DISSENTING OPINION
Royse, J.I cannot agree with the majority opinion in this case. I agree with the following statement in the majority opinion:
“Therefore, as contended by appellee, the appellant, whose authority is strictly limited by statute, had no authority to recover for the estate that property which had already been fully administered. As contended further by appellee, any action to declare a trust and to recover property already administered but alleged to have been thereafter converted, must be brought in the name of the beneficiaries who are the real parties in interest.”
In my opinion, the foregoing rule is the criterion which should govern our decision.
*159It is to be noted that the averment in the complaint which refers to the receipt of $1,687.50 by the widow of monies which were assets of the husband’s estate, does not state whether the widow received such monies before or after the executor’s final report was approved, etc. The complaint does allege that all of the debts, claims and charges against the estate were paid. And that all of the remaining personal property was turned over to the widow pursuant to the terms of the will.
Assuming as we must here that the allegations of the complaint are true, I do not believe they bring appellant within the provisions of §6-310, Burns’ 1933 authorizing the appointment of an administrator de bonis non. It seems perfectly clear from the complaint that the testator intended that his widow, so long as she lived, could use all or any part of his estate. His children had only a contingent interest in his estate, that is, they were to share equally in any portion of such estate that might be left when the widow died.
It is clear from the complaint that the $1,687.50 of the assets from the testator’s estate received directly by the widow belonged to her for life under the terms of the will. All claims and debts of every kind had been paid by the administrator. The estate of testator had been finally closed. Hence, this money and the personal property did not belong to the estate of the testator. Under the will the widow had the right to use all or any part so long as she lived. If there was anything left at her death it belonged equally to the children — not to the estate of the testator.
The case of Storer, Admr. v. Carney (1920), 73 Ind. App. 415, 419, 127 N. E. 790, and Michigan Trust Co. v. Probasco (1902), 29 Ind. App. 109, 63 N. E. 255, relied upon in the majority opinion, are clearly distinguishable from the facts in this case.
*160In the Carney case, supra, this court sustained the action of the trial court in revoking the letters of administration de bonis non because they were issued in an attempt to deal with property that had been previously administered by the executor of testator’s estate.
In the Michigan Trust Company case, supra, the widow who was executrix of her husband’s will had both prior to and subsequent to his death, without his knowledge, taken property which was not inventoried, etc. in her accounting of that estate. Subsequently, she died testate in Michigan and her executor inventoried the property involved as an asset of her estate. The opinion in that case indicates there was a deliberate attempt by the executrix to conceal the property from the husband’s estate to defeat his intent that at the death of the widow it should go to his children. That is an entirely different situation than the question before us in this case.
I cannot agree with the majority opinion that because the cases of Messenger, Admx. v. Messenger et al. (1938), 106 Ind. App. 127, 17 N. E. 2d 488, and Fink, Admr. v. Peden (1938), 214 Ind. 584, 17 N. E. 2d 95, involved cases under our wrongful death statute,- the principle announced in those cases is not applicable here. In the recent case of Pettibone et al. v. Moore (1945), 223 Ind. 232, 59 N. E. 2d 114, our Supreme Court, speaking of the position of an administrator under the wrongful death statute, said:
“Although our courts have uniformly held the term ‘personal representative’ in this section of the statute means the general administrator of the decedent’s estate, and that he is the only person authorized to bring such suit up until there has been a final settlement and the estate is closed, yet it has also been uniformly held by this court that in bringing such suit such administrator is not acting as an administrator but as a trustee for *161those” entitled to damages arising from such action.” Citing authorities.
It seems to me, under the allegations of the complaint herein, that appellee was a voluntary or defacto trustee for the children of the testator.
Finally, I believe the principle enunciated in the cases of Case v. Deal (1912), 177 Ind. 288, 98 N. E. 56, and Murphey v. Murphey (1910), 174 Ind. 426, 92 N. E. 165, is controlling in this case. It is true they were suits for declaratory judgments for the construction of wills. In each case the executor alone appealed. In the Murphey case the Supreme Court, speaking through Judge Hadley, said:
“The executor, in his representative capacity, is the only appealing party. What right he has to appeal is not apparent to the court. His duties as executor are wholly administrative, and as relating to the distribution of the estate it is his duty to make just such distribution as the will directs under the guidance of the court. The will, as adjudicated by the circuit court and unappealed from by any party in interest, is no longer subject to question, and must be executed and the estate distributed in accordance with the court’s mandate. This distribution is devolved upon the executor, and all beneficiaries being satisfied with the construction given the will by the. court below, the executor clearly has no right to challenge it. It is none of his concern. If for any reason the judgment should be reversed at his request, his duty to carry out the will, as settled by the circuit court,. would be none the less imperative.”
In this case only the appellant, in her representative capacity, has appealed the decision of the trial court. No one who has any beneficial interest in the husband’s estate has questioned the action of the trial court. Richcreek v. Richcreek et al. (1946), 116 Ind. App. 422, 425, 426, 64 N. E. 2d 308.
*162For the foregoing reasons I believe the judgment should be affirmed or the appeal dismissed.
Bowen, C. J., concurs in this opinion.Note. — Reported in 103 N. E. 2d 445.