#### JOSEPH HOOVER v. J. L. R. MILLER, Adm’r.

An inventory is but prima fade evidence to charge the executor with assets, so as to call on him for proof to rebut it.

Actioit of debt, tried before Dick, J., at the last Eall Term of Randolph Supeijgor Court.

The action is debt on a bond of the intestate, to which the defendant pleaded, fully administered and no assets.

On the trial, the plaintiff gave evidence of assets in the hands of the defendant, to the value of $365,02; and to charge the defendant with a further amount of assets, the plaintiff gave in evidence the inventory, returned by the defendant, in which was included “ three-eighths of a lease upon the Davis lot at the Sawyer gold mine,” which the defendant had not sold. The defendant then offered evidence, that in fact, his intestate did not own the supposed term or lease ; which was objected to by the plaintiff, on the ground, that the defendant was concluded by his inventory. But the Court held that the inventory was only prima facie evidence of the lease, and *80that the defendant might show, by proof, that it had no existence, or was of no value, and admitted the evidence. The plaintiff then offered evidence, that the defendant had made a sham sale of the lease without having advertised it, and also offered to show, by miners, what the lease would have sold for, if due notice had been given. Rut the Court rejected the evidence offered, at the same time allowing the plaintiff to give evidence as to the value of the lease. Upon that evidence it appeared, that the intestate had worked the mine in the summer before his death, which occurred in October, but relinquished it, because the water rose in the shaft, so that it could not be kept down by a hand windlass and bticket, as it had usually been done, but would require a whim and horsepower, or steam engine to work it profitably.

The Court instructed the jury, that if they found there was a valid lease to the intestate, they should charge the defendant with the value of it, and that in estimating the value, they should consider the expense of working the mine, so as to get the gold, if any was there; and further, that if they found that the intestate had no lease, then they should find for the defendant on that point. The verdict charged the defendant with assets to the amount of $365,02, and found that he had no more ; and from a judgment on the verdict, the plaintiff appealed. #

Gorrell, for the plaintiff.

J. T. Morehead, for the defendant.

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, *81as 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.