
    *Wheatley v. Martin’s Adm’r.
    February, 1835,
    Richmond.
    (Absent Brockenbrough, J.)
    Arbitration and Award — Judgment on Award — Time of Entry. — A submission to arbitration, by rule of court, of a controversy in a suit pending, is not within the statute concerning awards, 1 Rev. Code, ch. 114, and so, the court may proceed to judgment on the award at the same term to which it is returned.
    Same — Necessity of Joining All Arbitrators. — Submission to the arbitration of three or any two; two join in the award, giving notice of the award concluded and being about to be returned, to the third, who does not join in it: Held, this is no objection to the validity of the award.
    Same — Death of Plaintiff after Submission. — After submission to arbitration by rule of court, plaintiff dies, and suit is revived by his administrator; the administrator of plaintiff and the defendant proceed in the arbitration, without any new submission, and an award is made: Held, the death of the plaintiff did not avoid the submission, and the award under it is good.
    Same — Submission by Executor. — An executor has a right to submit any claim, for or against his testator’s estate, to arbitration; and the award made pursuant to such submission binds the estate; but if injustice be thereby done the testator’s estate, the executor may be chargeable therefor, as for a devastavit.
    Chancery Court — Setting Aside Award. — A court of equity will not set aside an award, for objections, which, if available at all, were available at law, but which the party did not avail himself of at law -there being no surprize proved, though it is alleged, and no fraud proved or alleged.
    Same — Same.—It is equally the rule of equity as of law, that the reasons for setting aside an award, must appear on its face, or there must be mis-behaviour in the arbitrators, or some palpable mistake.
    In an action of assumpsit, brought by Francis Martin against Alexander Kelly, administrator with the will annexed of Charles Martin deceased, in the circuit court of Fauquier, an order of court was made by consent of parties, in August 1822, referring the matters in controversy to John Scott, Thomas Jennings and John Marr, or any two of them, whose award should be made the judgment of the court. The subjects of controversy seem to have been involved in much doubt and difficulty, and *the case was pending before the arbitrators many years, during which the plaintiff died, namely, in 1824. The suit was revived in the name of Lemuel Martin his administrator, in 1826; and the interests of his estate were represented before the arbitrators, by the administrator, without any new rule of submission. At length, two of the arbitrators, Jennings and Marr, made an award, in general terms, that the plaintiff should recover against the defendant 3028 dollars with interest on 1582 dollars from the 1st January 1828 till paid, and the costs. The award was dated the 18th June 1828, and was returned the day after to the court then in session, and the court proceeded immediately to enter judgment on the award, for Lemuel Martin administrator of Francis, the original plaintiff, against Kelly, for the amount awarded, to be levied de bonis testatoris. To the entering of this judgment, Kelly made no opposition; and though he lived till January 1829, he took no measures to contest the justice of the award and judgment thereon rendered. A ■fieri facias was sued out on the judgment, in Kelly’s lifetime, to be levied de bonis testatoris, and was returned nulla bona: and Kelly dying soon afterwards, the creditor brought an action of debt on his bond for the due administration of his testator Charles Martin’s estate, against James Wheatley, one of the sureties, and the only surviving obligor therein bound, to recover the money awarded and adjudged against Kelly, on the ground of a devastavit by him committed of his testator’s estate.
    Wheatley, having taken administration de bonis non of Charles Martin’s estate, in that character and in his own right, exhibited a bill against Lemuel Martin administrator of Francis Martin, superiour court of chancery of Fredericksburg, in which he impugned the award, and the judgment thereon rendered, on the following grounds — 1. That Kelly was prevented by ill health from attending before the arbitrators, during the latter *'part of the time that the controversy was pending before them, in consequence of which the interests of his testator’s estate were not fully represented. 2. That Scott, ’one of the arbitrators, did not join in the award, and was not present at the final act of arbitration, though he had been joined with the other two in the submission, in order to give such validity to the adjustment of the account, as would be satisfactory to the parties interested (meaning Charles Martin’s legatees), and tend to prevent future controversy; that Scott acted with the other arbitrators at different times, but in the progress of the business, not deeming his attendance at all times necessary, he permitted them to proceed in his absence, with the understanding that after the examination of witnesses and the collection of the facts, the result of their labours should be submitted to him for his consideration and concurrence. 3. That the award was returned, and judgment immediately entered upon it by the court, on the last day of her term, in the absence of Kelly and of his counsel, without notice to either, of the return of the award; nor was Kelly apprised of the proceeding till after the term, so that he had no opportunity of taking exceptions to the award, and the judgment thereon was obtained by surprize. 4. That Kelly was disabled by bad health, at the time the award was made and returned and the judgment entered thereon, from giving his personal attention to the business, and so continued ever after till his death; which was the reason he took no measures to obtain relief against the award and judgment, in his lifetime. The bill then shewed, that Charles Martin was the father of Francis Martin, who, after receiving and enjoying a full share of his father’s bounty, during his, life and at his death, raised a claim against his estate after his death, founded upon pretended accounts of long standing, and brought the action to recover it, in which the arbitration and award was made; and alleged many circumstances to *shew, that the claim, and the award in favour of it, were unjust and inequitable. And on these grounds, without any allegation of partiality or unfairness in the conduct of the arbitrators, the bill prayed, that the award should be set aside; that the accounts between Francis Martin and his father Charles, should be opened, examined, and fairly settled; and that, mean time, the administrator of Francis should be in-joined from further proceeding in his action at law against Wheatly, as surety of Kelly, in his bond for the due administration of Charles Martin’s estate.
    The chancellor awarded the injunction, on the usual terms of giving an injunction bond &c. and upon condition, moreover, that Wheatley should confess judgment in the action brought against him on the administration bond, for the amount of the judgment on the award against Kelly his principal.
    Lemuel Martin, administrator of Francis, in his answer to the bill, said, he had no personal knowledge upon the subject to disclose, and no papers relating to it except his intestate’s books, which he had told Wheatley he was at liberty to inspect; and he insisted on the award.
