| Vt. | Jan 15, 1881
This is an action of assumpsit on an award. Certain differences having arisen between the defendant, who was the administrator and one of the heirs of Sylvanus Douglass and the plaintiff and others, also heirs, a submission of all such differences to the final arbitrament and award of the Hon. Hoyt H. Wheeler was drawn up in writing and signed by the defendant, the plaintiff and all the other heirs of the said Sylvanus Douglass, on the 8th of March, 1877. The arbitrator therein named made and published his award on the 29th day of May, 1877, awarding, among other things : “ That Byron J. Douglass forthwith pay to Artemus C. Powers, out of the estate of Sylvanus Douglass in Ms hands as administrator thereof, one hundred and seventy dollars with interest thereon, from the 15th day of March, 1873, to the time of payment.” Upon this the declaration counts.
By reference to the submission and award, it will appear that the differences submitted all relate to, and concern the estate of Sylvanus Douglass and the heirs to that estate. In the submission the defendant Byron J. Douglass appears solely in the character of administrator, except that his signature is without official designation; and the award deals with him in that capacity. This action is brought against Byron J. Douglass, personally; and it is claimed upon the part of the plaintiff that he is personally liable under the award. The general ground of defense is, that the submission and award merely affect the defendant in his capacity of administrator ; and that the sum awarded to be paid by him stands substantially like a claim allowed by commissioners, and may not be recovered until after the Probate Court shall have decreed its payment.
Sections 39 and 40 of chap. 48, of the Gen. Sts., provide that disputed claims between an executor, administrator or guardian in his representative capacity and any other person, or between an executor or administrator and the estate which he represents, may be referred under an order of the Probate Court, in the manner therein prescribed ; and that the award of the referee in such cases “ made in writing, and returned to and accepted by the court, shall be final between the parties.” Had the submission in
Irrespective of any statutory enactment the parties to this submission had a perfect common-law right to do just what they did do; and in the absence of any language which can possibly be construed as indicating an intention on the part of the Legislature to abrogate or affect that right, the statute will not be construed as affecting or superseding it. Dickinson v. Dutcher, Brayt. 104; Chadbourn v. Chadbourn, 9 Allen, 173.
The submission not being made under the order of the Probate Court or under the statute, no action of that court upon the award is necessary, and the main question arises, Is the defendant personally liable upon the award ? No question is made but that the award is within the terms of the submission ; and the court below found that the defendant had sufficient funds in his hands belonging to the estate out of which the award could have been paid. In 2 Redfield on Wills, 294, it is said: “ It seems to be settled, that if the personal representative refer disputes between a creditor of the estate and the deceased, to arbitration, and in the submission stipulate, generally, to pay the amount of the award, he will be bound personally by the award. But if the award be only that the amount is due from the estate, and there be no order or finding that the personal representative shall pay the amount, he will not be liable unless he have assets, or only to that extent.”
Both of the paragraphs above quoted apply to the case at bar. Such a submission by an administrator is in law regarded as a personal undertaking to pay the sum properly awarded under it.
The judgment of the County Court is reversed, and judgment for the plaintiff for the amount awarded him by the arbitrator.