The Chancellor:
Whatever may be said of several of the questions raised and and discussed by the counsel on both sides in this cáse with so [209] much ability, there can, I think, be no reasonable doubt that the settlement between the elder Mr. Calvert, and his daughters, Mrs. Carter and Mrs. Stuart, made in the year 1836, was intended to be, and was considered on all hands, as a full and final adjustment of all the claims of the daughters against their father for, or in respect of, moneys and property which had come to his hands from the executors of their maternal grandfather. The evidence on this point, both documentary and oral, is too conclusive to be susceptible of misapprehension, and I am quite satisfied that ■ when, in 1846, it was agreed to refer to Messrs. Coxe & Bradley certain matters then in difference between Messrs. Carter and Stuart and Mr. Charles B. Calvert, as the legal representative of his father, George Calvert, then deceased, it was not the understanding of the two first named gentlemen, that the settlement of 1836, was one of the subjects to be submitted to the arbitrators. And in truth the evidence shows very clearly that Mr. Charles B. Calvert himself, regarded the settlement in question final until the execution of the arbitration bond, which, as he stated to Dr. Stuart, “he thought opened the whole question as to the first claims as well as to the last, that is, those which were due by his father before his death, and which were included in the settlement of 1836, as well as those which became due after his death.”
That Mr. Charles B. Calvert, at the time of the execution of the arbitration bond, was under the impression that the subjects of the paternal, as well as maternal, successions were to be submitted to, and would be examined by, the arbitrators; there can, therefore, be no doubt, but it is equally apparent, that he formed this impression not from any understanding, agreement or negotiation between himself and the opposite parties prior to the execution of the bonds, but from the terms of the bonds themselves, which he thought opened both questions, and required the arbitrators to re-examine and correct, if found to be erroneous, the settlement of 1836. This, of course, was the impression of Mr. Charles B. Calvert, but there is not, in my opinion, the slightest ground for supposing that the other parties to the submission entertained similar views. Certainly [210] there is nothing in the evidence of Mr. Bradley, when he speaks of the conversation between himself and Mr. Carter, which can lead us to suppose that the latter objected to the right of the arbitrators to go behind the settlement, because he had ascertained, or apprehended, that the result of a re-examination of the questions then adjusted would be disadvantageous to him. On the contrary, Mr. Bradley distinctly states, that he declined to let Carter know the result of the arbitration, though he requested him to do so. Why Mr. Carter asked the witness if they had gone into the question of .the paternal succession it is impossible to ascertain with certainty. We may speculate upon this subject as we please, but whatever his motive was, it seems to me, a constrained and unnatural conjecture to attribute his remark, that the arbitrators had no right to examine into that question to a conviction, or even an apprehension, that he could suffer by their doing so.
If, as the argument assumes, Carter consented by the submission that the accounts upon which the settlement of 1886 was made should be raveled into because he had reason to think a re-examination would result favorably to him, why should he, before the result was known, protest against the power of the arbitrators to do so ? There is nothing to show that, from the period of the submission to the date of his conversation with Mr. Bradley, any thing had come to his knowledge in reference to the probable result of a reinvestigation of the old settlement, which would induce him to retract his consent to such reinvestigation after he had once consented to it.
There is, moreover, no reason, that I can conceive, why the settlement of 1836 should be brought in question between these parties, and the matters which were then supposed, all round, to be finally adjusted, laid before these arbitrators for their examination. The settlement was certainly made under circumstances calculated to remove all doubt or suspicion of its perfect fairness.
The amount ascertained by. it to be due from the late Mr. Calvert to his daughters, was determined by an eminent legal gentleman, acting by the appointment of, and as the mutual [211] and trusted freind of the parties, and the property taken by his daughters, in full satisfaction of the claim, was appraised by mutual friends, or its value otherwise fixed, so as to ensure entire and full justice of all parties. And Mr. Carter and his wife, in pursuance of the agreement to that effect, upon receiving a conveyance of the property agreed to be taken in satisfaction of their claim, had actually released and exonerated Mr. Calvert fully and finally therefrom.