    It appeared, from the parol evidence in the cause, consisting chiefly of the depositions of the arbitrators, 1. that there were a great many meetings of the arbitrators, which were adjourned from time to time at the instance of the parties: that notice of the meeting's was always given to the parties; Kelly, though in ill health, frequently attended in person; he attended after the death of Francis Martin the original plaintiff, and after the arbitrator Scott ceased to attend; and he was generally represented by counsel: and that the arbitrators received and considered all the evidence, that either party offered, giving them full time to collect their evidence. 2. That the arbitrator Scott attended sometimes, and assisted in noting down the evidence, but ^afterwards desired the other arbitrators to proceed without him in taking notes of the evidence, saying that finally it might happen that he would unite in making the award, in which case he would found his judgment on the minutes of the evidence; but that it was never understood to be indispensably requisite that Scott should be present at the final act of arbitration, and should join in the award; and that when the award was about to be returned, Scott was informed of it, and so far from making any objection, or desiring to consider it, he said, that from his recollection of the evidence, he believed it was such an award as he would have signed. 3. That the award was returned to the court then in session, on the 19th June 1828, and the court immediately proceeded to judgment on it, but the court did not adjourn for the term, till the 24th: that Kelly’s counsel was apprised of the award made and returned, and was present in court at the time the judgment was entered upon it. 4. That though Kelly complained, that the court acted hastily and prematurely in proceeding to render judgment on the award, he declared that he would pursue the litigation no further.
    The notes of the parol evidence, and all the papers, which were before the arbitrators, together with some new evidence touching the justice of the award, were also filed; but neither the court below, nor this court, thought it proper to look into such evidence.
    Such being the state of the case on the original bill, Wheatley filed a supplemental bill, in which he shewed, that Thomas Green, George Martin and Francis Martin (the intestate of Lemuel Martin, the plaintiff at law), were joint sureties with him for Kelly in his bond for the due administration of Charles Martin’s estate; and these his co-sureties being dead, he made their representatives parties defendants, and demanded of them contribution of their equal portions of any debt with which Kelly should ultimately be found chargeable, for *a devastavit of Charles Martin’s estate. And he alleged further, that Kelly had not settled his accounts of administration of Charles Martin’s estate; and he made his executor a party defendant, and prayed an account of the administration, in order that if upon that account, he should be found debtor to the estate, his representative might be compelled to satisfy the claim of Charles Martin’s administrator, when the amount of that claim should be adjusted and ascertained, in exoneration of the sureties in Kelly’s administration bond. He then alleged, that he, Wheatley, Gideon Brown deceased (whose representative he also made party defendant), George Martin and Francis Martin, were entitled to the residuum of Charles Martin’s estate; and that, he Wheatley, George Martin and Francis Martin, had each, severally, made purchases to a considerable amount at Kelly’s sales of that testator’s estate, which debts yet remained unpaid; and he insisted, that the debt due from Francis Martin to Kelly as administrator of Charles Martin, should be set off against the claim which the representative of Francis should establish against Charles’s estate. And the bill prayred that accounts should be taken and settled, between the legatees of the residuum of Charles Martin’s estate, and Kelly the administrator thereof, so as to ascertain the rights and liabilities of each and all of the parties.
    The parties defendants to the supplemental bill, having all been convented before the court, and the cause having been transferred to the circuit superiour court of Fauquier, that court, on the hearing, refused to set aside the award and judgment thereon, impugned in the original bill, but on the contrary confirmed the same; and it refused also to dissolve the injunction which had been awarded to Wheatley. But, finding sufficient proof of devastavit committed by Kelly, of his testator Charles Martin’s estate, to an amount exceeding the balance due to Francis Martin’s estate upon the award and judgment, *after deducting from the amount awarded and adjudged, the sum due from Francis Martin’s estate for purchases by him made at Kelly’s sales of Charles Martin’s estate, which balance was ascertained to be 1525 dollars with interest from the 1st January 1828; the court, therefore, decreed, that Kelly’s executor should pay Francis Martin’s administrator that balance of 1525 dollars with interest &c. out of the assets of Kelly’s estate. And then the court directed all the accounts prayed in the supplemental bill.
    Wheatley, complaining that the decree was erroneous in confirming the award, instead of setting it aside, applied to a judge of this court for an appeal, which was allowed.
    The cause was argued here, by Harrison for the appellant, and Stanard for the ap-pellee, Lemuel Martin, administrator of Francis Martin.
    I. The four specific allegations impugning the award and judgment thereon, set forth in the original bill, were first examined, in three aspects: 1. whether those allegations were founded in fact? 2. whether, if true in fact, they would have been good ground to impugn the award and judgment at law, or either of them? and 3. whether, supposing the award might have been set aside at law, or the judgment thereon reversed, for the reasons alleged in the bill, such reasons afforded good ground for relief in equity?
    II. Harrison next entered into an examination of the evidence on which the arbitrators had made the award, and the additional evidence touching the justice of it, taken and filed in this cause, and contended, that the award was unjust and inequitable. But Stanard maintained, that the court could not properly even look into this matter, seeing that it was wholly extrinsic of the award, and that no partiality or unfairness was imputed to the arbitrators.
    *111. There were two new points made by Harris on in the argument here, for the lirst time, and earnestly debated: 1. Whether the death of Francis Martin, after the rule of court referring the cause to arbitration, and before the award was made, did not rescind and avoid the submission, and so put an end to the authority of the arbitrators to proceed further in the arbitration? And to shew, that the death of the party had that effect, he cited Potts v. Ward, 1 Marsh, 366, and Cooper v. Johnson, 2 Barn. & Aid. 394. Stanard answered, that supposing this true, yet it only shewed error in the judgment on the award, for which it might have been superseded at law, but it was no ground for belief in equity. But, he said, the cases cited were not in point: for there, the arbitrators proceeded without notice to the representative of the deceased party; whereas here, notice was given to the administrator of the deceased party, and the other party continued afterwards to attend before the arbitrators.
    2. Harrison insisted, that considering that the parties really interested in the controversy, were the legatees of Charles Martin, and that they were all sui juris, Kelly, the administrator, had no right to submit the case to arbitration; the interests of the legatees ought not to be at all affected by the award; and the court of equity ought, for this reason alone, to relieve them against the award and judgment, seeing that the legatees had no opportunity of contesting the award in the court of law, and no right to be heard there. Stanard answered, that the administrator had full power to submit the case to arbitration, and the award was binding, though if it was injurious to his testator’s estate, he was accountable to the legatees to the extent of the injury done by it, as for a devastavit; Kyd on Awards, ch. 2, p. 29; Toll, on Ex’ors 425. 
    
