Rechtsprechung / Schiedsgerichte in Erbsachen / USA
Ali v. Smith, 554 S.W.3d 755 (Tex.App. 2018)
"In this appeal, we assume that courts must enforce a testator's intent, as reflected in the will, that "all disputes" between executors and their successors be resolved through binding arbitration. But, because the Texas Arbitration Act requires the party seeking to compel arbitration to show the existence of an "agreement" to arbitrate, courts may not compel arbitration under the Act unless the will is "supported by the mutual assent required to render the [will] an agreement and the arbitration provision valid." See Rachal v. Reitz, 403 S.W.3d 840, 845 (Tex. 2013) (enforcing arbitration provision in a trust based on theory of direct-benefits estoppel)" (757).
Daniels v. Sunrise Senior Living Inc., 212 Cal.App.4th 674 = 151 Cal.Rptr.3d 273 (Cal.Ct.App. 2013)
"Apparently, one of the two arbitration agreements under consideration in Fitzhugh was an agreement to arbitrate medical malpractice claims against the convalescent care facility pursuant to section 1295. (Fitzhugh, supra, 150 Cal.App.4th at p. 472, 58 Cal.Rptr.3d 585.) But Fitzhugh was decided before Ruiz, and the Fitzhugh court was not called upon to consider the question addressed in Ruiz - whether an agreement to arbitrate medical malpractice claims against a health care provider pursuant to section 1295 is binding on nonsignatory heirs asserting wrongful death claims based on the arbitrable malpractice claims. Nonetheless, in our view Fitzhugh remains good law as applied to arbitration agreements not governed by or entered into pursuant to section 1295, including the arbitration clause in Barcenas's residency agreement with Sunrise Senior Living, Inc. C. The Trial Court Did Not Abuse Its Discretion in Refusing to Compel Arbitration Based on the Possibility of Conflicting Rulings on Common Questions of Law and Fact in the Event the Survivor Claims, But Not the Wrongful Death Claim, Were Ordered to Arbitration (§ 1281.2(c))" (686).
Laizure v. Avante at Leesburg Inc., 109 So.3d 752 (Fla. 2013)
"Laizure opposed arbitration, contending that the arbitration agreement was procedurally and substantively unconscionable and that the wrongful death claims were not arbitrable. The trial court found that the arbitration agreement was valid, that the claims brought by Laizure were arbitrable issues, and that the beneficiaries of the estate were intended third-party beneficiaries of the agreement.
The Fifth District began its discussion by reviewing this Court's decision in Seifert v. U.S. Home Corp., 750 So.2d 633, 635 (Fla.1999), in which the Court held that a wrongful death claim was not arbitrable where the arbitration agreement contained in a homebuyer's purchase and sale contract did not require the arbitration of personal injury tort claims. Laizure, 44 So.3d at 1257–58. The Fifth District recognized, however, that this Court “did not hold that wrongful death claims are not arbitrable. Rather, it concluded that an arbitration provision in a homebuyer's contract, which did not refer to tort claims for personal injuries, did not require arbitration of such disputes.” Id. at 1258" (756).
Application of Kalikow, 2010 N.Y. Slip Op. 33642 (N.Y.Misc. 2010)
"Pursuant to the arbitration clause in the partnership agreement, the petitioners demanded arbitration to determine the effect of the transfer restrictions on valuation and the validity of the bequest of the decedent's interest in Hewlett Associates to the Sunshine Foundation. The arbitrator, Dennis Konner, found that the "the attempted transfer of partnership interests in Hewlett Associates by the Will of Pearl Kalikow without the consent of Edward Kalikow and Laurie Platt is barred by the Certificate." Thereafter, this court confirmed the arbitrator's decision by decision dated September 26, 2008 (Dec. No. 429). By decision dated March 31, 2009 (Dec. No. 851), this court determined that Edward and Laurie's actions in pursuing arbitration did, in fact, trigger the in terrorem clause in the decedent's will" (2-3).
In re Nestorovski Estate, 283 Mich.App. 177 (Mich.Ct.App. 2009)
"In summary, we hold that to the limited extent that In re Meredith Estate barred arbitration of probate disputes, that holding lacks continued viability because it has been superseded by more recent legislative developments and intervening changes in the court rules. Further, the central holding of In re Meredith Estate lacks applicability here, because all interested parties had notice of the contemplated arbitration, agreed that the arbitration would supply a binding resolution regarding Vlado's testamentary capacity, and actively participated in the arbitration process. Therefore, In re Meredith Estate does not preclude the instant parties from conducting binding common-law arbitration of probate disputes, including the question of testamentary capacity" (196).
Covenant Health Rehab of Picayune v. Brown, 949 So.2d 732 (Miss. 2007)
Section D4 enforces the contract entered into by the decedent against her heirs beyond her death. The United States Supreme Court has held that "[i]t is a presumption of law that the parties to a contract bind not only themselves but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime, and, with the exception of contracts in which personal skill or taste is required, on all contracts broken after his death." United States ex rel. Wilhelm v. Chain, 300 U.S. 31, 35, 57 S.Ct. 394, 396, 81 L.Ed. 487, 490 (1937). This Court has held that arbitration agreements, specifically, are not invalidated by the death of the signatory and may be binding on successors and heirs if provided in the agreement. Cleveland v. Mann, 942 So.2d 108, 118 (Miss. 2006). Therefore, all of the provisions in D4 that remain upon this Court's ruling are enforceable by and against both the decedent's administrators and the nursing home. We find that the trial court clearly erred in striking this provision.
Section D4 reads verbatim in bold print: Notwithstanding any other provision set forth herein, Sections C5, E5, E6, E7, E8, E9, E12, E13, E14, E15 and F as set forth in this Agreement shall survive the termination for any reason of this Agreement and shall survive and shall not be revoked by the death of any Party hereto including the Resident. Said provisions shall be binding on the estate of the Resident in the event the Resident is deceased” (738).
In Matter of Kalikow, 2006 N.Y. Slip Op. 51942 (N.Y.Surr.Ct. 2006)
"When faced with a broad arbitration clause a court merely determines whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract. (Matter of Board of Educ. Of Watertown City School Dist. [ [Watertown Edu. Ass'n]] 93 NY2d 132). Here, the dispute concerns the construction and enforcement of the partnership agreement ( see Rappaport v. 55 Perry Co., 50 AD2d 54) and therefore meets this test.
arbitration arbitration arbitration.
Accordingly, the court finds that the dispute between the parties is subject to arbitration, pursuant to the terms of the agreement" (2).
Matter of Jacobovitz, 58 Misc.2d 330 = 295 N.Y.S.2d 527 (N.Y.Surr.Ct. 1968)
The distribution of the decedent's estate is not an arbitrable controversy
"The issue presented, as the court views it, is whether the validity of a will and the disposition of an estate can be the subject of an arbitration proceeding under the laws of this State ... It can thus be seen that even where all of the proper parties are before the court, the Legislature has imposed such requirements as to who may make a will and its proper execution that, even without objections to probate, the court has the duty to exercise its judicial conscience before admitting the instrument to probate. That the distribution of a decedent's estate would not constitute an arbitrable controversy was held in Matter of Swislocki (Spiewak), 273 App. Div. 768, mot. for lv. to app. den. 273 App. Div. 808), and, where the intestate share of an infant and the rights of creditors in an estate of the deceased were involved, it could not be the 334 subject of arbitration ( Matter of Kabinoff, 19 Misc.2d 15)" (333-334).
