after amend his inventory so as to exclude it.81 The fact that an administrator has omitted to return certain property in his inventory can not prejudice the estate. An inventory can not be admitted in evidence to show that the property in question does not belong to the estate merely because such property has not been included in the inventory.32

Although an executor or administrator has failed to include property of the estate in his inventory, he may be charged therewith in the probate court upon the settlement of his account. The probate court, in settling the account of an executor or administrator and in ordering a distribution of the property of the estate, has jurisdiction to hear and determine what assets should be charged against the personal representative, and this is necessary in order that the residue to be distributed to those entitled thereto may be ascertained. The fact that property belonging to the estate has been omitted from the inventory should be first determined in the probate court, and interested parties may establish their right to the property except in those cases where there is a dispute as to title which the probate court has no jurisdiction to determine.34

33

As a general rule an inventory may not be impeached by collateral attack. The proper method of correcting it is by motion after notice, in the court wherein the admin

31 McWilliams v. Ramsay, 23 Ala. 813; Booton v. Booton's Exrs., (Va.) 29 S. E. 823.

32 Lewis v. Lusk, 35 Miss. 696, 72 Am. Dec. 153.

33 Hawes v. Williams, 92 Me. 483, 43 Atl. 101.

34 Hurlburt v. Wheeler, 40 N. H. 73.

As to including in the inventory property regarding which the title is in dispute, see § 1401.

As to jurisdiction in matters of probate, see § 1298.

As to courts of probate having limited powers only, see § 1299.

istration is pending.85 In a proceeding to correct an inventory and to have uninventoried assets included therein, the burden of proof is upon the one demanding the correction.86

§ 1413. Additional or Supplementary Inventory.

In some jurisdictions it is provided by statute that when property not inventoried shall come to the knowledge or possession of the executor or administrator, he shall cause it to be appraised and return an additional inventory as soon as practicable after the discovery thereof, and the making of such additional inventory may be enforced by attachment to which may be added the revocation of the letters.87 It has been held under the

35 Pennington v. Newman, 36 Okla. 594, 129 Pac. 693.

In New Jersey the Orphans Court and in Texas the County Court have jurisdiction to examine into the fairness of an inventory when exceptions are taken thereto.-Pickel v. Alpaugh, 42 N. J. Eq. 630, 11 Atl. 16; Langley v. Harris, 23 Tex. 564.

36 Mulcahy v. Mulcahy, 84 Conn. 659, 81 Atl. 242.

37 Cal. Code Civ. Pro., § 1451; Phelan v. Smith, 100 Cal. 158, 169, 34 Pac. 667; Estate of Graber (Graber v. Schram), 111 Cal. 432, 434, 44 Pac. 165; Moore v. Holmes, 32 Conn. 553; Sayle's Ann. Civ. Stats., 1897, (Texas) art. 1973; Texas Loan Agency v. Dingee, 33 Tex. Civ. 118, 75 S. W. 866; Commonwealth v. Bryan, 8 Serg. & R. (Pa.) 128; Black v. Black, 134 Tenn. 517, 184 S. W. 27; § 6209,

2 Ball. Ann. Codes & Stats. (Wash.); In re Belt's Estate, 29 Wash. 535, 92 Am. St. Rep. 916, 70 Pac. 74.

Where upon final settlement an executor makes an additional inventory of certain personal property disposed of by him in accordance with the wishes of the deceased, the court may find the value of such property and charge the executor therewith without appointing appraisers for that purpose.-Estate of Garrity, 108 Cal. 463, 469, 38 Pac. 628, 41 Pac. 485.

Where a full inventory of all the effects of the deceased is contained in the will, it seems that it is unnecessary for the executor to make out a new inventory. At all events his failure or omission will not invalidate the will. Panaud v. Jones, 1 Cal. 488.

-

Under the Illinois statute, the

statute in Massachusetts that only one inventory need be returned, and for all property subsequently received the administrator is bound to account, but not in the form of an inventory. But where an erroneous inventory has been filed, the executor or administrator may file a second inventory and correct the errors.39

Where upon an application to file a further inventory the administrator denies the existence of further assets, the application must be refused in the absence of a showing that such assets exist.40 A decision of a probate court denying the application of an interested party to require the administrator to make an additional inventory of property claimed to belong to the estate but omitted from the inventory, is a final decision from which an appeal may be taken.11

demands of creditors not exhibited within two years are forever barred unless the creditors shall find other estate of the decedent not inventoried or accounted for, in which case their claims shall be paid pro rata out of the newly discovered property.-Auburn State Bank v. Brown, 172 Ill. 284, 50 N. E. 144.

And see, also, Conn. Gen. Stats., § 588, and Frisbie v. Preston, 67 Conn. 448, 35 Atl. 278, which requires such after discovered property to first be inventoried before administrator can sue for or exercise rights over the same.

which was not included in the inventory because it was considered of no value, yet which nearly twelve years afterwards proves to be sufficient to pay the claims of creditors, may, under the Massachusetts statute, be considered as new assets for the payment of claims.-Quincy v. Quincy, 167 Mass. 536, 46 N. E. 108.

