#### *Smith and Others v. Smith, &c.*

February, 1826.

Chancery Practice — Specific Execution of Award — Bill —Sufficiency of. — A bill in Chancery, which makes out a case for a specific execution of an award, but does not pray for general or special relief, is sufficient, if no objection be taken by the defendant, and he answers on the merits of the complaint, and submits himself to the decree of the Court. Quatre, would this objection be sustained on a demurrer to the bill?

Equity Jurisdiction — Specific Execution of an Award.— Equity has jurisdiction to decree specific execution of an award, where the remedy at law is inadequate.

Arbitration and Award— Award — On Whom Binding.— Where some only of several distributees submit their interest to arbitration, the award will be binding on the parties to the submission, as far as their interests are concerned.

Same — Same—Mistake of Law,† — When parties submit a question of law alone to arbitration, the award is binding, though contrary to law.

Same — Same—How Construed. — Awards are to be construed liberally; and, therefore, the terms "heirs at law,” in an award respecting personal estate, may be construed tornean “all a testator’s children living, and the child or children of any of them who died in his life time.”

Partition — Tenants in Common. — Tenants in common of personal estate cannot have partition at common law; and, therefore, a Court of Equity is the proper tribunal to decree a partition of it.

Bills — When Plaintiff Allowed to Amend.‡In what cases a plaintiff should be allowed to amend his bill. •

This suit was originally brought in the County Court of Albemarle, and afterwards removed by Certiorari, to the Staunton Chancery Court.

John Smith, William Grayson, William Wood, and Claudius Buster, for himself *49and his son, John Buster, filed their bill setting forth the following case: that a controversy having arisen between the complainants and Thomas Smith and Susanna Smith, respecting the right of property in three negroes, to wit: Robin, in the possession of the said Thomas Smith, and Milly and Maria in the possession oí the said Susanna Smith, the parties mutually submitted the said controversy to the final determination of five persons, by a writing under their hands and seals, in the penalty of iplOOO: that the said arbitrators decided, that the three slaves above-mentioned should be equally divided among the heirs of Thomas Smith, deceased, by virtue of which the complainants became entitled to their proportion of the said slaves; that the complainants fully '"'performed the award on their parts, but the said Thomas and Susanna Smith still retain the said slaves, pretending that the award was illegal.

The bill proceeds to state, that inasmuch as the complainants cannot have an adequate remedy in a Court of lyaw, there being no form of action in which a specific performance can be decreed, &c. they call upon the defendants to answer whether the submission was not entered into as stated in the bill; whether the award was not made as alleged, &c. But there is no prayer for relief, either general or special.

The answer of -Susanna Smith states, that her father, Thomas Smith, by his last will, bequeathed to her a negro woman named Winifred, whom he was to receive at the death of the mother of the defendant; that the defendant was then a married woman, being married to a certain Thomas Smith, now deceased; that not long after the death of her said father, her mother gave up the said negro woman, together with her child, which the defendant always understood she was delivered of, after the making of the said will, and before the death of her father; which said woman, and her child named Milly, now in dispute, have been held by the defendant upwards of sixteen years; that the child of the said Milly, named Maria, also in dispute, is now about four years old; that the defendant’s brother, Thomas Smith, who was residuary legatee of his father, assigned over to the defendant all interest that he might have in the said Milly and Maria. The defendant denies that she ever insisted that the matter should be left to arbitration; and she was only induced to come into that measure by the threats of the complainants, that she would be ruined at law; that when her counsel attempted to state the law to the arbitrators, he was interrupted by one of the arbitrators, who told him he made false statements, and he immediately sat down ; that such an award ought not to have been made, because the whole of the legatees of the said Thomas Smith were not present, and did not know *any thing of the business, and that Claudius Buster had no legal power to enter into any contract in behalf of his son John, &c.

Thomas Smith answered, that immediately after the death of his mother, the said John Smith made a demand of the slave Robin, as heir at law, in order to sell him and divide the money among the different legatees, which demand, the defendant refused, believing the slave to be his own properly, as there was a clause in his father’s will, that his estate should not be appraised, and he being the residuary legatee: that he submitted to the arbitration, in consequence of the threats of the complainant John. He charges that the award is not binding, because the submission was improperly made, the whole of the legatees not being present and consenting thereto; and it also embraces parties, who are entirely out of the submission.

The bond of submission is signed by Thomas Smith, Susanna Smith, John Smith, William Grayson, William Wood, and Claudius Buster, for himself and son.

The will of John Smith was proved in the year 1783.

The arbitrators awarded, that the three negroes in dispute should be equally divided among the “heirs of Thomas Smith deceased.”

The Chancellor decreed that the bill of the plaintiffs be dismissed, without prejudice to any remedy they may have at law; and the plaintiff's appealed to .this Court.

Wickham, for the appellants, contended that the award was right in principle. The bequest of the woman Winifred to Susanna Smith, could riot convey her increase born after the date of the will, and before the death of the testator. No case justifies such a construction. The law, at the time of the death of the testator, gave the slaves of an intestate to his eldest son, and he was accountable to the other distributees for their proportionable value. The testator died intestate as to the slaves in question.