Matter of Kabinoff, 19 Misc. 2d 15 = 163 N.Y.S.2d 798 (N.Y.Sup.Ct. 1957)
Intestate shares of an infant and rights of creditors may not be subject to arbitration
Agreement of the heirs: "The parties hereto, their attorneys and accountants shall negotiate and attempt to reach by mutual consent a figure which shall fairly represent the amount due Rose Kabinoff as referred to in paragraph second hereof. In the event that agreement cannot be had within thirty days from the date of this contract any party may refer the unresolved matter for determination by the American Arbitration Association of the City of New York, whose decision shall be absolute, final and binding upon all of the parties hereto" (16).
Case: "From a study of the agreement it becomes clear that the surviving partners intended to prevent their stepmother as administratrix of their father's estate from acquiring the entire interest of their father in the partnership, but intended to carve out from their father's interest their own interest and permit the administratrix to receive only 1 the interest of herself, her son by the decedent and a sum to be fixed as a result of the arbitration which would defer the costs of the administration proceeding. Such computation necessarily involves the intestate share of an infant and the rights of creditors in the estate of the deceased and may not be the subject of arbitration ( Matter of Swislocki [Spiewak], 273 App. Div. 768).
In the demand for arbitration the surviving partners seek to avoid this construction of the arbitration agreement by providing that the arbitration shall determine the amount due Rose Kabinoff as administratrix of the estate of Isidore Kabinoff, deceased, etc., said amount constituting the value of the partnership interest of Isidore Kabinoff, deceased, in and to the net worth of the New Way Transport Company. This is not in conformity with the original arbitration agreement which, if it had been expressed in these terms, would have been arbitrable. The desire of the surviving partners to prevent their share of the assets of their father's estates from coming into the hands of the lawfully appointed administratrix renders the agreement insofar as the arbitration provisions are concerned invalid" (16-17).
Matter of Dobbins, 206 Misc. 64 (N.Y.Surr.Ct. 1953)
Facts: "I select John Dobbins as executor and his decision or interpretation on any questions of my will must be final" (65).
Case: "The discretion granted to the executor, so far as valid, relates to dealings with the testator's sister, Florence, and with the specific legatees, and it is held that the executor has no authority to divert the residue from the purpose for which the testator bequeathed it, nor to pay it to anyone but the Society for the Propagation of the Faith" (67).
Matter of Swislocki, 273 A.D. 768 = 75 N.Y.S.2d 147 (N.Y.App.Div. 1947)
"The power of attorney to plaintiff and the submission to arbitration do not make clear the subject matter of the arbitration, but if, as is otherwise indicated, the subject matter is the distribution of a decedent’s estate, it would not constitute an arbitrable controversy. That does not mean that plaintiff’s wife might not have a good and collectible claim through estate administration, or otherwise against defendant for funds originating in an estate but presently in a status beyond any stage of estate administration, which claim might be arbitrable, but on the present submission that does not appear to be the case. Order appealed from unanimously affirmed, with $20 costs and disbursements" (768).
In re O’Brien's Estate, 13 Wn.2d 581 = 13 Wash.2d 581 = 126 P.2d 47 (Sup.Ct. 1942)
«The executors named in a will and an additional executor named in a codicil, it has been held, cannot submit to arbitration the question whether the testator had sufficient mental capacity to execute the codicil, as the codicil may be declared invalid only in a will contest action waged by a person or persons having some pecuniary interest in the property of the estate. In re Meredith's Estate (1936), 275 Mich. 278, 266 N.W. 351, 104 A.L.R. 348» (585).
In re Estate of Reynolds, 221 N.C. 449 = 20 S.E.2d 348 (N.C. 1942)
In Lassiter v. Upchurch, 107 N.C. 411, 12 S.E. 63, the Court used this language: "However that may be in ordinary submission by parties to arbitration, we think that section 1426 of The Code (now C. S., 99) was intended to create an expeditious and inexpensive mode by which controversies between executors, administrators, or collectors and claimants against the estates of testators and intestates may be settled and determined, and, fairly interpreted, the award of the referees, unless impeached for fraud and collusion, should have the effect, at least, to determine and put an end to the controversy, if not of a judgment in an action between the parties. Its effect, if unimpeached for fraud and collusion, is to determine and settle the validity or invalidity of the debt in a mode prescribed and authorized by law, and if not intended to put an end to the controversy involved, the statute is useless, but if it has this effect, then the award, when filed, whether for or against the administrator, is equivalent to a judgment, and can only be attacked for collusion and fraud" (451-452).
Matter of Barbey, 177 Misc. 898 = 32 N.Y.S.2d 191 (N.Y.Surr.Ct. 1941)
Last will: "I authorize my executors to determine in their absolute discretion which employees will qualify to receive a share under this paragraph and to interpret and apply in their discretion the formula above stated" (899-900).
Case: "Under the provisions of article 'Tenth' of his will, the testator specifically authorizes his executors "to determine in their absolute discretion which employees will qualify to receive a share under this paragraph and to interpret and apply in their discretion the formula above stated." If effect is to be given to the expressed intent of the testator, it is the executors rather than the court who are granted the authority to determine which of the employees of said company are entitled to share under the provisions of said article. In the absence of an abuse of discretion by the executors, the court has no power to interfere (Matter of Cowen, 148 Misc. 35.) The executors, pursuant to such express authority conferred in the will, have determined that these two claimants were not continuously employed during the two-year period in question. Under the circumstances, there was no abuse of discretion herein. It is not contended and it cannot be found that the executors acted arbitrarily or capriciously. It is quite evident that the granting of such absolute discretion to the executors was for the specific purpose of conferring upon the executors rather than upon the court the power to determine those employees qualified to share under said article "Tenth." That the facts herein present a fairly debatable issue as to whether these two claimants were so continuously employed demonstrates the foresight of the testator in conferring upon the executors the discretion of determining the employees qualified to share as legatees thereunder, rather than imposing upon the court the burden, and upon the estate the expense, of unnecessary litigation" (900-901).
Howe v. Sands, 194 So. 798 = 141 Fla. 813 (Fla. 1940)
"To the Executors hereof I give the exclusive right to determine who are my servants at the time of my death, also the number of years' service they have respectively served and the amount of the bequests to which they are severally entitled" (798).
"Paragraph Five of the Will gave to the Executor the exclusive right to determine who were the servants at the time of his death, the number of years of service, and the amount of the bequests to which each was entitled. The intention of the testator was clear, free from ambiguity, and expressed in language free from doubt. The authorities hold that the power to make such a provision is valid ..." (819).
Mulligan v. McDonagh, 307 Mass. 464 = 30 N.E.2d 385 (Mass. 1940)
G.L. (Ter. Ed.) c. 204, § 15, provides as follows: "The supreme judicial court or the probate court may authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the petitioners for administration with such will annexed, to adjust by arbitration or compromise any controversy between the persons who claim as devisers or legatees under such will and the persons entitled to the estate of the deceased under the laws regulating the descent and distribution of intestate estates, to which arbitration or compromise the persons named as executors, or the petitioners for administration with the will annexed, as the case may be, those claiming as devisers or legatees whose interests will in the opinion of the court be affected by the proposed arbitration or compromise, and those claiming the estate as intestate, shall be parties" (466).
