On the Merits.
DAWKINS, J.[2] The condition of the record in this case is fully set forth in the opinion on the motion to dismiss the appeal, and there is no necessity of repeating it here. The only question to be determined is, Did the executor under the will have the right to apply in his name alone and have an ex parte order or judgment signed sending the widow and universal legatee into possession of a piece of property which had not been placed upon the inventory, and to which proceeding they were in no wise made parties or allowed to be heard? True his function is to deliver the estate in accordance with the terms of the will; but this duty is limited to the undisputed property and assets of *501the decedent, and does not include property not placed upon the inventory, or which the heirs and legatees may or may not wish to accept when confronted contradictorily with that issue. In such circumstances, the proper course is to apply for a supplemental inventory, and to rule the heirs and legatees into court for delivery of the estate, not to apply to 'have them judicially recognized as such in an ex parte application without in any manner citing or making them parties thereto.
For the reasons assigned, the judgment and decree appealed from is therefore annulled and reversed, and this cause remanded, to be proceeded with according to law and the views herein expressed. Appellee to pay costs.