    
      
      Executors and Administrators — Authority—Submission to Arbitration. — Although an executor has a right to submit a matter to arbitration, yet if inj ustice should be done the trust estate by such submission, the executor is responsible as for a dev-astavit. The principal case is cited, in support of this proposition, in Nelson v. Cornwell, 11 Gratt. 748; Tennant v. Divine, 24 W. Va. 391; Wamsley v. Wamsley, 26 W. Va. 46, 47. The principal case is cited with approvalin Brewer v. Hutton, 45 W. Va. 116, 30 S. E. Rep. 85. See foot-note to Nelson v. Cornwell, 11 Gratt. 724; and monographic note on “Executors and Administrators ” appended to Rosser v. Depriest, 5 Gratt. 6.
      In District of Columbia v. Bailey, 18 Sup. Ct. Rep. 872, the court said: “It is true that an executor, at common law, had the power to submit to an award. But this power arose by reason of the full dominion which the law gave the executor or administrator over the assets, and the full discretion which it vested in him for the settlement and liquidation of all claims due to and from the estate. Wheatley v. Martin, 6 Leigh 62; Wamsley v. Wamsley, 26 W. Va. 46; Wood v. Tunnicliff, 74 N. Y. 43.”
      Same — Same.—An administrator is invested by law with full dominion over the assets, and with full discretion for the liquidation and settlement of all claims due to or from the estate; these powers being necessary to a proper discharge of the duties of his office. He may make settlements and compromises with creditors, and give them confessions of judgments. Boyd v. Oglesby, 23 Gratt. 684, citing Braxton v. Harrison, 11 Gratt. 54; Wheatley v. Martin, 6 Leigh 62, 71. The principal case is cited in Braxton v. Harrison, 11 Gratt. 55, and note.
      