Taylor v. McClave, 128 N.J.Eq. 109 = 15 A.2d 213 (N.J.Ch. 1940)
This court cannot be deprived of its jurisdiction by any direction of the testator to the effect that his executor, or any other person, other than the court, shall construe or define the provisions of a will. In re Reilly's Estate, Supreme Court of Pa., 200 Pa. 288, 49 A. 939, 940. The court in the Reilly Estate said: "The jurisdiction of the court to determine the matter in controversy was questioned in the trial below, by reason of the attempt of the testator to confer exclusive authority upon the executors to define the provisions of the will, and make their decision final and conclusive. The learned court below held that the orphans' court had jurisdiction in this matter. No exception appears to have been taken to this ruling, and the claim does not seem to be strongly pressed here. We are clear that this controversy is properly here for adjudication. A testator may not deny to his legatees the right of appeal to the regularly constituted courts ..." (216).
Nations v. Ulmer, 139 S.W.2d 352 (Tex.Civ.App. 1940)
If by the terms of the will defendants were made the arbiters of the amount of their compensation, we think a reasonable construction made in good faith would be binding on all concerned.
A provision in a will making the decision of the executor binding on disputed questions as to the construction thereof is a valid provision. If such a decision is fairly and honestly made and the will is reasonably susceptible of such construction same is final.' Couts v. Holland et al., 48 Tex.Civ.App. 476, 107 S.W. 913; Grant et al. v. Stephens, Tex.Civ.App., 200 S.W. 893; 69 C.J. p. 124, § 1166.
The provision relied on to confer arbitral powers on the trustees is to be found in the codicil. There it provides the trustees may retain as compensation in addition to fees and commissions allowed by law in administration of estates ten per cent of 'gross income without judicial ascertainment.' In our opinion this will does not confer arbitral power on the trustees. In the cases above cite the provisions conferring such power of construction were clear and distinct. The word “ascertainment” in the clause in question means, we think, determination. The whole phrase construed with the context means that they may retain their compensation without first having, same judicially determined. It may, perhaps, be contended with some logic that, the provision as we have construed it renders same meaningless. However, the construction given harmonizes with the will, in that an administration is contemplated with the minimum of judicial control. In order to confer the function of arbiter on a fiduciary in a matter in which his personal interest necessarily conflicts with the interest of the beneficiaries, the intent to do so should clearly and unequivocally appear from the context of the will" (356).
In re Estate of Meredith, 275 Mich. 278 = 266 N.W. 351 = 104 A.L.R. 348 = 1936 Mich. LEXIS 551 (Sup.Ct. 1936)
The Michigan statute relating to arbitration provides only for the arbitration of cases that might be subject to an action at law or suit in chancery. Mich. Comp. Laws § 15394 et seq. (1929). It applies only to controversies between parties, not to proceedings for determining the status of estates which are proceedings in rem
“Arbitration proceedings recognized in this State are either statutory or common-law proceedings. The statute relating to arbitration provides only for the arbitration of cases which might be subject to an action at law or suit in chancery. It applies only to controversies between parties, not to proceedings for determining the status of estates which are proceedings in rem. Here there was no execution of an agreement to arbitrate, no hearing held before the arbitrator, no oath administered to the arbitrator or the witnesses before him, no agreement as to the binding force and effect of the award. There was no sum of money or damages awarded upon which a judgment could be entered, no judgment of the court could be entered for the recovery of any debt or damages, and, as a common-law arbitration, the court could not decree specific performance of the award because the award was one which could not under the law be submitted to arbitration.
Probate proceedings are not suits or actions. They may affect persons not named in the record. The rights of all concerned or interested in the estate in question are involved. The issue upon the admission to probate of a will is marked out by statute and may not be contracted to the detriment of those concerned or interested by the act of others who happen to be proponents. A transaction between two contending parties cannot bind the interests of a third. An agreement between the parties "has no application to those cases where the object of the litigation is to ascertain and settle the state or condition of the subject matter, as distinguished from the pecuniary rights or liabilities of confronting and contending litigants” (294-295).
“The jurisdiction of arbitration is well stated in 2 R.C.L. p. 358: "The general rule is that all disputed matters not involving questions of a criminal nature are proper subjects for settlement by arbitration. It is not requisite that a legal right of action be involved. Disputes of a criminal nature are not arbitrable, for the reason that they are matters of public concern. Disputes concerning an illegal matter or transaction are not proper subjects for arbitration, and an award in such a case stands upon no higher ground than the original claim and is consequently unenforceable" (300-301).
“The general rule which may be adduced from these cases is that courts favor arbitration and will recognize this type of agreement when not contrary to public policy, not void or contradictory upon its face and agreed to by all parties in interest. In the case at bar the agreement was not contrary to public policy, nor were its terms contradictory or void, and we think it was entered into by all of the interested parties. The agreement did not affect the will which had been admitted to probate; it merely related to the codicil and the principal parties interested in the codicil were the three executors named therein. The agreement was not a substitution for the judgment of the probate court, but was, in the final analysis, merely an agreement to prevent a will contest” (303-304).
Stevens v. Felman, 338 Ill. 391 = 170 N.E. 243 (Ill. 1930)
“Paragraph 9 provided that in the event of dissatisfaction by the testaor's son with the daughter's management of the estate, if there were just cause for complaint, there should be no court proceedings but all questions in dispute should be referred to arbitration, one arbitrator to be selected by each child, and in the event of disagreement by the two they to select a third, the decision of two of the three to be binding. Paragraph 10 provided that in the event either child refused to be bound by the provision of paragraph 9, before commencing court proceedings such child should put up a bond to indemnify the other against all costs, including attorney fees … Paragraph 12 nominated Blanche M. executrix of the will and requested that she act without bond” (395).
Talladego College v. Callanan, 197 Iowa 556 = 197 N.W. 635 (Sup.Ct. 1924)
Testamentary Power — Authorizing Executors to Construe Will. A testator may validly constitute his executors the final arbiters to determine the meaning of his will and the amount due a legatee, and such decision will be final if it is rendered in regard to a matter in fair dispute, is not arbitrary, but on the contrary is in good faith, and based on reasonably plausible arguments arising out of the terms of the will and out of the facts and circumstances attending the settlement of the estate
"It will be noted that by the forty-ninth paragraph the testator constituted his executors final arbiters of any question of construction or meaning which should arise under his will, or any question of right or of dispute as to how much anyone is entitled to" (560)
"This necessarily means that the question raised must present a fair dispute. The decision may not be arbitrary. It may not contradict the clear provision of the will. In other words, the power may not be abused. In this case, one of the executors is a residuary legatee. He has, therefore, personal interest in the dispute. If that were sufficient to disqualify him, it would avail nothing to the plaintiff, because he is only a minority, in any
event. The decision made was concurred in by all the executors. There have been several successive executors, because of vacancies resulting by death and resignation. All these successive executors have concurred in the same decision.
There is also respectable authority to the effect that the residuary legatee is not thereby disqualified from exercising this function. American Bd. of Com. v. Ferry, 15 Fed. 696, 700. The reason for this holding is that the testator had a right to do as he would with his own, and that he had equally the right to name the same person as a residuary legatee, as executor, and as arbiter.
"We have no occasion to go into the ultimate legal merits of the decision rendered by the executors. We have only to decide whether the objection raised by the defendants to the plaintiff’s claim is artificial or fanciful, and whether their decision is an abuse of their power, in that it is arbitrary and contradictory to the clear terms of the will; or whether it is honest and in good faith, in that it is sustained by theory and argument reasonably plausible. We have no hesitancy in saying, upon the briefs before us, that the controversy is one which opens the door to very persuasive argument on either side" (561-562).
