
    Scott J. Tallman vs. Henry Tallman.
    P. died, leaving a will, whereby he bequeathed nothing to his eldest son, S., except certain debts due from S. to P., but devised the bulk of his property to a younger son, H., and appointed as executors of his will his widow, E., and his son H., who jointly took out letters testamentary. Afterwards, E. being still alive, S. and H. submitted to arbitration “ all matters and things whatsoever arising out of the will and estate of P., and the just and equitable division thereof, as also any promise, agreement or contract alleged to have been made by H. to S., touching the settlement of said estate, and all demands between the parties relating thereto.” It was held, that H. entered mto the submission in his individual capacity, and not in his capacity of executor.
    P. by his will devised and bequeathed the bulk of his property to a younger son, H., and nothing to his eldest son, S., except certain debts due from him. S. was subsequently declared a bankrupt, and his property assigned to an assignee. After receiving his discharge, S. entered, with H., into a submission to arbitration, “ to determine on the broadest principles of law, equity, and substantial justice and right, under all the circumstances existing, and in full view of the relation of the parties as brothers, and as children and heirs at law of P., what sum of money, or what amount of property, H. should pay or secure to S. or his heirs, as a just and fair and equitable equivalent for his portion of the estate of P., or to fulfil any agreement or promise of H. to S., touching the settlement of the same.” The arbitrators, after taking into consideration the previous bankruptcy of S., made an award in his favor. It was held, that the title to sue thereon was in S., and not in his assignee in bankruptcy.
    Where all claims and demands between the parties are submitted to arbitration, it will be intended, that the arbitrators have decided all matters submitted to them, although they do not so state in their award, unless the contrary appears ; especially when the arbitrators testify, that they heard and investigated all claims and demands between the parties, to which they wished the arbitrators to direct their attention.
    Where a submission to arbitration, to determine what amount H. should pay S., and “ for a full release to H. of all S.’s claim to the estate of P.,” of whose will H. was executor, provided that the arbitrators should “ fix the terms and times of payment, and the forms of all releases ”; it was held, that an award in favor of S., fixing the terms and times of payment, and directing that S., on payment of the sums awarded, should by deed forever discharge H. and the estate of P. from all and every claim and demand whatever, sufficiently followed the submission.
    Under a submission giving power to the arbitrators to award as to costs, an award that one party shall pay to the other the costs of reference, taxed at a certain sum, is good.
    Tk;s was an action of debt upon an award, hereinafter set forth; and was submitted to the court upon certain depositions and documents, from which ■ the following facts appeared ••—
    The plaintiff was the eldest son, and the defendant a younger son, of Pel eg Tallman, of Bath, in the county of Lincoln and state of Maine, who died early in the year L841, leaving a will. This will contained no provision in favor of the plaintiff, except a bequest to him of all sums of money due from him to the testator at the time of the decease of the latter The testator, after devising to the defendant for life, several parcels of real estate in the city of Boston and elsewhere, with remainder to the defendant’s sons, and making sundry devises and bequests to his widow, Eleanor Tallman, and his other children, constituted the defendant his sole residuary devisee and legatee, and appointed his widow and the defendant the executors of his will. The will was, on the 29th of March, 1841, allowed by the judge of probate for the county of Lincoln ; Eleanor Tallman and Henry Tallman gave bonds for the due execution of their trust as executors; and letters testamentary were duly issued to them jointly.
    On the 5th of February, 1842, the plaintiff filed a petition, in the district court of the United States for the district of Maine, to be declared a bankrupt under the bankrupt act of 1841, and was so declared accordingly on the 15th of March following; on the 17th of the same month an assignee was appointed; and on the 16th of July, 1842, the plaintiff received a discharge.
    The plaintiff and defendant, on the 14th of November, 1843, entered into an agreement of submission to arbitration, under seal, whereby they agreed and covenanted “ to submit all matters and things whatsoever arising out of the will and estate of Peleg Tallman, and the just and equitable division thereof, as also any promise, agreement, or contract alleged to have been made by the said Henry Tallman to the said Scott J. Tallman, touching the settlement of said estate and all demands between the parties relating thereto, to the arbitrament, award, decision, and final determination” of three arbitrators; giving to the arbitrators “ full power in the premises to award, arbitrate, and determine, on the broadest principles of law, equity, and substantial justice and right, under all the circumstances existing, and in full view of the relation of the parties a.; brothers, and as children and heirs at law of the said Peleg Tallman, what sum of money, or what amount of property the said Henry Tallman shall pay or secure to the said Scott J. Tallman or his heirs, as a just and fair and equitable equivalent for his portion of said property, or to fulfil any agreement or promise of said Henry, and for a full and absolute release to said Henry of all claim to tbe estate of his late father; ” and giving the arbitrators power to admit such evidence as to them should seem proper, and “ to award as to costs; ” “ said award, arbitrament, and determination in the premises to be drawn out by them in writing, and a copy thereof furnished to each of said parties in a reasonable time after the said arbitrators shall have made up the same in the premises.” And it was further agreed that the arbitrators should “ fix the terms and times of payment, and the forms of all releases.”
    The arbitrators named in the submission, on the 29th oí September, 1845, made the following award : —
