Hoover v. . Miller , 51 N.C. 79 ( 1858 )

RuffiN, J.

As the verdict was found, all the points of evidence, as to what the supposed lease would have sold for, or as to its value, and the instructions relative thereto, are put out of the case, since it negatives the existence of any such lease. The only question, then, is, as to the effect of the inventory as evidence of the lease ; and on that, the Court thinks his Honor ruled properly. An inventory has never been deemed conclusive on an executor, but only as throwing the onus on him to discharge himself, upon evidence, if he can, as to a thing contained in it. It would be mischievous to hold otherwise, and often defeat the parpóse of requiring an inventory ; which is to get as true and full an account of the estate as possible, for the benefit of the executor, legatees and creditors. If they were to be taken as conclusive, executors woxrld hardly ever make direct and positive inventories, but put down the title of all the property as doubtful, and all the debts as desperate. Indeed, but few honest men would undertake the office at such a risk ; for an inventoried slave might be recovered from him on a better title, or a bond turn out to be forged, or to have been paid. The executor cannot possibly know the affairs of the testator perfectly, or even minutely. All that can be expected of him is, that he should make a fair and honest account, as they appear to him ; and if he be mistaken, he ought to be allowed to show thathence, as Swinburn says, an inventory is not binding, nor very much regarded at common law ; for if it be too high, it shall not be prejudicial to the executor, and if too low, it shall be no advantage to him; but the value found by a jury on plena adnvinistmvit pleaded, is binding. See S winb. on Wills, 426. The modern English cases on this point, are collected in Williams’ Exe’r. 1678-80, and show that, at most, the inventory is hut prima fade evidence to charge the executor with assets, so as to call on him for proof to rebut it; which accords with the general understanding and practice here. In the case before us, although the defendant might from rumor, or the fact of the intestate’s working the mine shortly before his death, have believed he had a lease, yet it may have happened, and probably did, that in truth, he had none that was valid, for the want of its being in writing, as required by the act of 1844, or it may have expired.

Pub CuRiam, Judgment affirmed.