#### JOSEPH M‘K. ALEXANDER, Ex’or of WILLIAM J. WILSON, v. ROBERT H. BURTON et al., Ex’rs of JAMES CONNER.

June, 1837.

The Courts of this 'state have no power to make submissions to arbitration rules of Court, excepting when the subject-matter of the submission is a suit pending in them; and the Superior Court has no power to make an order appointing commissioners to audit and settle the accounts of an executor. An order of that Court appointing commissioners, is only obligatory so far as it sets forth a contract between the parties to it; and one made upon the joint petition of the executors and creditors, directing commissioners “ to adjust and finally settle” the accounts of the former, in the absence of proof to the contrary, is taken as only authorizing them to make a statement of his receipts and expenditures, and to allow his commissions ; and does not confer the right to disturb the priorities of the creditors, or in any way to interfere with the legal course of administration.

The bill charged in substance, that the plaintiff, being the sole acting executor of William J. Wilson, and having shortly after the death of his testator, and in pursuance of the directions of his will, made sale of all his estate, real and personal, and having discovered that it was uncertain whether the assets would be sufficient to discharge the debts due by bond and otherwise liquidated, for the pur-posé of removing all difficulties that might arise between. *470himself and the creditors having these demands, agreed to* refer “ the settlement of the estate and ,the question as to' whom and in what manner the assets were to be dis--bursed,” to the arbitrament of Pearsall Thompson, the clerk of the Superior Court of law for the county of Meck-lenburg, and William J. Alexander and Washington Morrison, Esquires; and that the same might be rendered-more solemn and permanent, it was agreed that a petition-should be drawn up and signed by the parties, praying-the judge of the Superior Court of said county to appoint the said Thompson, Alexander and Morrison to adjust and-' finally settle said estate, and to place the same’ on the-records of the Court. The bill further charged, that in pursuance of the said agreement, a petition was drawn up and signed by the parties, or their duly authorized agents :: that the judge ordered the matters contained in the said petition, to be referred as prayed for r- that the referees-thereupon made an award, which was filed among the records of the Court: that by said ¿ward they adjudged , that certain debts should be paid off in full, and that certain other debts claimed by the creditors, signing the-petition, and amongst them the debt due to the testator of defendants, should be paid out of the residue of the-assets pro rata, that is to say, at the rate of fifty-three cents upon the dollar : that the plaintiff had applied the assets as directed by the said award; had paid to the testator of the defendants in his lifetime a part of the sum awarded to him; and since his death had paid the residue thereof' to his widow, who, he charged, was authorized to receive the same. The plaintiff then complained, that notwithstanding he had furnished' the defendant with a copy of the award, he had instituted a suit at law to recover the whole amount of the bonds. To-the bill was appended as-an exhibit a copy of the petition, order of Court,' and’ award referred to.

The defendants by their answers denied, that their testator ever did agree to submit his claim against the plaintiff as executor of Wilson, to the arbitrament of any persons whatever; declared that they were informed and believed the fact to be,, that there was no communication *471with him on the subject of a reference either with respect to the validity of his claim, or the amount to be pai’d him thereon ; but that the paper-writing called a submission, (the petition) was handed to him when very ill, and that he directed James Wilson, the sort of cofnplainant’s testator, to sign it, under the belief that it was simply an application for the appointment of a committee to settle the plaintiff’s accounts as executor, and-.probably to fix the rate of his commissions ; and they insisted, that upon the petition and the order'of the Court thereupon, it is apparent that there was no submission to an award, nor any such submission contemplated by the parties.' They admitted, that a sum of money was paid by thsi plaintiff to their testator, which was duly endorsed on one of the bonds; and that after his death and before the. probate of his will, a further sum was paid to his widow'; but they peremptorily denied, that either of these sums was received on account-of the award ; and stated, that with regard to the latter sum, it was paid to the widow wholly without any authority on her part to receive it; but the defendant Burton, after his qualification as executor, having received from the widow the bonds, which until then had remained in her possession, and learning that so much money had been received by her on account thereof, caused the same to be endorsed as a further payment. The defendants admitted, that they had brought suit on the bonds to recover the residue unpaid thereof; aver that the sum claimed is justly, due; charged the plaintiff with fraud in the-administration of the estate; and contended that he had assets sufficient to satisfy their demands.

Upon these answers, his Honor Judge Satodees continued, until the hearing, the injunction which had issued-upon the filing of the bill to restrain the defendants from proceeding in their action upon the bond of the plaintiff’s testator to the testator of the defendants; and the defendants being dissatisfied therewith, his Honor was, upon their prayer, pleased to allow an appeal to this Court.