    “ Whereas, Scott J. Tallman and Henry Tallman, on the fourteenth day of November, in the year eighteen hundred and forty-three, by their agreement in writing, under their hands and seals, submitted the determination. and decision of certain controversies and questions therein stated, to the subscribers , who having notified, met and fully heard the parties to said agreement of submission, their several proofs and evidence and arguments, and maturely considered the same, are of opinion and do accordingly award and determine, that said Henry Tallman pay to said Scott J. Tallman the sum of nine thousand nine hundred and ninety dollars, in manner following, viz., four hundred and ninety dollars in sixty days, four thousand seven hundred and fifty dollars in one year, and four thousand seven hundred and fifty dollars in two years, with interest on each of said sums from the date hereof, and pay to said Scott J. Tallman the costs of reference, taxed at two hundred thirty-six dollars forty-three cents. And the subscribers, the arbitrators agreed upon in said submission, do further determine and award, that upon the payment of all the aforesaid sums by said Henry, the said Scott J. Tallman, by his certain deed in writing under his hand and seal, acquit, exonerate, and forever discharge the said Henry Tallman and the estate of the late Peleg Tallman, in said agreement mentioned, of and from all and every daim and demand whatever.”
    Samuel Fessenden, a witness examined by the plaintiff, testified in his deposition, that he wrote the above submission, ¡V the request of the parties, and read it over to them, and saw the parties sign, seal, and deliver it as their deed, at the house, and in the presence, of Eleanor Tallman, the mother of the parties ; that the amount of property given by Peleg Tallman in his will to the defendant was estimated by the parties at between two and three hundred thousand dollars; that there was a full hearing before the arbitrators, in September, 1845, on all questions submitted, to which the parties wished to direct their attention ; that the questions raised were argued by the counsel on both sides, the witness being one of the plaintiff’s counsel; that the claims made by the plaintiff against the defendant were those stated in the submission; that certain claims and demands of the defendant against the plaintiff were brought before the arbitrators; that the previous bankruptcy of the plaintiff was admitted by both parties at the hearing, and that the defendant objected that he was not bound to pay the plaintiff any thing, on the ground that any claim which he might have had, had passed to his assignee in bankruptcy, in reply to which it was urged, that whatever might be awarded by the arbitrators would grow out of the submission; and that a claim was made by the defendant against the plaintiff for a debt alleged to be due from the plaintiff to their father, in answer to which the plaintiff relied on the provision in his favor in the will. He also testified that the award was made in duplicate, and, according to his impression, delivered to the parties, or their counsel, by the arbitrators; that he was confident that one part was delivered to him as counsel for Scott J. Tallman, as the award of the arbitrators on the matters submitted; but that he could not be sure as to the other part, and could not now state what was done with the other part.
    Two of the arbitrators, the third being dead, testified that the hearing took place in September, 1845 ; that the arbitrators heard and investigated all the claims and demands of the parties respectively against each other ; that both parties appeared with their counsel; that the bankruptcy of the plaintiff was admitted or proved; and that a copy of his schedule filed in bankruptcy was introduced by the defendant at the hearing, to show that the plaintiff had not inventoried the claim among his assets; that the claims of the plaintiff against the defendant were those stated in the submission, and that the plaintiff alleged that the defendant agreed to pay him ten thousand dollars, if he would not oppose the probate of their father’s will, which the defendant denied; that the defendant made some claims against the plaintiff, which were taken into consideration by the arbitrators ; that it was their intention to determine by their award all matters in dispute between the parties, submitted to them ; and that they made the award to Scott in his own right, for his individual benefit, and did not consider they had any thing to do with his assignee.
    On the point of the delivery of the award, one of the arbitrators, the chairman, testified that the award was delivered to the parties, as the award of the arbitrators, on the matters submitted to them, and that he supposed that the award was accepted as such by the parties, and that a copy was furnished to each of the parties; that the award was made in duplicate and signed, and immediately delivered to the parties or their counsel, according to the best of his recollection; that he did not recollect whether the award was delivered to the defendant or his counsel or sent to him by mail. The other arbitrator testified that a copy of the award was delivered in his presence to the plaintiff, and a copy of it, to the best of his recollection, was sent to the defendant by the chairman; but that he did not know that the defendant ever saw a copy of the award.
    The plaintiff also put into the case the deposition of Benjamin Randall, who testified, that he was a counsellor at law, residing at Bath; that soon after the date of the award above mentioned, the defendant came to him for the purpose of consulting him on the validity of an award like the one above set forth ; that the defendant showed him such an award or a copy thereof, but as he had not a copy of the submission, little consideration of the subject was had; that he concluded he asked his advice only as a brother lawyer, as he paid the witness nothing, and the witness did not make any charge therefor.
    There was also in the case the deposition of a witness, in whose presence, the plaintiff, on the 13th of November, 1847, exhibited to the defendant the submission and award, and demanded payment of the sum awarded.
    The case was submitted to the court, saving to either party all objections to evidence of which he might have availed himself on a trial before a jury, to determine : — 1st, Whether upon the evidence, it would be competent for a jury to find, that the clause in the submission, respecting the making of the award in duplicate, and furnishing each party with one part thereof, was complied with by the arbitrators; 2d, Whether the award was, on its face, a valid award; 3d, Whether the title to sue was in the plaintiff or in his assignee in bankruptcy.
    If the court should be of opinion, that these points were, upon the( facts shown, no bar to a recovery, judgment was to be rendered for the plaintiff, for the amount awarded, and such interest as might be adjudged to be due; otherwise the plaintiff was to become nonsuit.
    