In re Will of Meadows, 185 N.C. 106 = 116 S.E. 257 (N.C. 1923)
“In the present case the clerk, after fully considering the petition and the affidavits offered in its support, has rejected the application, finding that the allegations are not supported by the evidence. On appeal, the court, without considering the evidence on the principal questions, has dismissed the petition, being of opinion that the petitioner is estopped by having entered into an arbitration agreement touching certain disputed matters in volved [involved] in the inquiry, but we do not concur in this view. This alleged arbitration entered into on 25 January, the day after the will was admitted to probate, seems to concern chiefly certain personal property, the title to which was in dispute between the petitioner and Mrs. Stratton, a granddaughter of the testator, and as to which both are claiming, not under the will, but against it, and its does not sufficiently appear that either the agreement or the award should necessarily and as a conclusion of law operate as an estoppel in the matter. Apart from this, a persual of the record will disclose that the intestate died (102) on 21 January. The will was admitted to probate on 24 January, and the arbitration agreement was entered into on 25 January, and the arbitration agreement was entered into on 25 January, the next day, and both the allegations and the evidence offered by the petitioner are broad enough to include and apply to both the probate of the will, the qualification, and the agreement to arbitrate, and we are of opinion that this must be heard and considered by the appellate court” (106-107).
“Under the law of Washington, common-law arbitration does not exist in the state of Washington … The arbitration tribunal under the statute of Washington had relation to the courts of the state … and the trustee in bankruptcy was powerless to submit to arbitration an issue in the state court, within the jurisdiction of this court, except as directed by this court …Can the arbitration be sustained under the provisions of the Bankruptcy Act, § 26?
The trustee may, pursuant to the direction of the court, submit to arbitration any controversy arising in the settlement of the estate.
B. Three arbitrators shall be chosen by mutual consent or one by the trustee, one by the other party to the controversy, and the third by the two so chosen, or if they fail to agree within five days after appointment the court shall appoint the third arbitrator …
It appears in view of the stipulations in the contract and the selection of arbitrators by the respective parties that section 26, supra, and General Order 33 have been substantially complied with, and that the objection to the award is not well founded. The award is final, except for fraud or apparent arbitrary conduct (2 R.C.L. 386), and no fraud or arbitrary conduct is shown. …” (280-281).
"By the terms of the will, item 8, the executors and trustees named, in whose judgment, discretion, and honesty the testator evidently reposed great confidence, were made umpires to decide "all doubtful questions of construction in the interpretation of said will according to their best judgment without resort to the courts." In Couts v. Holland et al., 48 Tex. Civ. App. 476, 107 S.W. 913, writ denied, 110 S.W. xiii, it is held that this provision authorized the trustees to determine what property the will applies to, and what it does not, and does not limit them to a determination of what disposition was intended to be made of property to which it clearly applies. In Thompson on Wills, § 432, where the last-mentioned case is cited with approval, it is said: 'It is not unusual for the testator to provide in his will that all questions relative to the construction thereof are to be submitted to a certain designated person or persons, such as his executors, who shall act as umpire or arbitrator, and whose decision, if fairly and honestly made, will be final and binding on all parties interested.'
In the instant case the chosen umpires have construed the will so as to include within the estate devised and bequeathed to them in trust the income as well as the corpus of the estate. Since we do not feel justified in holding that the conclusion reached by the executors and trustees upon this point was not fairly and honestly made, and reasonably to be predicated upon the terms of the will taken as a whole, it follows that we are not authorized, under the authorities, to overrule their decision. Of course, if the decision made by the trustees evidenced a gross departure from the manifest intent of the testator as disclosed in the will, then it could not be said that such decision was the result of an honest endeavor to find that intent, as held in Pray et al. v. Belt et al., 1 Pet. (U.S.) 670, 7 L.Ed. 309. But we do not find such a condition to exist here, and are of the opinion that said conclusion reached by the trustees, upon a question involving the proper construction of the terms used by the testator, is one reasonably reached and deduced from the language used" (896).
Couts v. Holland, 48 Tex.Civ.App. 476 = 107 S.W. 913 (Tax.Civ.App. 1908)
When an arbiter honestly and in good faith exercises his power and passes upon a doubtful question, either of law or fact, his decision will not be revised by a court, notwithstanding the court, whose interposition is invoked, may think his interpretation is erroneous. Rule applied to the interpretation of a will by executors, in whom the power to interpret the same was vested by the terms of the will
By appellant's first assignment of error and the propositions thereunder the contention is made that, though the executors are made the arbiters to determine conclusively "all doubtful questions of construction in the interpretation of the will," still the question of the scope of the will — of what property it applied to and what property it did not apply to — is a matter not submitted to these arbiters by the testator, and is, therefore, a matter upon which their decision is not binding. At least a majority of us are unable to agree with this contention. We think the intent of the testator is clear that, wherever there was doubt as to the meaning of the instrument, that doubt was to be settled by the executors and by no one else. The power to determine what the will means, in its every part and provision, involves as well the power to decide what property it operates upon as it does the power to decide just what disposition is intended to be made of property clearly within its operation. A doubtful question of construction may as easily arise in the one case as in the other" (481-482).
Sullivan v. Nicoulin, 113 Iowa 76 = 84 N.W. 978 (Kossuth Dist.Ct. 1901)
Special Administrators: lack power to submit to arbitration. Under Code 1873, sections 2357-2360, providing that special administrators may do all needful acts to collect the property of the deceased, under direction of the court, but shall take no steps as to allowing claims against the estate, a special administrator has no power to submit such claims to arbitration
After Plumley’s death, pending the probate of his will, E. H. Clarke was appointed special administrator, and while acting in that capacity, and without the order or approval of court, entered into an agreement with the defendant to submit to arbitration, among other things, whether anything should he allowed the estate for the plastering, and, if so, what amount, and also what amount of damages defendant had suffered by reason of the work not being properly done. The arbitrators found that the estate should recover nothing, and defendant be allowed $75 as damages. The court, in sustaining a demurrer to a division of the answer setting up these facts, held that the special administrator was without authority to enter into such an agreement. No doubt executors and administrators at common law had the power to submit controversies affecting estates to arbitration. Wood v. Tunnicliff, 74 N. Y. 38; Hutchinson v. Johnson, 12 Conn. 376 (30 Am. Dec. 622) and note; 2 Woerner, Administration section 327. As the award was of no judicial force, an action thereon being necessary to give it effect, and as the executor or administrator, though acting in good faith, was still liable for any difference between the award and the amount recoverable at law, there was little inducement to arbitration, and it was not looked upon with favor. In view of the specific provisions of our Code, and especially section 3344, authorizing the reference of 'claims against an estate and counterclaims hereto,' in the discretion of the court, to one or more referees, whose decision shall be final, it may well be doubted whether, in this state, an administrator or executor, without the court’s approval, lies any power to so submit such, controversies. See Reitzell v. Miller, 25 Ill. 53; Yarborough v. Leggett, 14 Tex. 679. Even more limited are the powers of a special administrator. Tie is simply 'to collect and preserve the property of the deceased,' and for this purpose 'may do all needful acts, under the direction of the court, but shall take no steps in relation to the allowance of claims against the estate.' Sections 2357, 2360, Code 1873. So that any action of the special administrator relating to the-- allowance of the claim of defendant for damages, save as a: mere set off, was utterly void. But nothing is claimed for this, as the arbitration of the administrator’s cause of action only is pleaded in bar. That a special administrator may maintain actions appears from Masterson v. Brown, 51 and, Iowa, 446. This is incident 'to the duty of collecting preserving the property.' Otherwise, indebtedness to the estate might be lost, through the running of the statute of’ limitations and other causes. Such was the rule with respect to the powers of an administrator pendente lite at the common law. Kaminer v. Hope, 9 S. O. 258. See 2 Libby v. Cobb, 76 Me. 471. From this, however, it does not follow that he may enter into a contract for arbitration. In the first place, such an agreement is not essential to the performance of his duties; and, in the next, he has no such interest in the estate as will permit of his so doing. The right of general administrators to arbitrate is founded upon their legal title or interest in the assets of deceased, their power of disposition, and their authority to adjust and settle claims. But the special administrator, though an officer of the court, is not vested with any of these powers. His authority is no more than that of an agent. Long v. Burnett, 13 Iowa, 33. And even a general agent, without express authority, may not submit to arbitration. v. Emmons, 29 v. 12; Trout Ill.433; Scarborough Reynolds, Ala. 252" (78-79).