A. M. Burton, for the defendants.

D. F. Caldwell, contra.

*472Gaston, Judge,

after stating the case as above, pro-

ceeded as follows. — We deem it unnecessary to enter upon inquiry, whether if there has been the submission charged in the bill, the award thereupon does not furnish a legal defence against the action enjoined. Nor shall we examine w'hether it may not be open for the plaintiff to show by extrinsic evidence, that in truth such a submission was made; or for the defendants, on the other hand, to prove that théir testator signed the petition under a misconception of its import. In the present state of the conflicting allegations of the parties, and for the purpose of deciding on the question before us, we have confined our attention to the construction of the written documents exhibited. The petition is addressed to the' judge of the Superior Court of law and equity for the county of Meck-lenburg. It states that the executor of William J. Wilson and the creditors petition his Honor to appoint the clerk of the Court, together with William J. Alexander and Washington Morrison, Esquires, to adjust and finally settle with J. M'Knitt Alexander, the executor, the estate o,f William J. Wilson, and place the same on the records of the Court; and it purports to be signed by the executor, and by several persons as creditors, among w'hom is the testator of the defendants. The order thereupon is, that Pearsall Thompson, William J. Alexander and Washington Morrison, Esqrs. be appointed a committee, to adjust and finally settle the estate of William J. Wilson, deceased, with J. M‘Knitt Alexander, the executor. The petition is dated July, 1834, and the order is made at August term, 1834. The award bears date February 17th, 1835. It prefixes a statement of the unsatisfied demands against the estate, which is headed “ Report of the estate of William J. Wilson by the executor;” two lists of debts paid by the executor, and a statement showing “ amount of William J. Wilson’s estate,” and then proceeds to declare, that the said Alexander, Morrison and Thompson, being appointed by the Superior Court of law, by and with the advice and consent of the executor of William J. Wilson, on the one part, and of the creditors set forth in the preceding statement, on the other, to settle the estate of said *473Wilson, and “ decide to whom and in what manner the assets of said estate should be paid,” do award that the executor having paid the amount of debts as set forth in the two lists above-mentioned, do pay .those contained in the first statement pro rata out of the assets, there being a deficiency to pay all the bond debts and others of equal dignity: that the executor be allowed four per cent, commissions ; and that Margaret Wilson, (one of the petitioning creditors paid in full,) pay the executor one hundred dollars in addition to the commissions above allowed. There is then subjoined or endorsed, a'géneral statement representing the amount of the estate, the balance after deduction of commissions and debts subject to no deduction; the amount of debts subject to deduction ; and the excess of these above the balance of assets; showing that the executor will be enabled to pay fifty-three cents in the dollar. It does not appear when the proceedings of the committee or arbitrators were returned to Court, but that they were returned, would appear from the copy thereof certified by the clerk of the Court. There was no action thereon by the Court. The testator of the defendants died 11th April, 1835.

Executors and administrators are required by law to make a settlement of their estates with the County Court, which is authorized to make to them an allowance by way of commissions on the amount of receipts and expenditures, that shall appear to be fairly made in the management of the estates. It is the universal usage to.make this settlement through the agency of a committee appointed by the County Court, which committee also reports to the Court a reasonable rate of commissions. Such settlements, however, are regarded as ex parte settlements, and in no respect binding the creditors, legatees or next of kin, except as to the allowance of commissions when sanctioned by the Court. The Superior Courts have no original jurisdiction over these settlements or the allowance of commissions; nor have any of our Courts authority to direct a submission to arbitration to be made a rule of Court, unless when the parties agree to a reference of some subject of litigation actually pending before them. To a proceeding so *474anomalous as that which we aro examining, it is difficult to assign a precise character. It has no force as a judicial Proceeding — and is binding on the parties only to the extent to which the parties have declared their will to be thereby bound. From the concurrency of the creditors with the executors in the appointment of the persons to superintend or make the settlement between him and the estate, it may be inferred that the parties intended to impart to such a settlement a character above that of the mere ex parte settlements usually made by executors and .administrators. This inference is strengthened by the introduction of the unusual expression, “ finally,” in the .application for the appointment — “to adjust and finally •settle.” But whatever was to be the character of the settlement, whether conclusive, ex parte, or intermediate between these extremes, the main inquiry is, what was the subject-matter of it 1 The petition and the order thereon, show that this was “ the estate of the deceased with the executorand such a settlement involves directly no-more than an inquiry into his receipts and disbursements and the reasonable rate of commissions to be thereon allowed. • Before we can hold that the rights of the creditors as against the executor, or as to priority as between themselves, were conclusively adjudicated by an award, it must clearly appear, that the creditors submitted these subjects to adjudication. Had a submission of these rights been intended, we cannot but think, that the language of the petition and order would have been more explicit. The persons nominated to act, would have been characterized not as a committee, but as referees or arbitrators ; the subject-matter of the reference would have embraced, in terms, not merely a settlement of the estate with -the ■ executor, but in the language of the bill and the award, have set forth the questions arising between the creditors, “ to ■whom and in what manner-the assets of said estate should, be paidand the result of the reference have been designated, not as a settlement of the estate to be returned to Court, but by its well-known name of an award to be binding upon the parties. It would be dangerous to .imply a delegation of authority, not resulting from obvious *475intendment, to a tribunal raised by the parties, so as to deprive them of the power of resorting to the tribunals constituted by the law for the ascertainment of rights and the decision of controversies. Upon this view of the case, we are of opinion, that for the present, and upon the face of the exhibits, the award, as it has been termed, cannot be considered as binding the defendants to forego their claim to the unpaid residue of the bonds, for which they have brought suit.

On the trial of the suit, what effect shall be given as evidence to the accounts accompanying the report of the committee, is a question on which it were improper now to express any opinion.

The Court directs, that this their opinion shall be certified to the Court of Equity for the county of Mecklenburg, with instructions to reverse the order appealed from, and to order that the injunction heretofore granted in this case, be dissolved with costs. The plaintiff must pay the costs of this Court.

Per Curiam. Order reversed.