      S. Bartlett and W. Solder, for the plaintiff.
    
      B. B. Owrtis, for the defendant.
   Metcalf, J.

This is an action on an award purporting to be made in pursuance of a submission to three arbitrators of “ all matters and things whatsoever, arising out of the will and estate of Peleg Tallman,” (the father of the parties,) “ and the just and equitable division thereof, as also any promise, agreement, or contract alleged to have been made by” the defendant to the plaintiff, “ touching the settlement of said estate, and all demands between the parties relating thereto.” There were also these provisions in the submission; namely, that the arbitrators should have power to award as to costs; that their award should be drawn out by them in writing, and a copy thereof furnished to each of the parties, in a reasonable time after the arbitrators should have made up the same ; and that the arbitrators should fix the terms and times of payment, and the forms of all releases.

The arbitrators, after reciting that they had met and fully heard the parties to the agreement of submission, their several proofs, evidence, and arguments, and maturely considered the same, “ award and determine that said Henry Tallman pay to said Scott J. Tallman the sum of $9990, in manner following, viz., $490 in sixty days; $4750 in one year; and $4750 in two years, with interest on each of said sums from the date ” of the award, “ and pay to said Scott J. Tallman the costs of reference, taxed at $236.43.” And the arbitrators further awarded, that upon the payment of all the aforesaid sums by said Henry, as aforesaid, the said Scott J. Tallman, by his certain deed in writing, under his hand and seal, acquit, exonerate, and forever discharge the said Henry Tallman and the estate of the late Peleg Tallman, in said agreement mentioned, of and from all and every demand whatever.”

The case is submitted to the court, upon certain depositions and documents, or such parts thereof as are competent evidence, for the decision of three questions : 1st, Whether, upon the evidence, it is competent for a jury to find that the clause in the submission respecting the making of the award in duplicate, and furnishing each party with one part thereof, was complied with by the arbitrators. 2d, Whether the award is, on its face, a valid award. 3d, Whether the title to sue is in the plaintiff, or in his assignee in bankruptcy. In considering these questions, we prefer to reverse their order.

As to the third question, we are of opinion that the defendant entered into the submission in his individual capacity and not in his representative capacity, as executor of his father’s will. This we infer from the terms of the submission, and from the facts agreed in the case. It also appears from the probate record concerning the will, that the defendant was joint executor with his mother; that a letter testamentary was granted to them jointly; and that they both gave bond to the judge of probate for the due execution of their trust as executors. It also appears, in one of the depositions filed in the case, that the mother was alive when the submission was made. And if it was intended to be made by the defendant in his capacity as executor, so as to affect the administration of the testator’s estate, we suppose it would have been made by both executors. Besides ; the defendant, by submitting a claim against the testator’s estate, as estate in the course of administration, would have rendered himself liable to perform the award, although the sum awarded against him might exceed the assets in his hands.

The claim of the plaintiff was manifestly a personal claim on the defendant; a claim which he had no legal power to enforce ; a claim which did not, and could not, pass to his assignee in bankruptcy. And so the arbitrators treated it, as the depositions in the case show. We therefore are of opinion that the title to sue on the award is in the plaintiff, and in him alone.

