
    In re PAYNE’S ESTATE.
    (Supreme Court, General Term, Second Department.
    May 14. 1894.)
    Executors and Administrators—Inventory—Striking Out Items.
    An item inserted in an inventory by mistake may be stricken out after the inventory is sworn to.
    Appeal from surrogate’s court, Suffolk county.
    Judicial accounting of Albert Payne and Shepard H. Payne, as executors of Silas W. Payne. Prom the decree settling the accounts, the executors appeal. Reversed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Wilmot M. Smith, for appellants.
    T. M. Griffing, for respondent.
   PRATT, J.

The contestants herein seem to rely mainly upon the statement that the note in controversy was returned in the inventory as part' of the estate of the deceased, and wsas sworn to as such. But this is not true, as a matter of fact. On the other hand, it clearly appears that this item was stricken from the inventory before it was filed. It is said it was sworn to before it was amended by striking out this item, and hence it must be regarded as conclusively to be an asset of the estate. If, however, it was put in the inventory by mistake, it was proper to make the correction, and it was done. The weight of evidence seems clearly to show that the testator intended to give one-half of the property which he conveyed to him on Oxford street, reserving only the interest on one-half of the purchase money. This is proved by the written agreement, as well as the declarations of the testator. It is a just inference that the mortgage was satisfied, and the note in question given to carry out said agreement to pay the testator the interest during life. Such a theory is the only one consistent with all the facts. The testator, so far as appears, was a man of small means, comparatively; and if he had advanced $2,000, for which the note was given, it seems incredible that some one of the family should not be aware of the fact, and able to explain or prove the transaction. We think the fair inference is that the note, although absolute in form, was given simply as security for performance of the obligation to pay interest during the lifetime of the testator, and that the same was, in legal effect, canceled at his death. For this error the decree must be reversed, with costs.  