
    ABRAHAM P. YOUNG v. THE EXECUTORS OF JACOB YOUNG.
    Award set aside, on the ground that the arbitrators acted on a matter not within the submission.
    Jacob Young died June 2d, 1843, leaving a will, dated July 1st, 1840, of which he appointed Samuel Stewart, Philip Fine, Edward Hunt, and his son, Abraham P. Young, the complainant, executors. Fine died in May, 1845. Differences having arrisen between the complainant and the other surviving executors, they agreed to submit the same to arbitration, and, thereupon, the complainant, in his individual capacity and also as executor, and the said Stewart and Hunt, the other surviving executors, on the 13th June, 1845, entered into an agreement under seal, by which they submitted all matters in difference as sfet forth in the schedule annexed to the said agreement, to three persons therein named, arbitrators by them chosen, and mutually covenanted and agreed, under the penalty of $500, to abide and perform the award of the said arbitrators unanimously rendered.
    The schedule annexed to the agreement contained, on the one side, an account of the complainant against the estate of the testator, commencing March 13th, 1814, and running to and including the year 1833, and consisting of charges for rails and fencing stuff, lumber, shingles, glass, carpenter and mason work, work done at house, work at barn, hauling stone and timber, cutting timber, boarding hands, money paid carpenter and mason, lumber for grain-house, carpenter and mason work, shingles and nails; and, on the other side, a statement of the claim of the executors against the said Abraham P. Young, as follows s
    
      “ Balance on bond dated January 23d, 1819, penal sum $950, conditioned for payment of $475 on or before May 1st, 1819, with interest from day of payment, drawn by Abraham P. Young and Jacob Young to Philip Slout, paid off by Jacob Young/7
    The testator had three sons, the complainant and two others, and had, in his lifetime, put each of them in possession of a farm ; and had put buildings on the farms, respectively, of which he had put the other two sons, severally, in possession, at his own expense. A large part of Abraham’s account annexed, as aforesaid, to the agreement of submission was for materials furnished and work and labor done in putting up buildings on the farm of which he had been put in possession. The several farms were devised to the sons severally in possession.
    It was admitted before the arbitrators that an agreement liad been made between the father and the sons, by which the several farms were allotted to the sons severally, and to be devised to them respectively, on their paying a certain sum per acre. And it was also admitted before the arbitrators, that Abraham was charged in the will $4 an acre more for the farm devised to him than by the said agreement he was to be charged.
    The arbitrators admitted evidence that Abraham had out and sold timber from the farm in his possession, (afterwards devised to him,) in the lifetime oí the testator, and twenty years prior to the agreement of submission, and, considering this wood and timber as a set-off against his whole account, allowed him nothing on his account, and made an award against him for the amount of the principal and interest of the bond stated in the schedule annexed to the agreement of submission.
    The bill was filed to set aside the award.
    An answer was put in by the executors, and testimony was taken.
    P. B. Kennedy and P. D. Vroom, for the complainant.
    They cited 10 Wend. 498; 1 John. Ch. 313; 2 Paige 193; 15 John. Rep. 511, 229; 1 Green’s Rep. 68 ; 2 South. Rep. 721 ; 3 John. Rep. 427 ; 9 Ib. 141 ; 1 Green’s Ch. Rep. 297, 301 ; 3 Atk. 468 ; 3 Wash. C. C. Rep. 45; Coxe’s N. J. Rep. 385; 2 Penn. Rep. 932; 5 Halst. Rep. 17; 2 Green’s Rep. 333.
    
      H. McMiller and S. G. Potts, contra.
    
    They cited 10 John. Rep. 143 ; 3 Ib. 367 ; 2 Ib. 62; 1 McCord 408 ; 2 Bibb 456; 3 Ib. 441; 1 Ward. 236 ; 2 Chiven 638; 1 Ib. 117; 5 Wheat. 394; 10 Wend. 589; 14 John. Rep. 96; 3 Bl. Com. 16; 16 Vt. Rep. 450; 7 Cowen 186; 3 Caines 166; 1 Lord Raym. 248.
   The Chancellor.

The submission was of Abraham’s account against the estate, on the one side, and of the claim of the executors on the bond on the other. Both were very stale demands. The bond was due in May, 1819. When the testator paid it, if he did pay it, did not appear. There was a credit on it, March 17th, 1823, of $22.08, signed by the testator.

On this submission, both parties were at liberty to rely on the lapse of time as a bar, or neither was. The arbitrators could not capriciously give effect to the lapse of time as against one, and refuse to do so as against the other. That was not the. course adopted by the arbitrators. It is clear that they reached their result by permitting the executors to show that Abraham had cut from the farm in his possession, wood and timber, twenty years before, and by offsetting this wood and timber against his account, and charging him with the principal and interest of the bond, notwithstanding the lapse of time and his insistment before them that he had paid the bond.

Would Abraham have entered into a submission which would allow the executors to claim against his account the value of the wood and timber he had cut from the farm in his possession, and which had since been devised to him ? He did not make such a submission. The particular subjects of submission were designated. And the case shows sufficient reason why Abraham should not agree to submit the matter of the wood and timber. The father paid for the buildings put on the farms of the other two sons. Should the wood and timber which Abraham took off the farm devised to him be considered as a payment by the father for the buildings put on this farm ?

Again, it was admitted before the arbitrators that Abraham was charged in the will $4 an acre more for the farm devised to him than he was to have been charged under the agreement, also admitted to have been made, by which the several farms were allotted to the several sons, and were to be devised to them on paying a certain sum per acre. These are abundant reasons why Abraham should not make such a submission as would authorize the arbitrators to charge him with the wood and timber he had taken off the farm allotted and devised to him. The arbitrators did charge him with this wood and timber; and in doing so they acted upon a matter not within the submission. For this reason, the award will be set aside.

Order accordingly»  