    
    
      
       Chancery Court — Setting Aside Award. — The principal case is cited in Fluharty v. Beatty, 22 W. Va. 706, to the point that a court of equity will set aside an award for fraud, collusion, corruption or gross misconduct in the arbitrators. See generally, mono-graphic note on “Arbitration and Award" appended to Bassett v. Cunningham, 9 Gratt. 684, and monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      American edition — Ptnladelpliia, 1808.
    
    
      
      Gordon's Am. edi. — Philadelphia, 1824.
    
   *CARR, J.

This award was made under a rule of court in a pending cause, and, therefore, was not within the statute concerning awards, 1 Rev. Code, ch. 11, p. 454. Consequently, there was no fixed time within which objections must have been taken to it, and for which it must have lain, before it could be entered as the judgment of the court; and there was no error in entering it as the judgment of the court, at the term to which it was returned. But if this had been erroneous, it was a legal error, palpable on the face of the proceedings, and an appellate court of law could have corrected it. Nor was there surprize in entering this award as the judgment of the court; for it is proved that both Scott, the arbitrator who did not join in the award, and Kelly’s counsel, had notice of it; and the court sat five days after that on which the judgment was entered. The allegation, that it was any part of the order, or the understanding of the parties, that the presence of Mr. Scott was indispensable to the making up of the award, is also clearly disproved. It is equally a rule of law and equity that the reasons for setting aside an award, must appear on the face of it, or there must be misbehaviour of the arbitrators, or some palpable mistake. T.he cases to prove this are too numerous and familiar to require citation. And nothing is considered to be apparent on the award, but what forms a part of it: no calculations, or any of the grounds of it, unless incorporated with it, or annexed to it, at the time of delivery, are to be regarded or received as reasons or grounds to avoid it. Taylor v. Nicholson, 1 Hen. & Munf. 67. In this case, there are no facts or circumstances, calculations or principles, incorporated in or annexed to the award; nothing to guide us on the subject. As to misbehaviour, it is not suggested in either of the bills; and if it had been alleged, it is wholly disproved by the facts, for I have never seen a case in which the arbitrators seem to have been more entirely clear of partiality.

*Upon every ground, I think the decree must be affirmed.

CABELL, J.

