Although the petitioner demanding that the executor or administrator make and return an inventory of the estate, alleges under oath the fact of his interest, this does not compel a granting of the petition even though his interest is not disputed. The court may pass upon the question of the petitioner's interest.

§ 1409. The Same Subject: Sufficiency of Petition and Answer. Where it is claimed that the executor or administrator has omitted to return in his inventory all of the assets of the estate, the petition must specify the property which has been omitted and pray that an additional inventory be filed. If an interested party alleges that certain described property which the administrator has not caused to be inventoried and appraised is the property of the estate, that demand has been made that this property be inventoried and appraised, and that the administrator has refused so to do, these facts are sufficient to require the administrator to answer.10

Where the executor files an affidavit that there is no estate of the deceased and this is uncontradicted, an order requiring the filing of an inventory should not be made because the inventory would contain blank schedules only and the law does not require useless things to be done.11 And where an administrator in his answer claims title to the property, neither the county court,12 nor the surrogate

8 In re Comin's Estate, 9 App. Div. 492, 41 N. Y. Supp. 323.

9 Pratt v. Hill, 124 Md, 252, 92 Atl. 543.

See 1412 as to correction of omissions and mistakes in the inventory.

See 1413 as to additional or supplementary inventories.

10 In re Martin's Estate, 82 Wash. 226, 144 Pac. 42.

11 In re Lowenthal's Estate, 148 App. Div. 487, 132 N. Y. Supp. 994. 12 Miers v. Betterton, 18 Tex. Civ. App. 430, 45 S. W. 430.

1

0

court, has jurisdiction to compel him to include it in his inventory.

§ 1410. Operation and Effect of Inventory.

The statutes often provide as to what shall be the operation and effect of the inventory. The inventory and appraisement usually is but prima facie evidence of the extent and value of the estate which has come into the hands of the executor or administrator, and he may still show that through inadvertence, ignorance or mistake, certain property was erroneously included therein.1 The fact that the executor or administrator has enumerated in his inventory certain property as belonging to the estate merely raises the prima facie presumption that the title thereto was in the decedent, which presumption may be rebutted.15 It has been said that property not included in the inventory is presumed not to belong to the estate.1o But in an action by an executor to recover on a promis

13 In re Goundry's Estate, 57 App. Div. 232, 68 N. Y. Supp. 155.

As to including in the inventory property the title to which is disputed, see 1401.

14 Devine v. United States Mortgage Co., (Tex. Civ.) 48 S. W. 585. "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 pleve administravit, pleaded, is binding." -Hoover v. Miller, 51 N. C. 79.

15 Craig v. McGehee, 16 Ala. 41;

Arendale v. Smith, 107 Ga. 494, 33 S. E. 669; Rodman v. Rodman, 54 Ind. 444; Hilton v. Briggs, 54 Mich. 265, 20 N. W. 47; Moffitt v. Hereford, 132 Mo. 513, 34 S. W. 252; McNab v. Wixom, 7 Nev. 163; Rollins v. Rollins, 77 N. H. 385, 92 Atl. 339; Matter of Shipman, 82 Hun (N. Y.) 108, 31 N. Y. Supp. 571; Pennington v. Newman, 36 Okla. 594, 129 Pac. 693; Estate of Stewart, 137 Pa. 175, 20 Atl. 554; Williams v. Mower, 29 S. C. 332, 7 S. E. 505; Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242; Pryor v. Krause, (Tex. Civ. App.) 168 S. W. 498.

16 Reed v. Gilbert, 32 Me. 519.

sory note made by the defendant to the testator and which is shown to have been the property of the testator at his death and which by operation of law and pursuant to the will passed to his executor who possesses the right to sue for the amount due, it is not error to exclude evidence offered by the defense to show that the note was not inventoried.17

The general rule is that an inventory is not conclusive either for or against an executor or administrator, but is open to explanation or denial.18 The right to show the true state of the title to the property inventoried does not depend upon the knowledge or ignorance of the executor or administrator at the time of returning the inventory.10 Where one makes admissions in the inventory as to the title to certain property, there is no estoppel in pais; to make it such the admission must have been acted upon by others who would be prejudiced were the person making it permitted to retract it.20 The general rule is that the inventory is not conclusive as to the decedent's ownership of property, either as against third persons or as against the executor or administrator.21 The probate court has

17 Gormley v. Bunyan, 138 U. S. 623, 34 L. Ed. 1086, 11 Sup. Ct. 453. An inventory can not be admitted in evidence to show that the property in question does not belong to the estate merely be cause it has not been included in the inventory.-Lewis v. Lusk, 35 Miss. 696, 72 Am. Dec. 153.

18 Willoughby V. McCluer, 2 Wend. (N. Y.) 608; Cameron v. Cameron, 15 Wis. 1, 82 Am. Dec. 652.

19 Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242.

The Texas statute, Hart. Dig., art. 1151, declares that the inventory shall not be conclusive if it be shown that the property was not separate or common property as specified therein.

20 Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242.

21 Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067; Fulcher v. Mandell, 83 Ga. 715, 10 S. E. 582; Lamme v. Dodson, 4 Mont. 560, 2 Pac. 298; Estate of Stewart, 137 Pa. St. 175, 20 Atl. 554; White v. Shepperd, 16 Tex. 163.

no jurisdiction to buy title to property between representatives of the estate and third persons, but it should not reject an inventory because property, the title to which is in dispute, is included in it.22

§ 1411. Operation and Effect of Appraisement.

The appraisement is not conclusive as to the value of the property appraised,23 and the executor or administrator may thereafter show the real value." However, the appraisement as filed is usually accepted as prima facie evidence of the value of the property,25 and in some

jurisdictions is prima facie evidence of the value of the property or estate in all suits by or against the executor or administrator.26 The appraised value of the property, in the absence of any further facts or circumstances being shown, is the amount with which an executor or administrator should be charged; but it is not conclusive and the representative may show, if there has been a loss, the reason thereof so that the court can say that it was incurred without his fault and extend him due credit.27

§ 1412. Omissions and Mistakes in Inventory, How Corrected.

Where an administrator discovers that he has made a mistake in his inventory, he may apply to the probate court for a correction of the error;28 or he may strike out the item from the inventory before it is filed, even after it has been sworn to.29 Where a surviving wife who is appointed administratrix of her husband's estate, by mistake and in ignorance of her rights includes in the inventory property which does not belong to the estate but which is her own property by operation of law, she is not estopped from afterward claiming the property as her own.30 Where an administrator erroneously inventories property as belonging to the estate, he may there

26 Succession of Dean, 33 La. Ann. 867; McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 127. 27 Ex parte Jones, 4 Cranch C. C. (U. S.) 185, Fed. Cas. No. 7443; Mussey v. Sanborn, 15 Mass. 155; In re Jones, 1 Redf. (N. Y.) 263.

28 In re Hallstead's Estate, 2 Kulp (Pa.) 508; In re Sloan's Estate, 254 Pa. St. 346, 98 Atl.

966; Cronshaw v. Cronshaw, 21 R. I. 54, 41 Atl. 563.

29 In re Payne's Estate, 78 Hun 292, 28 N. Y. Supp. 911.

30 Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067. See, also, Whelan v. Brickell, 4 Cal. Unrep. 47, 33 Pac. 396; Rausch v. Rausch, 14 Mont. 325, 36 Pac. 312,

See § 1402.