This appeal presents the question of whether the Administratrix of the estate of a deceased person must file an inventory of all the personal property owned by decedent at the time of death. The facts as shown by the record may be summarized as follows:
Ernest J. Oertling died intestate April 6, 1945. He left surviving as his sole and only heirs his widow, Mary E. Oertling, who is appellant herein in both her individual and representative capacity (hereafter the term "widow" shall refer to her individually and "appellant" to her representative capacity), and Ernest G. Oertling, his father, appellee herein. On April 14, 1945, appellee, by written instrument, assigned to the widow all of his interest in the estate of his deceased son. She then undertook to settle the estate of her deceased husband *Page 240 without the issuance of letters of administration. She sold two optometric businesses of decedent for $18,700. She paid indebtedness of about $3,000. Other assets amounted to between $4,000 and $6,000. She took over all of the assets in her individual capacity.
Sometime thereafter, appellee asserted the assignment he made on April 14, 1945, was illegal and void because it was obtained by fraud. When litigation was threatened the widow applied for and took out letters of administration in the matter of the estate of decedent. Her application for letters of administration stated it was made for the purpose of administering upon certain assets of said estate not already administered under a family settlement agreement. Appellant filed no inventory. On or about February 14, 1946, appellee filed his petition in said estate to require the administratrix to file a full and complete inventory showing all of the property owned by decedent at the time of his death. The petition averred the assignment of April 14, 1945, was obtained by fraud and that no legal family settlement had been made in said matter. After a hearing on this petition the trial court ordered appellant to file a full and complete inventory of the personal estate of the decedent and that said inventory should include all of the personal property which decedent owned at the time of his death. From that judgment this appeal is prosecuted.
Section 6-701, Burns' 1933, provides in part as follows:
"Every executor or administrator, within sixty (60) days after his appointment, shall make out a true and complete inventory of the personal estate of the decedent which shall have come to his knowledge, including all debts, demands, stocks, moneys and goods, due to and owned by the decedent at his death, and all his emblements and annual crops *Page 241 raised by labor, whether severed from the land or not at the time of his death."
It seems to us the above quoted provision of the statute is clear and unambiguous. In positive language it provides every administrator shall make an inventory of all the personal 1. property, of which the administrator has knowledge, owned by the decedent at the time of his death. This is all the judgment of the trial court herein requires the appellant to do. The appellant, by filing her application for letters of administration and qualifying as administratrix was bound by the foregoing provision of the statute.
The judgment herein does not in any way affect the rights of either the widow or the appellee in reference to the questioned assignment. A legal determination of that dispute can only 2. be had in a civil action between the parties. § 6-921, Burns' 1933.
We believe the question here presented is quite different than that in the case of Rosenfield v. Rosenfield, Administratrix (1937), 212 Ind. 120, 6 N.E.2d 938. In that case the administratrix claimed she had received the property as a gift from the decedent prior to his death, whereas in this case appellant is claiming the property by reason of a questioned family agreement made after decedent's death. Such an agreement would not absolve her as administratrix from the positive duty imposed by the statute.
Judgment affirmed.
BOWEN, P.J. — dissenting with opinion in which Hamilton, J., concurs.
NOTE. — Reported in 76 N.E.2d 851. *Page 242