It is competent to an executor or administrator to submit to arbitration, any controversy concerning the estate, whether the estate claims to be a debtor or’ creditor. This results, necessarily, from the full dominion which the law gives him over the assets, and the full discretion which it vests in him for the settlement and liquidation of all claims due to or from the estate. And although a mere submission to arbitration will not bind the executor or administrator, personally, to pay the sum awarded out of his own estate, yet the award is binding on him in his fiduciary character, and consequently on the assets of the estate which he represents: Pearson v. Henry, 5 T. R. 6; Lyle v. Rodgers, 5 Wheat. 394. And, so far as relates to debtors and creditors, parties to the award, it is binding on legatees and distributees, in the same manner, as if the adjustment and liquidation had been made by the executor or administrator, without an award, in virtue of the general powers belonging to his fiduciary character. If, indeed, injury has been done to legatees and distributees, by an award giving too much against the estate, or too little in its favour, that injury may be redressed; but it can be done only by charging it as a de-vastavit by the executor or administrator, on the settlement of his accounts. I allude to cases free from fraud; for we know that fraud will vitiate every transaction. In this case, no* fraud is alleged or proved: there is no misbehaviour or partiality proved in the arbitrators; and the award, on its face, is free from objection. The decree must be affirmed.

BROOKE, J. I concur in affirming the decree.

*TUCKER, P.

I am of opinion, that if there was any error in the proceedings of the arbitrators in this case, in deciding the cause without the co-operation of Mr. Scott, that error might have been corrected in the court of law, at the instance of Kelly the administrator. The same remark applies equally to the objection, that the submission was revoked by the death of Francis Martin, or, if this objection should have been taken by the court of law of its own mere motion, the error of omission should have been corrected by appeal. It is alleged, however, that Kelly was prevented from taking these objections before the court of law, by the return of the award without notice; and by the premature judgment of the court upon it. As to the fact, it is positively denied that the award was returned without notice; and the notice that it was about to be made up, is clearly proved. It was made up on the 18th, and returned on the 19th June, and the counsel of Kelly was attending court, when he was informed that the award was about to be made up, It is proved, too, that notice was given to Mr. Scott on the day the award was filed, that it would presently be filed ; and Mr. Scott was informed of the character of it. The judgment was rendered in open court; and, according to the accustomed practice, I can have no doubt, the party, or his counsel, was called upon to say if there was any thing to be objected to the judgment before it was rendered. Kelly himself lived some time after the judgment, declared he would not carry the litigation farther, and suffered an execution to go out, and to be returned no effects, without applying for relief to a court of equity. All the other parties in interest excepting Wheatley, seem also to have acquiesced; and I am, therefore, of opinion, that the omission of Kelly to contest the award, was not the effect of surprize, but of a willingness to acquiesce in the decision which had terminated a long and unpleasant controversy. Under these circumstances, it *may safely be affirmed, that if Kelly were in being, he would not be received to set up, in equity, the defence against .this recovery which is now advanced by Wheatley. The question then results, whether the plaintiff either in his character of surety for Kelly, as administrator de bonis non, or as a legatee, could make this defence? I hold that he cannot. In either character, the award and the judgment thereupon is conclusive against the estate in favour of the creditor, unless a fraudulent collusion is charged and proved between him and the administrator. For an executor or administrator may lawfully submit to arbitration ; and though he will be chargeable with a devastavit if the estate is thereby injured, yet the submission is valid; and if so, the award and judgment thereupon must be conclusive of the rights of the parties, unless it is alleged to have been obtained per fraudem. Moreover, if Kelly, who represented the estate at the date of these transactions, was concluded, — if the estate in his hands was bound by the judgment, — it cannot be conceived, that by his death, the rights of the creditor were to be impaired, and those of the estate enlarged. The rights of the parties cannot rest upon the accident of life or death. It were absurd to say, that the award and judgment were conclusive, provided Kelly lived, but that they were not so, in the event of his death, and the appointment of an administrator de bonis non. I am therefore of opinion, that the circuit court properly refused to set aside the award, and might with great propriety have dissolved the injunction. The decree against Kelly’s administrator, in which that administrator has acquiesced, was the most favourable course that could have been taken for the plaintiff. And though it be indeed substantially against Charles Martin’s estate, yet, if upon the account that is directed, the persons concerned in the estate can shew fraud on the part of Kelly, or can even shew that the estate has sustained damage by the submission, Kelly’s *estate may be made to bear the loss. The bill, however, does not pretend to allege fraud on Kelly’s part, and that must be charged, before proof of it can be admitted. Upon the whole, I concur in the opinion to affirm the decree.

Decree affirmed.  