The next question is, whether the award is, on its face, valid. Several objections have been made to its validity.

1st. That the arbitrators awarded a round sum to be paid by the defendant, without distinguishing between the sum to be paid by him in his representative capacity, and the sum to be paid by him personally. This objection is necessarily overruled by the decision already made, that the submission was entered into by the defendant solely in his individual capacity.

2d. It is objected, that the arbitrators did not, in terms, say that they had determined all the matters submitted to them. But it is a settled doctrine, that courts will make no intendment for the purpose of overturning an award. And when all demands or all differences between the parties are submitted to arbitrators, courts will intend that the arbitrators have decided all matters submitted to them, unless the contrary appears ; and it is incumbent on the party, who seeks to impeach an award on the ground that all matters submitted are not decided, to show that there was some other matter in difference, which the arbitrators have not decided. Even though the arbitrators make an award on one matter only, when all matters in difference are submitted, the court will not intend that any thing further was in difference. Ingram v. Milnes, 8 East, 449; Karthaus v. Ferrer, 1 Pet. 222; Watson on Arb. 117, 118; 2 Greenl. on Ev. § 74. But there is, in the present case, more than the legal presumption that the arbitrators decided upon all matters submitted to them. In Mr. Fessenden’s deposition, he states that demands made by the defendant on the plaintiff were presented to the arbitrators, and that “ there was a full hearing on all questions submitted, to which the parties wished the arbitrators to direct their attention.” And two of the arbitrators state, in their depositions, that they heard and investigated all claims and demands between the parties.

3d. It is objected that the award does not pursue the submission, as to the matter of the releases. The provision was, that they should “ fix the terms and times of payment, and the forms of all releases.” We do not understand that the arbitrators, by force of this provision, were bound to order releases to be made, at all events, any more than they were bound to order one of the parties, at all events, to pay money to the other. The arbitrators were first to decide whether either party was entitled to recover any sum of the other, and whether either party or both should give a release. After deciding these points, and determining that one should pay a certain sum to the other, and that one or each should execute a release, the arbitrators were to fix the terms and times of payment, and the forms of all releases which they should order to be made. On the award which was made, there was no necessity that the plaintiff should give any release to the defendant. By payment of the sum awarded, at the times prescribed, the defendant would have been discharged, by operation of law, from all claims of the plaintiff upon him. And by virtue of the award, the plaintiff is legally discharged from all the defendant’s claims on him. But the arbitrators saw fit to direct that the plaintiff, on receiving payment from the defendant, pursuant to the award, should by deed forever discharge the defendant and the estate of their father from all and every demand whatever. And we are of opinion that the arbitrators, in so doing, have pursued the submission, and sufficiently prescribed the form of the release which they directed to be given.

4th. The other objection to the award is, that it is bad as to the costs; that the arbitrators have not stated how much of the costs, which they taxed, were for their own services, and how much for other items. We see no force in this objection. The arbitrators were authorized, by the terms of the submission, to award as to costs.” They have made their award in the usual form ; and we know no reason why they should state the items of cost on the face of it. The counsel for the defendant cited Robinson v. Henderson, 6 M. & S. 276, on this point. In that case, the arbitrators awarded that the sum of £230 8s. was due from the defendant to the plaintiff, and-that out of said sum the defendant should pay to the arbitrators £93 12s. for their services and for the charges of the plaintiff’s solicitors; leaving the sum of £136 15s. a balance, which t.hej awarded to be paid to the plaintiff. The award was set aside, because the court was of opinion that there would be danger in permitting arbitrators to award a definite sum, of which a part, including an indefinite allowance to themselves, was ordered to be paid to the arbitrators.” In the case at bar, the arbitrators did not award that the present defendant should pay any sum to them, as costs, but that he should pay a certain sum, as costs, to the present plaintiff. The two cases, therefore, have no resemblance, and the reason on which the one was decided does not exist in the other.

As to the remaining question, namely, whether it would be competent for a jury to find, upon the evidence, that the arbitrators made their award in duplicate, and furnished each party with one part thereof, we cannot entertain any doubt. We do not decide the question, whether the deposition of Mr. Randall, the attorney to whom the defendant showed the award, for the purpose of taking his opinion as to its validity, is admissible. We put the decision, on this point, upon other evidence, which, though slight, is clearly competent, and would warrant a jury in finding a compliance, by the arbitrators, with the provisions of the submission. The intrinsic probability that they did so is exceedingly strong, and there is no evidence which has any tendency to show the contrary.

The defendant is to be defaulted, and the plaintiff is to have judgment for the amount awarded by the arbitrators, including the costs of reference, and interest thereon from the date of the award, which was September 29th, 1845.  