In re Reilly's Estate, 200 Pa. 288 = 49 A. 939 (Sup.Ct. 1901)
The twenty-first clause is: ‘My executors are to define the provisions of this, my will, and their decision shall be final and conclusive upon all matters in it .." ... It follows, therefore, that since by the twelfth clause it clearly appears that testator intended to sever the product from its source, disposing of the income annually, and after the death of the first taker, providing for the ultimate distribution of the principal a trust was sufficiently created to warrant the executor in retaining the fund for the purposes named".
Estate of Carpenter, 127 Cal. 582 = 60 P. 162 (Sup.Ct. 1900)
Contest of Will — Arbitration — Estoppel of Proponents.— The matter of the contest of a will cannot be submitted to arbitration, and the proponents of the will cannot he estopped by an award thereunder to insist upon the probate of the will, especially where the' principal beneficiary under the will is a minor, and the arbitrator is to make his award without evidence, and to determine from his own judgment what is a reasonable, just, and equitable amount to be set over to the contestants by the beneficiaries under the will
The reference to the documents is not sufficient to warrant our considering them, but, if it were, it is quite plain that the matter of the contest cannot be submitted to arbitration. Tire matter of the probate of a will is a proceeding in rem 'binding on the whole world. A few individuals claiming to be the heirs cannot, by stipulation, determine such controversy. There are many other reasons why this submission cannot be sustained. The principal beneficiary under the will, being a minor, was not bound by it. The terms of the agreement itself are contradictory and absurd. Frank T. Baldwin is to arbitrate the matter, and to get his information as he pleases, neither party having a right to submit any evidence to him. He is to determine ‘what, under all the circumstances of the case, is a reasonable, just, and equitable amount or portion of said estate, to be set over to said contestants in full for all claims of each and every of them.’ He must fix the amount in money they are to receive, and ascertain the value of the land so the proponents can pay in money or land, and the proponents have five days after the award to determine whether they will pay in money or land» (585-586).
Johnson's Appeal, 71 Conn. 590 = 42 A. 662 = 1899 Conn. LEXIS 30 (Sup.Ct. 1899)
An executor or administrator, without any special authorization, may settle and discharge any claims the estate may have against others, and consequently he may compromise and settle doubtful or disputed claims of that kind, or may submit them to arbitration, but he does this subject always to the approval of the court of probate in passing upon his final account, and, so to speak, at his peril to a certain extent, while under 1895 Conn. Pub. Acts 83 he, in effect, gets this approval in advance of the act of settlement and compromise
"An executor or administrator, without any special authorization, may settle and discharge any claims the estate may have against others, and consequently he may compromise and settle doubtful or disputed claims of that kind, or may submit them to arbitration; Alling v. Munson, 2 Conn. 691; 3 Redfield on Wills, p. 236; Boyd v. Oglesby, 64 Va. 674, 23 Gratt. 674; but he does this subject always to the approval of the Court of Probate in passing upon his final account, and, so to speak, at his peril to a certain extent; while under the statute he, in effect, gets this approval in advance of the act of settlement and compromise, and this measure of protection the Superior Court has the power to give him in the present case" (595).
"Indeed, speaking generally, it may be said that the power of the representatives of others to submit claims to arbitration wherever such power exists at all, flows from the prior right to adjust and settle claims and institute and defend suits, as appears from the reasoning of the court in the cases of Hutchins v. Johnson, supra; Griswold v. North Stonington, 5 Conn. 367; Union v. Crawford, 19 id. 331; Mallory v. Huntington, 64 id. 88. If such representatives are held to have the lesser power to submit to arbitration, it is generally because they have the larger power to adjust, settle, and litigate" (596-597).
District of Columbia v. Bailey, 171 U.S. 161 = 18 S.Ct. 868 = 43 L.Ed. 118 (1898)
"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. While, however, the agreement of the executor to a common-law submission was binding upon him, such a consent on his part did not protect him from being called to an account by the beneficiaries of the estate, if the submission proved not to be to their advantage, because the submission was the voluntary act of the executor, and was not the equivalent of a judicial finding. 3 Williams, Ex'rs, p. 326, and authorities cited. So, also, the power of a municipal corporation to arbitrate ariss from its authority to liquidate and settle claims, and the rule on this subject is thus stated by Dillon (Mun. Corp. [4th Ed.] § 478)" (172).
Fairbanks v. Man, 19 R.I. 499 = 34 A. 1112 (R.I. 1896)
“We do not wish to be understood as deciding that the point taken by the defendant's counsel, viz., that the payment was made in the exercise of the administrator's statutory power to compromise, (Pub. Stat. R.I. cap. 184, § 32,) is sustainable. The statute only authorizes an executor or administrator to compromise claims, "in the same manner and with the same effect as the testator or intestate might have done." This evidently limits the power to claims existing at the time of the decease of the testator or intestate.
As follows: SEC. 32. Executors and administrators may submit to arbitration or may adjust by compromise any claims in favor of or against the estates by them represented, in the same manner and with the same effect as the testator or intestate might have done” (503).
Cogswell v. Railroad, 68 N.H. 192 = 44 A. 293 (N.H. 1894)
“So the right of an administrator to submit to arbitration does not appear to ever have been denied. Bean v. Farnam, 6 Pick. 269, 272. In that case it was said: 'The general principle is, that every one having the capacity to contract, or to release his right, may make a submission to an award. If a less sum should be awarded in favor of the executor or administrator than he be entitled to recover at law, he might be held to account for the deficiency to the heirs, or other persons interested in the effects of the testator or intestate, but the award would be binding.' In Chadbourn v. Chadbourn, 9 Allen 173, it was held that this authority was not repealed or impaired by the statute empowering of probate to authorize executors and administrators to adjust by arbitration demands in favor of or against the estates by them represented; that 'the legislature intended only to give security and protection to these officers in the exercise of that authority with which they are clothed by the common law, and to relieve them from liability to have their acts . . . revised or set aside to their injury by those who were interested in the effects of the testator or intestate.'
The power of an administrator to submit to arbitration is said to be based upon the fact that he his power to prosecute or defend suits. Kendall v. Bates, 35 Me. 357; Eaton v. Cole, 1 Fairf. 137: Weston v. Stuart, 2 Fairf. 326. The award is binding against him in his fiduciary capacity (Wheatley v. Martin's Adm'r, 6 Leigh 62), and against the legatees or distributees and creditors of the estate. Strodes v. Patton, 1 Brock. 228” (193-194).