'*It is said, however, that Chancery has no jurisdiction in this case. But it is an established principle, that Chancery has jurisdiction, wherever a specific execution is demanded. Smallwood v. Mercer & Hansborough, 1 Wash. 290. As to the award being void, because it extends to persons not parties to it, the case of Richards v. Brockenbrough, 1 Rand. 449, proves that such an objection will not vitiate an award, but that it will stand good as to the real parties, and all the rest be rejected as surplusage.

Johnson, for the appellees.

The bill is imperfect, as it does not pray for any relief. But there are serious objections to the award itself.

1. There are not proper parties. All the distributees interested ought to be before the Court, that the whole case might be decided.

2. The award is void, because it does not follow the submission. That only required the arbitra tors to decide the question between the parties to the submission; but they have gone on to settle the rights of *50the “heirs of Thomas Smith,” many of whom are no parties to the bond.

3. It is void for uncertainty. The award decides that the estate shall be divided among the heirs of the testator, when there was but one heir, under the law as it then was. The law of that day did not apply to such a case as this. It only applied to a case of intestacy ; here, there was a partial testacy. Grand children are not included in the provisions of that law. The award does not say whether there shall be a distribution per capita or per stirpes.

As to jurisdiction, a Court of Equity ought not to have it, because there was a most appropriate remedy at law. A jury would give damages in a suit on the arbitration bond, to the amount of the aliquot part withheld from the party aggrieved.

It was competent for some of the parties to refer their own interests to arbitration ; but if they meant to refer the *whole subject, all parties must unite in the submission. Britton v. Williams, 6 Munf. 453.

Wickham, in reply, referred to Wood v. Griffith, 1 Swanst. Rep. 54, to prove that equity may decree the specific execution of an award; and he contended that where parties refer a doubtful point of law to arbitration, a Court will never set aside the award, though it may be contrary to law. On the degree of uncertainty which will be tolerated in an award, he referred to Macon v. Crump, 1 Call, 500. By “heirs,” the arbitrators meant, persons entitled to distribution. Words must be construed secundum subjectam materiam. The bill may be amended, even after a hearing), by making new parties.

*

For the seq uel of the principal case, see Merritt v. Smith, 6 Leigh 486.

†

Arbitration and Award — Award—Mistake of Law.— Where a matter is left to arbitration, upon a mere naked question of law, the award thereupon cannot be disturbed for a mistake of the law. Mayor of Richmond v. Judah, 5 Leigh 320, citing the principal case as authority. An award cannot be invalid upon the ground that the arbitrator erred in his judgment either upon the law or the fact. Pollock v. Sutherlin, 25 Gratt. 92, citing principal case as its authority.

The court will not interfere with an award merely because it would have given a different decision in the particular case. City of Portsmouth v. Norfolk County, 31 Gratt. 734; Mathews v. Miller, 25 W. Va. 828, both citing principal case as authority.

See further, monographic *note*on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.

‡

Bilis — When They nay Be Amended. — As a general rule, the court will, at any time before the hearing, grant leave to amend where the bill is defective as *49to parties, or in the mistake or omission of any fact or circumstance connected with the substance oí the bill, or not repugnant thereto. This amendment may be made by common order, beiore answer or demurrer, and afterwards by leave of the *court.*Holland v. *Trotter. 22*Gratt. 139, citing principal case.

See further, monographic *note*on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.

February 11.

The PRESIDENT

delivered opinion of the Court.*

The first objection in order, toa decree in behalf of the appellants, is, to the jurisdiction of the Court. The bill makes out a case for a specific execution of an award, but prays for neither special nor general relief; as to which, no objection is taken by the appellees. They answer generally the allegations of the bill, and submit themselves to the decree of the Court, on the merits of the complaint. Whether, upon a demurrer to the bill, it would have been sustained, it is not necessary to decide. A submission to an award, is an agreement between the parties to it, to abide by and perform it in every particular; and the mutual submission of the matter in controversy, is a valid consideration for such agreement. If either party refuses to comply with the terms of it, and there is adequate remedy at iaw, a Court of Equity will not interfere; but as in the case of other agreements, if that remedy be inadequate, neither upon reason nor authority, does there seem to be any objection *to a specific execution in a Court oE Equity. Though there was no award in the case of Smallwood v. Hansborough, 1 Wash. 290, the Court went on this principle; and though in some of the English Cases, it was intimated, that where there was no acquiescence in the award by the parties to the submission, nor agreement by them afterwards to have it executed, a bill for specific execution would not lie, (see the cases of Thompson v. Noel & al. 1 Atk. 60, and Hall v. Hardy, 3. P. Wms. 187 ;) yet, in the case of Wood v. Griffith, Swanston’s Rep. 54, that distinction is overruled.

