#### JEHU BROWN vs. ALLEN BROWN.

A provision in a bond to submit to certain arbitrators “ the division and settlement of our father’s estate,” necessarily involves the inquiry, what constitutes that estate. An award, therefore, that a certain slave, claimed by the executor in his own right, should be sold, and the money distributed among all the parties to the submission, was within the scope of the submission, and was obligatory on the executor.

Parol evidence is not only admissible, but necessary to show what matters were acted on by the arbitrators.

*124This was an aotioN of COVENANT, tried before MaNly, J., at a Special Term (June, 1856,) of Orange Superior Court.

The instrument declared on is as follows: “ Know all men by these presents, that we, John Brown, Vm. Brown, Allen Brown, Jehu Brown and Matthew Brown, are held and firmly bound, each to the other, in the sum of four thousand dollars,” &c., (dated August, 1841.)

“ The condition of the above obligation is such that, whereas, we have this day submitted to the arbitration and award of Catlett Campbell, Thomas Clancy and Stephen Moore, mutually chosen by us, the division and the settlement of the estate of William Brown, dec’d., our father, now in the hands of Allen Brown, executor, &c., between and amongst us, his legatees and heirs at law. Now if the said John Brown, William Brown, Allen Brown, Jehu Brown and Matthew Brown, shall stand to, and abide by, the division of, and settlement of, said estate amongst us, according to award made by said Catlett Campbell, Thomas Clancy and Stephen Moore, then the above obligation to be void, else, to remain in full force and virtue.” Signed and sealed by the parties above named.

The arbitrators, on the 30th day of August, 1841, declared their award, which is as follows:

“ Whereas, controversies have arisen between Allen Brown, executor of William Brown, dec’d., and his brothers, Matthew Brown, William Brown, Jehu Brown and John Brown, touching the settlement of the estate of their father, William Brown, dec’d.; and whereas, for putting an end to all such controversies, they, the aforesaid Allen Brown, John Brown, Matthew Brown, William Brown, jr., and Jehu Brown, by their bond, bearing date 20th August, 1841, are reciprocally bound, each to the other, in the penal sum of four thousand dollars, to stand to, abide by1-, and to perform such award and final determination, as the undersigned, Catlett Campbell, Thomas Olancj'- and Stephen Moore, arbitrators indifferently chosen by the parties, shall make in, and concerning, the premises. Now, therefore, know all men, that we, the said arbitrators, whose names are hereunto subscribed, and our *125seals affixed, having taken upon ourselves the burthen of the said award, and having fully considered the proofs and allegations of both the said parties, and that there may be a final determination of all the said matters of controversy, do award and order that the said Allen Brown, executor, &c., pay to Matthew Brown, "William Brown, John Brown and Jehu Brown, each, the sum of $244,47, .with interest from the 1st day of January, 1841, and payable from and after the 1st day of January, 1842.

“"We further award and direct that, at the death of Miss Polly Brison, a certain negro, by the name of Stephen, to be sold to the highest bidder for cash, and the proceeds of such sale to be equally divided among the five brothers, legatees of the said "William Brown, dec’d., or their representatives,” &c. .Signed and sealed by the arbitrators.

The breach alleged was, that Polly Brison was dead, and that the defendant, Allen Brown, had refused to sell the slave, Stephen, as the award required him to do, and to pay the plaintiff his fifth part of the proceeds of the sale.

It was admitted that the defendant had performed the rest of the award, by paying to each of the other parties the sum of $244,47 awarded to them.

But the defendant contended that the slave, Stephen, had been conveyed by ¥m. Brown, in his life-time, to Polly Bri-son, and by her to the defendant; and that, therefore, he constituted no part of the estate of ¥m. Brown, dec’d., and was not embraced within the terms'of the submission bond, and he produced a bill of sale from his father to the said Polly Brison, and another from the said Polly to him, the defendant, duly attested, &c., dated in 1839.

The deposition of Stephen Moore, the only survivor of the arbitrators, was offered by the plaintiff, and objected to by the defendant, but admitted by the Court; for which plaintiff excepted. The part thereof material to the issue, is as follows:

“ I did act as such (arbitrator) in the said arbitration with Catlett Campbell and Thomas Clancy, and remember the con*126troversy in regard to the boy, Stephen, said to have been conveyed by William Brown, dec’d., to Miss Polly Brison, and by her to Allen Brown. The other brothers, to wit, John, &c., (naming them,) alleged that their father, at the time he conveyed the boy to Miss Polly Brison, was too weak in mind to transact business, and that he did not, at the time, intend to convey more than a life-time estate in the said Stephen, and that they were as much entitled to said boy, at the death of Miss Polly Brison, as Allen Brown, to whom it was alleged Miss Brison had conveyed him. We examined all. the evidence brought before us with care and deliberation, both as to the dispute in regard to the said boy, as’well as to all the matters in dispute in the settlement of Allen Brown, as executor, of his father’s estate, and made an award on the whole.”

His Honor instructed the jury upon the law in favor of the plaintiff. Eor this, defendant excepted.

Verdict and judgment for the plaintiff. Appeal by defendant.

Norwood and Phillips, for plaintiff.

Graham, for defendant.

Pearson, J.

The object of the reference was to settle the estate of Wm. Brown, dec’d., and by a proper construction of the bond it extends to all matters and things for, and on account of which, the defendant was liable, as executor, and in which the parties, who were children of the testator, were interested. The negro man, Stephen, had belonged to the testator. It was contended on the one side, that he belonged to the testator at the time of his death, and constituted a part of his estate, for which the defendant was liable to account ; on the other, it was contended that he did not belong to the testator at the time of his death, but had been transferred to one Polly Brison, who had transferred him to the defendant. Here was a matter of controversy, the settlement of which was necessary in order to settle the estate of the tes*127tator, and which constituted, in fact, a part of the settlement of the estate. We concur with his Honor in the opinion that the arbitrators did not exceed their powers.

There can be no doubt that the testimony of the witness Moore, was competent. Parol evidence is not only admissible, but necessary, in order to.show what matters the arbitrators acted on. So, upon a plea of-former judgment, how can it be told whether the cause of action was the same or not, without proof as to the subject of the former trial ? There is no error.

Pjek CueiaM. Judgment affirmed.