Parker v. Prov. Stonington S.Co, 17 R.I. 376 = 22 A. 484 (R.I. 1891)
“The only question raised by the demurrer is, whether an executrix has the power to compromise and settle such a cause of action as is set out in the plaintiff's declaration, without the assent of the next of kin. Pub. Stat. R.I. cap. 184, § 32, provides as follows: ‘Executors and administrators may submit to arbitration, or may adjust by compromise, any claims in favor of or against the estates by them represented, in the same manner and with the same effect as the testator or intestate might have done’” (379).
The power of an executor or administrator at common law to compromise, or submit to arbitration, disputed claims in favor of or against the estate which he represents, is undoubted. Chadbourn v. Chadbourn, 9 Allen, 173; Bean v. Farman, 6 Pick. 269; Chase v. Bradley, 26 Me. 531; Chouteau v. Suydam, 21 N.Y. 179, 184; Wood v. Tunnicliff, 74 N.Y. 38; Murray v. Blatchford, 1 Wend. 583, 616; Rogers v. Hand, 39 N.J. Eq. 270, 271, and note.
It is also well settled that a statute like the one under consideration does not change the power of the executor or administrator existing at common law, but simply reinforces and affirms the same. If, in the exercise of this power, the executor or administrator, by reason of negligence, or any serious error in judgment, obtains a less sum than he would clearly be entitled to recover at law, he may be held to be guilty of a devastavit, and be required to make up the loss out of his own estate, but still the compromise, if made in good faith, would be binding upon the parties thereto” (380-381).
Lassiter v. Upchurch, 107 N.C. 411 = 12 S.E. 63 (N.C. 1890)
“2. An agreement to arbitrate, and the award, under section 1426 of The Code, between the claimant and the administrator, where there is fraud or collusion, is binding upon the heirs at law, even though they were not parties to the proceedings.
3. In a proceeding by an administrator to make assets to pay the debts of the estate, heard upon issue raised an appeal from the clerk of the Superior Court, the defendant's heirs at law offered to show that a claim adjudged to be a debt against the estate by the arbitrators to whom the matter had been referred under section 1426 of The Code, was not, in fact, a valid debt: Held, (1) that the finding of the arbitrators was binding upon the heirs, though they were not parties to the proceedings; (2) it is equivalent to a judgment; (3) such proceedings could only be impeached for fraud or collusion” (411)
Stahl v. Brown, 72 Iowa 720 = 32 N.W. 105 (Sup.Ct. 1887)
Estates of Decedents: power op heirs to bind administrator. The heirs of an estate have no power, before the appointment of the administrator, to create by agreement a charge on the personal estate, which will be binding upon the administrator when appointed. And so, where the heirs agreed with one having a claim against the estate for supporting the decedent to submit the claim to arbitrators, held that the award of the arbitrators could not be enforced against the administrator subsequently appointed, because the personal estate descended to the administrator, and not to the heirs; (Haynes v. Hams 38 Iowa 516, and Phinney v. Warren, 52 Id., 333)
"There is no stipulation in the agreement for the submission of the claim to the arbitrators as to the fund out of which the award should be paid; but the understanding undoubtedly was that it should be paid out of the assets of the estate. There is no claim that the heirs became individually liable for the amount; nor is there any stipulation in the contract that they should pay the amount; and plaintiff does not ask for any relief of that character against them. Her claim, if she has any, is against the estate; and the only assets of the estate, as we understand, is certain personal property. By the arbitration, then, the parties sought to have determined the amount which was due to plaintiff from the estate, and to appropriate an amount of its assets sufficient for the payment of the amount which should be awarded to that object. But the heirs had no power to do that. The estate had not yet been administered upon. But the time within which, under the statute, administration might be granted, had not yet expired. It will be observed, also, that it was not stipulated in the agreement that the estate should not be administered upon, nor that it was entered into for the purpose of avoiding the cost of administration; and we do not determine the question whether the heirs could have precluded administration by an agreement to that effect, for no such question arises in the case. When the agreement was signed, the estate was subject to be administered upon; and while it was in that condition the heirs had no power to make any disposition of the assets. Neither had they the power to bind it by any contract with reference to the establishment or allowance of claims against it. The heirs take no title to or ownership of the personal property of the estate while it is subject to administration; but it descends to the administrator upon bis appointment. Haynes v. Harris, 33 Iowa 516; Phinney v. Warren, 52 Id., 333. … If the heirs could, in advance of administration, bind the administrator by submitting claims against the estate to arbitration, it would be an easy matter in any case to secure the allowance of doubtful or even fraudulent claims, and the rights and interests of other claimants might by that means be greatly prejudiced. And it can make no difference that in this case the estate is sufficient to pay all claims against it, including the one in question, so that no interests, except those of the heirs, are affected by the proceeding. The question is whether the administrator can be bound by the action of the heirs with reference to the claim prior to his appointment, and we think it entirely clear that he cannot be so bound" (722-723).
Moore v. Harper, 27 W.Va. 362 (W.Va.Sup.Ct. 1886)
A testator provides in his will that a certain person therein named shall decide all questions, which may arise among his devisees and legatees in relation to the construction of his will, and that the written opinion of such person shall be final ... That the written opinion of such person, if made without fraud and corruption, will be treated by the courts as final and conclusive of the matters decided as between the devisees and legatees affected thereby
Arbitration Clause in the last will: "And should any difficulty occur in the construction of this will or among the legatees or devisees ... it is my will that said question be submitted to William Skeen, whose written opinion shall be final between them, of if ... Skeen's opinion can not be had, I authorize the circuit judge to appoint three persons as arbitrators, whose opinion shall be final of any or all such questions ..." (363).
Case: "The power of the testator to provide in his will the mode and manner of its interpretation and the force and effect of such interpretation, does not seem to have been questioned in this suit—it has certainly not been controverted by the proceedings or argued in this Court. No authorities have been referred to, nor have I deemed it necessary to look for precedents, as the question seems to me to be so entirely analogous to contracts and other writings in which provision is made for their interpretation. In such cases, the right to prescribe the mode of interpretation and the effect to be given to it has, 1 believe, never been questioned. The effect of such a provision is to make the person appointed to interpret the writing, or settle controversies growing out of it, an arbitrator chosen by the parties, and his determination may be made final or otherwise as the parties shall provide in the writing. I can see no reason why the same rule should not apply to a will. Of course a will is not an agreement between two or more contracting parties, but it is certainly no less binding upon the parties who take a benefit under it than if they had contracted with the testator for that benefit. The testator has full dominion over his property with the absolute right, subject only to the limitations fixed by law, to do with and dispose of it in any manner or to whomever his will or caprice may suggest. Within the rules of law he may subject it to any limitation, restriction or condition he chooses, and the devisee or legatee, if he elects to take under the will, will be bound to respect and observe the same. It, therefore, seems to me entirely clear that a testator has the power not only to appoint a person or arbitrator to interpret and settle difficulties among the devisees and legatees growing out of the dispositions made by the will, but that he has the right to make the decision of such arbiter, if made without fraud or corruption, final and conclusive upon the beneficiaries under the will" (373-374).
Wamsley v. Wamsley, 26 W.Va. 45 (Sup.Ct. 1885)
An administrator, or other fiduciary, has authority to submit to arbitration any suit or matter of controversy touching the estate or property of his intestate or beneficiary without having first obtained the permission of the circuit court to do so in the manner prescribed by section fiye of chapter sixty-three, Acts 1882 ; and an award made pursuant to such submission will not be set aside merely because the submission was made by the fiduciary without a compliance with the directions of said statute.