The next objection is, to the validity of the award; first, because it. comprehends the interests of persons not parties to the submission; and, secondly, because the arbitrators have mistaken the law of the case submitted to them. I pass over the objection to the conduct of the arbitrators, as regards the counsel of one of the defendants; because, upon the evidence, there is nothing in it affecting the merits of the award. Nor does it appear that the defendant, Susanna Smith, was misled or deceived, when she signed the submission. She may have signed it with reluctance, but with a full knowledge of its object.

As to the validity of the award, the parties to the submission claimed their equal share in the property in controversy, with other distributees of Thomas Smith, the testator. They were competent to submit their claim to arbitration. Those who signed the submission, were alone to be bound by it; and in deciding on their interests, the rights of others were not to be affected. If the decision of.the arbitrators was against them, they were bound by it; if against the defendants, who claimed the property, they were also bound.

That an award as to the title to personal estate, settles the rights of the parties controverting it, the cases abundantly shew. 2 Levinz, 104. 2 Esp. Rep. 25, and the cases cited in 2 Vin. Abr. “L.” pl. 40, note 4.

*As to the objection that the arbitrators mistook the law of the case submitted, the question submitted was purely a question of law. Susanna Smith, one of the defendants, claimed the property under the will of her father Thomas Smith, and under a deed from Thomas Smith the residuary legatee. The plaintiffs claimed it as undisposed of by the will, and as distributees under the law. The nature of the controversy is stated by both of the defendants in their answers. John Smith had claimed it as heir at law of his father Thomas Smith, admitting that if he was entitled to - it, he was accountable to the other children for their portions of its value. Thomas Smith, one of the chitdren, claimed it as residuary legatee; and whether the property passed by the will or not, was the question submitted to the arbitrators. When parties submit' to arbitration their rights involved in law and fact, they are understood to submit the facts to the arbitrators, to be decided on according to law; and if it appears upon the face of the award, that they grossly mistook the law, the award will be set aside. But, where it appears, as in the case before us, that the parties intended to submit the question of law alone, the decision of the arbitrators is binding, though contrary to law. If not, it would not be competent to parties to make a valid submission of a point of law; for, however the arbitrators might decide, no litigation would be *51avoided. The proper Court would still have to consider and decide the point of law, as if no award had been made. See 13 East. 357, Chace & al. v. Westmore. Young v. Walton, 9 Ves. 364, and Medcalfe v. Ives, 1 Atk. 64. The arbitrators having, in effect, decided that the property did not pass by the will, it followed of course, in point of law, that it belonged (as the law was, at the death of the testator,) to the eldest son, as heir at law, charged with the payment oí due proportions of its value, to the other children. This liability of the heir at law, was, in equity, equivalent to an equal interest in *the*property'; and it must be understood, that the arbitrators meant by “heirs at law” of *Thomas Smith, all his children living, and the child or children of any of them who died in the life-time of Thomas Smith, and the representatives of those who have died since his death; such children representing their parents per stirpes. Awards are to be construed liberally, to give them effect; and this seems to be a fair construction of the award in this case. It accords with the purpose of the parties submitting to it; nor is it necessary that the arbitrátors point out the particular mode in which it is to be carried into effect. Lingood v. Eade, 2 Atk. 501, 505. That in this aspect of the case, it is one proper for specific execution in a Court of Equity, seems very clear. The parties to the submission, together with the other representatives of Thomas Smith, claimed an interest in common, in the property in question. Supposing it to be a legal, and not an equitable interest, no partition between tenants in common of personal estate, could be made at law. A partition in kind could not be made there; each party having an equal right to the possession of the whole. Whether the title to the property was legal or equitable, therefore, in this case, a Court of Equity was the proper tribunal for a partition of it.

We are of opinion, therefore, that the Court of Chancery erred in dismissing the bill, and not affording to the plaintiffs an opportunity to amend it, to ascertain the extent of their rights, by shewing how many of the representatives of Thomas Smith, would have been entitled, under the award, had they signed the submission, and thereby establish the extent of their own interest in the subject, under the award.

The decree is therefore reversed, and the following decree is to be entered:

The Court is of opinion, that the award in the proceedings mentioned, is valid and sufficiently certain, and that a Court of Equity hath jurisdiction to carry it into effect, by decreeing a portion of the slaves in question, in kind, *according to the rights of the parties ascertained by the award, and the other matters in the record, if that can be done; and if not, by directing a sale thereof, and the proceeds to be divided according to the rights of the parties: that the effect of the said award, was to determine that all the children of Thomas Smith, alive at his death, and those now representing such of thern as are dead, together with the child or children of such of his children as died in his life-time, were entitled to an equal proportion of the slaves mentioned in the award, such children taking the part which their deceased parent would have taken, if alive: that as regards those who did not sign the submission, neither they nor their representatives can claim any thing under it; and the portions which they would have been entitled to, had they been parties to the submission, remain to Thomas Smith and Susanna Smith, claiming under him, as if the award had not *been made,*since, by the will of Thomas Smith deceased, the said Thomas Smith was, before the award, entitled to the slaves in question as residuary legatee, and that the said decree, in dismissing the bill, is erroneous, &c.

*

Judge Coalter absent.