88 Hooker v. Bancroft, 4 Pick. (21 Mass.) 50.

89 Succession of Pipkin, 7 La. Ann. 617; Administrators of Bradford, 1 Browne (Pa.) 87.

Compare: Gallian v. Cox, 9 La. Ann. 500.

40 Estate of McIntyre, 4 Redf. (N. Y.) 489.

A reversionary interest in property belonging to the estate and within the knowledge of the ad- 41 Dobson v. Holmes, 83 Kan. ministrators and creditors, but 476, 112 Pac. 131.

§ 1414. Effect of Failure to Return Inventory: Removal from

Office.

It being the duty of an executor or administrator to file an inventory, the failure to do so is a neglect of duty for which his letters may be revoked. It is often so provided by statute. The reason why the representative may be deposed from office is because of the breach of duty, a matter to be determined by the probate court according to the facts and circumstances of the case, due regard being had to the statutory requirements and the excuses presented by the representative.12

§ 1415. The Same Subject: Liability on Bond.

The failure of an executor or administrator to make and return an inventory as required by law or the order of the court is a breach of his official bond and renders

42 Orr v. Kaines, 2 Ves. Sen. 194; Humphrey v. Conger, 7 App. Cas. (D. C.) 23; Oglesby v. Howard, 43 Ala. 144; In re Graber (Graber v. Schram), 111 Cal. 432, 44 Pac. 165; Matter of Rathgeb, 125 Cal. 302, 57 Pac. 1010; Treat's Appeal, 40 Conn. 288, 290; McFadden v. Ross, 93 Ind. 134; Haynes v. Carpenter, 86 Mo. App. 30; Barnes v. Rockey, 36 Ore. 279, 59 Pac. 464; In re Bolander, 38 Ore. 490, 63 Pac. 689; Ruenbuhl v. Heffron, (Tex. Civ.) 38 S. W. 1028; Buchser v. Buchser, 72 Wash, 675, 131 Pac. 194, 132 Pac. 239.

As to time within which inventory should be filed, and when it may be dispensed with, see § 1395.

As to interested parties compel

ling return of inventory, see § 1408.

As to sufficiency of the answer of representative in a proceeding to compel him to file an inventory, see § 1409.

In Alabama it is held that the rule does not apply where the only assets are money and choses in action received from a former administrator.-Hubbard v. Smith, 45 Ala. 516.

In California, Code Civ. Pro., § 1446, no appraisement is necessary where the assets consist of money only, but an inventory is required.

Sickness has been held a sufficient excuse for failure to file an inventory within the required time. In re Patten, 18 D. C. 392.

him liable on the bond for any injury occasioned thereby to the estate or to any person interested therein. He is required, in order to escape liability on his bond, to return a true and correct inventory of all the assets of the estate which come into his hands or to his knowledge, and the condition is not fulfilled if a false inventory is returned.“ The failure to include certain property in the inventory may be a fraud,45 or it may be the result of an honest mistake. But it has been held that the executor or administrator can not excuse his failure because of belief or advice of counsel. However, if the failure to return the inventory results merely in a technical breach of the bond, the breach is cured if a proper inventory be filed before suit is instituted.48

46

Damages may be assessed against the executor or administrator for failure to make and return an inventory as required by law or order of the court,49 or an attachment may be issued against his person.50 But proof

43 State v. French, 60 Conn. 478, 23 Atl. 153; People v. Hunter, 89 Ill. 392; Hodge v. Hodge, 90 Me. 505, 60 Am. St. Rep. 285, 40 L. R. A. 33, 38 Atl. 535; Forbes v. McHugh, 152 Mass. 412, 25 N. E. 622; Sherwood's Admr. v. Hill, 25 Mo. 391; Probate Court v. Merriam, 8 Vt. 234; Ellis v. Johnson, 83 Wis. 394, 53 N. W. 691. As to interested parties compelling return of inventory,

§ 1408.

see

As to excuses of representative, see § 1409.

44 Gilbert v. Duncan, 65 Me. 469; Wilson v. Ruthrauff, 82 Mo. App. 435.

Failure to inventory promissory

notes of the estate is a breach of his bond, even though the administrator who is the payor on said notes denies all liability.-Potter v. Titcomb, 10 Me. 53.

45 McNeel's Estate, 68 Pa. St. 412.

46 Appeal of Speakman, 71 Pa. St. 25.

47 Bourne v. Stevenson, 58 Me. 499.

48 McKim v. Harwood, 129 Mass. 75.

49 Scott v. Governor of Missouri, 1 Mo. 686.

50 Baker v. Baker, 2 Sw. & Tr. 380.

Where an administrator is in custody for not filing his inventory