"By an agreement in writing entered into between Jacob W. Wamsley and Samuel B. Wamsley, dated September 13, 1883, they agreed to submit to the determination of two arbitrators and their umpire a controversy then existing between the former as administrator of Andrew M. Wamsley, deceased, and the said Samuel B. Wamsley and providing therein, that the award when made should be returned to and entered as the judgment of the circuit court of Bandolph- county. The arbitrators and umpire met and made their award, by which they awarded, that the said Jacob W. Wamsley as administrator of Andrew W. Wamsley, deceased, should recover from the said Samuel B. Wamsley $841.50 with interest, &c." (45).
“The said statute, in substance, provides, that 'a personal representative or other fiduciary may file his petition in the circuit court asking permission of the court to submit to arbitration any suit or matter of controversy touching the estate or property controlled by him as such representative or fiduciary, that he shall state the facts in his petition, upon which he seeks such permission, and the court may grant or refuse the prayer of the petitioner. If the petition is filed in good faith and the prayer granted, an order shall be made showing the granting of such permission- and be entered on the chancery order-book of the court, and the award made in any such case shall be binding upon all the parties in interest and maybe entered as the judgment of the court, as awards in other cases; and if the petition is filed in good faith, and there was no fault or neglect on the part of the fiduciary, he shall not be responsible for any loss sustained by an award-adverse to the interests of the estate which he represents. Section 5, chapter 63, Acts 1882, p. 124.
This statute, neither expressly nor by fair implication, manifests any purpose to alter the common law rule as to the validity or binding effect of an award made without complying with the directions of the statute; and, therefore, the reasonable conclusion is, that the statute of 1849 was enacted to relieve the responsibility of the fiduciary in cases of an adverse award, and that the statute of 1882, was intended to qualify and add certain prerequisites as conditions, upon which such release from responsibility should be granted; and that neither of them was intended to affect the validity of the award, or to take away the authority of the fiduciary to submit any matter to arbitration without doing so in the manner prescribed by the said statute of 1882. Tennant v. Divine, 24 W. Va. 887, 891" (46-48).
Tennant v. Divine, 24 W.Va. 387 (Sup.Ct. 1884)
Emrod Tennant, as administrator of John Divine, deceased, and Joseph E. Divine entered into a written agreement, dated May 25, 1882, in which after reciting that Tenant as such administrator ‘claims an account against the said Joseph E. Divine’ which is unsettled and contested by said Divine, and the parties desiring to have the same amicably adjusted and settled, states that, they, for that purpose, ‘agree to refer the said account and matters in controversy touching the same, including any accounts the said Divine may have against the estate of said John Divine, to the arbitrament and award of Andrew. J. Morris and John E. Price, and a third person to be selected by them, whose award, or an award of a majority of them, shall be final and conclusive on the parties, and they further agree that said award shall be entered up in the circuit court of Monongalia county, West Virginia, as the judgment of said court’” (388).
“By the common law a fiduciary as such might submit to arbitration and the trust represented by him was bound thereby - 3 Leonard 53. But it injustice should be done the trust-estate by such submission, the fiduciary was held responsible as for a devastavit—Wheatley v. Martin, 6 Leigh 62; Nelson v. Cornwell, 11 Gratt. 724» (391).
American Bd. of Com'rs of Foreign Missions v. Ferry, 15 F. 696 (C.C.W.D.Mich. 1883)
Wills - testator may designate an umpire to construe his will - when such umpire's decision final
A testator may in his will designate his executor an umpire, and invest him with power to construe his will and determine every doubtful question that may arise touching the testator's intentions; and if such umpire exercises the power honestly and in good faith, his decisions will not be revised by a court, notwithstanding the court may think the same are erroneous (696).
Wood v. Tunnicliff, 74 N.Y. 38 (N.Y.Ct.App. 1878)
"Passing these preliminary questions, we come to the consideration of the principal question in the case, and that is as to the power of executors or administrators to enter into an arbitration in right of their testators or intestates. It is claimed by the defendants' counsel that no such power exists, and that it was a condition precedent to any liability of the defendants upon their promise that there should be a valid award.
Without considering whether, if the award was invalid for the reason stated, it would constitute a defense to this action, we think the assumption that executors or administrators cannot be parties to a submission to arbitration in right of their testators or intestates is not well founded, and that they have the power to submit to arbitration disputed claims or demands in favor of or against the estate they represent. That this power exists at common law is well settled (Bac. Ab., art. C; Wilkins v. Mitchel, 1 Lord Ray., 348; Barry v. Rush, 1 T.R., 691; Schoonmaker v. Roosa, 17 J.R., 301; Bean v. Farnam, 6 Pick., 269; Wheatley v. Martin, 6 Leigh., 62; Alling v. Munson, 2 Conn., 691; 2 Williams on Executors, 1800; Russell on Arb., 36; Watson on Arb., 74; Caldwell on Arb., 33.).
The right of executors or administrators to arbitrate is founded upon their legal title to the assets of the deceased, their power of disposition, and their authority to adjust and settle claims in which the estate they represent is interested. They will be bound by an award made pursuant to the submission, the same as other persons, although if the award is to the prejudice of the estate, as, for example, if the arbitrators award to an executor less than is due, he will it is said, be answerable to the heirs or other persons interested in the estate, as for a devastavit. (Bac. Abr., art. C.; Watson on Arb., 74; 6 Leigh., supra.) It is claimed, however, that the common law power of executors or administrators to submit claims against the estate to arbitration is taken away by the provisions of the Revised Statutes, relating to the reference of disputed claims against the estate of decedents. (2 R.S., 89, § 36-39.) It is to be observed in the first place that the common law power of executors or administrators to arbitrate is not taken away by any express provision of law; and if it is abrogated it must be for the reason that the statute relating to the reference of disputed claims against estates of deceased persons, and the system established thereby, is repugnant to and inconsistent with the continuance of the common law right. It is a familiar rule that a statute will not be construed as changing the common law unless the intention, appears from express words or by implication. There is not only an absence of any expression of legislative intention to take away the right of executors or administrators to enter into an arbitration in the statute relating to the powers and duties of executors or administrators, but the system regulating the settlement of disputed claims by reference under the statute is entirely consistent with the existence of this power. The statute was designed to provide an easy, prompt and inexpensive method of securing an adjudication, having the force of a judgment, upon the validity of claims made against the estates of decedents. But neither party is bound to refer a controversy under the statute. The executor or administrator may refuse to refer, and so may the claimant. The
courts are not ousted of their jurisdiction, and the claimant may bring his action to have his claim established in the ordinary way. The only consequence of his refusal to refer is to put the short statute of limitation in operation, and to prevent his recovering costs in an action against the executor or administrator, brought to recover the demand.
