By the Court
Warner, Judge.The single question involved in this case is, whether the defendant in .error, from the facts stated in the record, ought to have exhibited an inventory to the Court of Ordinary, as the executor'of James McLaren, deceased. It appears the defendant and the deceased were partners in trade, and the only question made at the bar was, whether the defendant, as executor, ought to make an inventory of his testator’s interest in the co-partnership property. The defendant in error insists, he was entitled to control the partnership property, as survivor, for the settlement of the co-partnership debts, and that the same cannot be considered as assets in his hands, as executor. Although it is true the surviving partner has the right to control the joint partnership property, for the purpose of winding up the co-partnership business, yet, when that is done, the legal representatives of the deceased partner would be entitled to his share of the surplus, if any. By the 1st section of the act of 1764, every executor and administrator is required to cause to be made, on oath, a true and *291just appraisement of all and. singular the goods and chattels of his testator or intestate, together with a full and perfect inventory of all and singular the rights and credits of the said testator or intestate, whether the same be in ready money, judgments, bonds, or other specialties, or notes of hand ; together with a list or schedule of the boolrs of account of such testator; to which bookstall parties concerned shall, upon request, and at convenient times, have free access : and every such executor and administrator shall be, and they are hereby, made chargeable with the real value of the goods and chattels in said inventory contained, and with so much of the credits only as he, she, or they, after due care and diligence, shall recover and receive, in like manner as executors are made chargeable, by the common and statute law of England. — Prin. Dig- 222. By this act, the executor is required to make a full and perfect inventory, of all and singular the rights and credits of his testator; but is only made chargeable with so much thereof, as he may recover and receive, after due care and diligence.
The testator, clearly, had a right and an interest in the co-partnership effects, of which, in our judgment, the defendant ought to have exhibited an inventory. At any rate, he ought to have stated his interest in the co-partnership property, to the best of his ability ; the amount of slock on hand at the time of his death ; the amount of debts due from, and to, the co-partnership, for the information of persons interested in the testator’s estate. This would be important where the persons interested in the testator’s estate were infants, or resided out of the State. In the case of Phillips vs. Bignell et al., Sir John Nicholl held, the executor was bound to exhibit an inventory of a probable, or contingent interest. — - 1st English Ecclesiastical Rep. 79 — See Middleton vs. Rushout, ib. 81. In Reeves vs. Freeling, (ib. 185,) an inventory was called for, which was resisted, on the ground it would be attended with great difficulty, as the deceased was engaged in a banking-house, and his profits would not be concluded till May, 1813. The inventory was called for in 1812. Sir John Nicholl, in giving judgment, says : “ I have known the court to exercise a judgment on these questions, particularly in complicated cases. It cannot be necessary for the party to enter into all the accounts of the banking-house. The court will in this case exercise a discretion as to the sort of inventory it will accept. It cannot be difficult to make one out. There must be an account for the rest of the family; and though the person calling for the inventory has but a contingent interest, he has a right to a constat of the effects.” As before remarked, infants and absent persons may be deeply interested in the estate of the deceased partner, and if there was no inventory thereof on the records of the proper court, it might be extremely difficult, especially after a lapse of years, to trace the effects into the hands of the executor. Reason and sound policy seem to require an inventory at the hands of the executor, and the statute requires it. The Court of Ordinary will not require an mpossibility ; but will exercise a sound discretion as to the kind of inventory they will accept. The statute contemplates, he shall make as full and perfect inventory as shall be in his power.
Let the judgment of the court below be reversed.