Jones v. Blalock , 31 Ala. 180 ( 1857 )

PICE, 0. J.

— It must be considered as settled in this State, that an administrator has the power to compromise actions pending in his favor for the dioses in action belonging to the estate; the bona fides of his conduct in making such compromise being open to inquiry by the parties in interest. His power to compromise such action being established, his power to submit it to arbitration is undeniable. — Woolfork v. Sullivan, 23 Ala. R. 548; Jones v. Deyer, 16 Ala. P. 221.

The submission to arbitration and the award, as the same are set forth in the original bill in the present case, are valid as between the parties thereto. Their meaning is -Jlie matter of difficulty. The two writings, alleged to have been signed by the arbitrators at the same time, and in relation to the same subject-matter, and to be parts of an entire transaction, must, in determining the equity of the bill, be considered and construed as constituting the award. The written submission, with its subsequent verbal modification, must be looked to in construing the award; and the presumption must be indulged, as far as it can be consistently with the award, that the arbitrators, in making it, intended, not to annul or violate any part of the submission, but to execute every part of it.

The award, as we understand it, provides distinctly for two things; 1st, that the administrator should have a judgment in the action of detinue, against the complainant, for the slaves sued for therein, (each of them being valued separately,) and for $1056 00 as damages for their detention, (or hire,) and three-fourths of the costs of that action; 2d, that the said slaves, at the valuation put upon them in that action, and the $1056 00 of damages, should be allotted into four distributive shares; that is, share No. 1 to complainant, share No. 2 to John C. Blalock, (who is a distributee, as well as the administrator,) share No. 3 to Thomas J. Blalock, and share No. 4 to Theophilus Jones.

But now comes the question, at what time, or upon what contingency, under the award, were the slaves and damages to lose entirely their character as assets of the estate of John C. Blalock’s intestate, and to become the absolute property of the four persons respectively to whom the distributive shares were allotted as aforesaid ? As to that question, the award itself is silent. But we think the answer to it is found in that part of the submission which is unaffected by the verbal modification, and which expressly declares, “ that the distributive share of each shall he liable to the demands of said administrator ratably for the expenses of said administration; and that the records, inventories, decrees, and settlements of the courts, shall be in accordance with, and pursuant to said award.” It strikes us, that the very object the arbitrators had in view, in providing in their award that the administrator should have a judgment in the detinue suit for the slaves and damages, was to fix upon them the character of assets of the estate, and to continue that character, as to each distributive share,, until its ratable portion of the expenses of the administration of the estate was paid; and in that way to arm the administrator wiL '.he power of effectually enforcing by his judgment his dem md upon the claimant of each share, of its ratable portio. of said expenses. It certainly could not have been the utention of the arbitrators, to leave the administrator 1 able to pay out of his own means the expenses of the administration of the estate, as those expenses should afterwards be developed or incurred, and to cut him off from any resort to the aforementioned distributive shares, except by a mere personal demand upon the distributees, to be followed up, if refused, by a new suit. Ve take it, that the arbitrators designed to put an end to litigation, not to increase it; to give fair protection to the administrator, not to put him at the mercy of the distributees. And our conclusion is, that under the submission and award, the distributive share of the slaves allotted to the complainant is not exempt from liability to the judgment and from its power, until she has made either an actual payment, or an actual tender, of all the sums of money which the award requires her to pay, including her ratable portion (that is, one-fourth) of the expenses of the administration. If such payment or tender has been made, then the judgment cannot be properly enforced further as against her or her distributive share, and her distributive share becomes her absolute property, as against the parties to this suit.

3. If such payment was made by her before the judgment was rendered, and she, without fault on her part, was prevented from availing herself of it in that suit, by the fraudulent conduct of the administrator in withholding from the circuit court that part of the award which allots the slaves and damages mentioned in the judgment into the four distributive shares, contrary to his agreement with the other parties; then, as she cannot, upon such a state of facts, by supersedeas or otherwise, obtain an entry of satisfaction or discharge pro tanto in a court of law, (Burt v. Hughes, 11 Ala. R. 571,) she may go into a court of chancery, to establish the part of the award so withheld by the administrator, and to enjoin any further proceeding under the judgment, against her or her distributive share. And so she may go into chancery for a like purpose, if, since the judgment, she has paid all of the sums of money required of her by the award, except her ratable portion of the expenses of the administration, and she is ready to pay that portion as soon as it can be ascertained, and is rendered unable to pay it by reason of the tact that these expenses are not yet fully developed, or other like reason, and the administrator is attempting to enforce against her the judgment for expenses of the administration not fully developed or not paid by him. And, in short, the bill filed by her in the present case contains equity, because, upon the facts stated in it, she cannot, by any proceeding at law, obtain all that it was the object of the award to give her, and she is, therefore, entitled to resort to a court of equity for a specific performance of the award, and for the protection of that court until the award can be specifically performed. — Kirksey v. Fike, 27 Ala. R. 383; McNeill v. Magee, 5 Mason’s Rep. 244; “White & Tudor’s Leading Cases in Equity, vol. 2, Pt. II, page 109.

Whether the facts stated in her bill be true or not, we do not now undertake to determine. As the chancellor sustained the demurrer to the bill for want of equity, we confine ourselves to the question whether the bill contains equity. In considering that question, we treat the allegations of the bill as true; and if they are true, the bill is not wanting in equity. How the case may turn out on a trial on the pleadings and proofs, is not a matter for our consideration at this time.

The chancellor erred in sustaining the demurrer, and dismissing the bill for want of equity. His decree is, therefore, reversed, and the cause remanded. The costs of this court must be paid by John C. Blalock, the administrator.