The settlement of disputes by arbitration is encouraged. It is generally a safe and convenient method of composing disputes and controversies. The general statute of arbitrations (2 R.S., 540) enacts that "all persons, except infants and married women and persons of unsound mind," may submit to arbitration any controversy which might be the subject of an action at law or suit in equity, with certain exceptions of claims to real estate. The personal representative of a deceased person, and a claimant, having a demand against the estate of a decedent which is disputed, are, in respect to such claim, within this general statute, and the right of executors or administrators to arbitrate is not excepted, but is included in its language. The exception claimed, if it exists, would naturally have been introduced into this statute, and the omission to insert it is of some moment in determining the question before us. But it is to be further observed that the sections of the statute, providing for the reference of disputed claims, only embrace one class of claims arising in the course of administration of the estates of decedents, viz., claims against the estate. Claims in favor of the estate are not embraced, and as to these the statute provisions for a reference have no application. It can admit of no doubt that, in respect to claims in favor of the estate, the common law power of arbitration still exists. If it was the intention of the Legislature to deprive executors or administrators of the power to arbitrate claims against the estate, no reason is apparent why the power in respect to claims in favor of the estate should not also have been abrogated. The statute has not, we think, in either case, changed the common law. It provides a special mode of adjudicating a certain class of claims, without the formal proceedings of an action, and leaves it to the option of the parties whether they will avail themselves of its provisions, and was not, we think, intended to restrict or exclude the common law right of arbitration. This question has never been decided in this State. In Merritt v. Thompson (27 N.Y., 225), the power of an executor or administrator to enter into an arbitration was assumed both by counsel and by the court, although the question was not considered. In Tucker v. Tucker (4 Keyes, 136), the point was not involved. The court say that the proceeding in question there, was not intended to be and could not be considered an arbitration. In Chouteau v. Suydam ( 21 N.Y., 179) it was held that the statute of 1847, which authorized executors to compromise claims with the approval of the surrogate, did not take away their common law right to compromise without such approval; and in Chadbourn v. Chadbourn (9 Allen, 173) it was held that the common law right of an administrator to submit to arbitration was not affected by a Massachusetts statute, which empowered courts of probate to authorize executors or administrators to adjust by arbitration demands in favor of or against the estates of decedents.
An award made against the estate under a submission by executors or administrators will ascertain and liquidate the claim submitted, but it will confer no right upon the party in whose favor it is made, as against other creditors, to priority of payment out of the assets. The statute regulates the rights of creditors to distribution, and an award of payment absolutely, while it may bind the executors or administrators, personally, cannot prejudice the right of other creditors, having debts of equal degree, to share in the distribution of the decedent's estate.
The authorities tend to establish that executors are personally bound by a covenant to abide by and perform an award contained in a submission entered into by them although in form they covenanted as executors, unless from the other parts of the submission it appears that the intention was to bind themselves only to pay out of the assets in due course of administration. (Barry v. Rush, 1 Term, 691; Worthington v. Barlow, 7 id., 453; Love v. Honeybourne, 4 Dowling Ryland, 814; Ferrin v. Myrick, 41 N.Y., 315; Summer v. Williams, 8 Mass., 162; Childs v. Monins, 2 B. Bing., 460; Ring v. Thorn, 1 Term, 489.)" (42-46).
Wait v. Huntington, 40 Conn. 9 = 1873 WL 1382 (Conn.Sup.Ct. 1873)
Court upheld testator's power to condition devises with following provision: "Should any questions arise as to the meaning of this instrument, I direct that the distribution of my estate shall be made to such persons and associations as my executors shall determine to be my intended legatees and devisees, and their construction of my will shall be binding on all parties interested" (9).
Manice v. Manice, 43 N.Y. 303 = 1871 N.Y. Lexis 8, 26 (N.Y.Ct.App. 1871)
Last will: I herby nominate ... executors and trustees of this my last will and testament; authorizing and empowering them ... to submit to arbitration any and all disputes or controversies which shall or may arise in the settlement of my estate".
Nelson's Adm'r v. Cornwell, 52 Va. 724 = 11 Grat. 748 (1854)
Executors and Administrators - Submission of Matter to Arbitration - Devastavit: An executor though he has authority to submit a matter to arbitration, yet is responsible as for a devastavit, if by the award his testator's estate is injured
Executors and Administrators—Submission of Matter to Arbitration – Devastavit - in Wamsley v. Wamsley, 26 W. Va. 46, it is said : ‘The court of appeal of Virginia in Wheatley v. Martin, 6 Leigh 62, decided that it is competent for an executor or administrator to submit to arbitration any controversy concerning the estate, whether the estate claims to be a debtor or a creditor; that this results necessarily from the full dominion which the gives law him over the assets and the full discretion which it vests in him for the settlement and liquidation of all claims due to and from the estate. And so far as relates to debtors and creditors, parties to the award, it is binding upon the legatees and distributees in the same manner as if the adjustment had been made by the executor or administrator without an award, in virtue of the general powers belonging to his fiduciary character. This is simply the announcement of the common-law rule, that a fiduciary as such might submit to arbitration matters affecting the estate or trust represented by him; and that an award made in pursuance of such submission would he binding upon parties to same extent that it would be if made between in their individual 3 Leonard 53; 1 Lomax on Ex’rs (1st Ed.) 356.
The same rule is announced in Nelson v. Cornwell, 11 Gratt. 724, decided in 1854, but upon a controversy, which arose prior to the enactment of section five, chapter one hundred and fifty-three of the Code of 1849, and therefore said statute had no effect upon said decision.
A conservator may submit to arbitration the claims of his ward.
"That a conservator has power to submit to arbitration. An executor or administrator has this power. Ailing, admr. v. Munson, 2 Conn. Rep. 691. Cofin v. Cottle, 4 Pick. 454. Bean v. Farnam & al. 6 Pick. 269. Dickey v. Sleeper, 13 Mass. Rep. 244. A conservator has unlimited controul over all the estate, except the power of selling the real estate. The executor or administrator has no greater controul. That it was the design of the legislature to give the conservator this controul, is obvious from the provision requiring him to return a true and perfect inventory and to give bond. Why return an inventory, if the property be not entrusted to him, and if he have not a right to the possession and controul of it? Why give bond, if he have no power, by reason of his controul over it, to waste and destroy it?" (380).
Wheatley v. Martin's Adm'r, 33 Va. 62 = 6 Leigh 62 (Va.Sup.Ct. 1835)
Executors and Administrators — Authority—Submission to Arbitration. — Although an executor has a right to submit a matter to arbitration, yet if injustice should be done the trust estate by such submission, the executor is responsible as for a devastavit. 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 footnote 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.”
"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 devastavit 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" (71).
The executors ... contend, that their testator has submitted the construction of his will, absolutely, to their judgment, and that their decision against the claim of the legatees, is final ..." (676).
"The acting executors, and executrix, are empowered, in all cases of dispute or contention, to determine what is the intention of the testator; and their decision is declared to be final.
This power is given, in the apprehension that he may have committed error. It is to be exercised in order to ascertain his intent in such cases. It certainly does not include the power of altering the will. It cannot be contended, that this clause would protect the executors in refusing to pay legacies altogether, or in paying to A, a legacy bequeathed to B, or in any other plain deviation from the will. In such case, what would be the remedy of the injured party? Is he concluded by the decision of the executors, or may he resort to a Court of Justice? But one answer can be given to these questions. So gross a departure from the manifest intent of the testator, cannot be the result of an honest endeavour to find that intent; and must be considered as a fraudulent exercise of a power, given for the purpose of preserving peace, and preventing expensive and frivolous litigation.
But who is to determine what is a gross misconstruction of the will, if the party who conceives himself injured may not submit his case to a Court of Justice? And if his case may be brought before a Court, must not that Court construe the will rightly?" (680).
Alling v. Munson, 2 Conn. 691 (Sup.Ct. 1818)
An administrator may submit a claim of his intestate to arbitration; and may, in that capacity, maintain a suit on the award
"I am of opinion, that the authorities clearly establish the position, that an administrator can submit a claim of the deceased, whom he represents, to arbitration and that he, can, in that capacity, maintain ⅞ suit on the award" (694).
Last will: "I do hereby give them full power ... to submit to arbitration, compromise, and settle all and every or any differences and disputes that may arise in and about the execution of this my last will and testament".