Gillender's Estate, 98 Misc. Rep. 521, 162 N. Y. Supp. 955 (under C. C. P. 2669).

3 Pace v. Oppenheim, 12 Ind. 533; In re Long's Estate, 161 N. Y. Supp. 459.

4 Le Boeuf v. Webre, 40 La. Ann. 380, 4 So. 223; Fowler v. Brady, 110 Md. 204, 73 Atl. 15; In re Huntington's Estate, 39 Misc. Rep. 477, 80 N. Y. Supp. 220; Langley v. Harris, 23 Tex. 564.

5 In re Lowenthal's Estate, 148 App. Div. 487, 132 N. Y. Supp. 994. 6 In re Blethen's Estate, 112 Me. 69, 90 Atl. 726.

One who claims as next of kin but who is not entitled to a distributive share of the estate can not maintain an action on the administrator's bond for failure to make and return an inventory.— Judge of Probate v. Southard, 62 N. H. 228.

7 Schmidt v. Heusner, 4 Demar est (N. Y.) 275.