This final and full settlement of the claims of Mrs. Carter upon her father, founded upon rights under the paternal succession, was consummated by the deed of the 12th of November, 1836, in which all the necessary parties united, and from that day down to the date of the arbitration bonds on the 28th of July, 1846, no one ever thought the subject would ever again be agitated. Mr. and Mrs. Carter had been in the actual possession of the property thus convoyed in satisfaction of this claim from a period anterior to the deed, continued in possession thereafter, and Mr. Carter is now in possession thereof, claiming title thereto in virtue of rights conferred by that deed. No complaint has even to this day been heard, and the parties, father and daughter, and those who have succeeded them remained under the impression, as well they might, that this matter was closed forever.
There is a reason of great force, as it appears to me, why Mr. Carter should not have ventured to open a question which had thus been closed in the lifetime of his wife, who died in the year 1845, and who certainly died under the impression that that subject at least would never be disturbed. Mrs. Carter had by her will executed the power conferred upon her by the deed of the 12th of November, 1836, and had, in pursuance of said power, given her husband a life estate in the property embraced in said deed, with remainder in fee to her children, with power to the father to make such distribution among her children as he might think just. Now, it appears to me it would have been eminently injudicious, not to say improper, in Mr. Carter to do any act which could by possibility, in any of its consequences, affect the title of his wife to the property thus disposed of by her will. Suppose these arbitrators, Messrs. Coxe and Bradley, [212] had ascertained nothing was due Mrs. Carter on account of the paternal succession, or no more was due from the deceased, Mr. Calvert, on that account than he had paid in money, would not such an award have been calculated to shake the title conveyed by the deed of November, 1836, or at all events, would it not so far as Mr. Carter is concerned, have thrown doubts upon his title as resulting from that deed ? The reference of this question could not, to be sure, have impaired the rights of the children of Mr. Carter, who were minors and no parties to the submission, but it certainly seems to me by no means a clear proposition that if Mr. Carter had agreed to open the settlement, and that the arbitrators should re-examine the question, and they had come to the conclusion that no consideration was given for’ the deed, that his rights under it as derived from the will of his wife could not have been affected.
Certainly it is to be presumed Mr. Carter would have felt much reluctance to submit to the contingency of a new arbitration, a subject which had been thus solemnly settled in the lifetime of his wife, in the confidence of the final character of which she had made her will, and had gone to her grave.
There is moreover another reason entitled, in my judgment,, to much consideration in determining the intention of the parties to this reference. Mr. Calvert the elder died early in the year of 1838, but on the 11th day of November, 1837, he executed to his sons, Greorge H. and Charles B. Calvert, a deed of his real and personal estate in trust to secure to the grantees the sums due from him to them on account of their maternal grandfather, and also to secure his said sons and his daughters the sums which would be due them upon his death, and which he had received from their maternal grandmother. This deed was, of course, executed by the grantor, and received by the grantees, under the impression that the paternal succession of the daughters had already been accounted for and paid by Mr. Calvert, for it makes no provision for their payment in respect thereof, and it may perhaps well be doubted whether the trustees acting under that deed would have been perfectly justified in doing any act which would revive this claim or subject the [213] trust property to its payment, and yet if that claim had been submitted to tho arbitrators, and they had awarded that more was duo Mrs. Garter than she received under the settlement of 1886, it would he unjust to exclude her from the security of the property convoyed by the deed. The evidence relied upon by the defendant to show that Garter did agree, and expected that the settlement of 1886 should bo opened, I do not think sufficient to overthrow the strong presumptions and positive proof the other way. Tho proof principally relied upon is found in the paper 0. B. C., No. 3, and the evidence showing a correction by Garter of one of the items in the account written upon that paper. The account professes to he an account of moneys and property paid to, and charged against Mr. and Mrs. Carter, by George Calvert in his lifetime, commencing in June, 1888, and terminating in January, 1886. Tho charges amount in the aggregate to $40,011 92. One of the items is a charge for one hundred and sixty acres of land described as “Allen’s Purchase,” at $35 por acre, amounting to $5600. The property and money embraced in this account was tho consideration of the deed of the 12th of November, 1836, and the evidence shows that Mr. Carter corrected the account by deducting for one hundred and sixty acres at $5 per acco, thereby reducing the sum of the debits to $39,211 92, and this, it is strongly urged, is a recognition of the right of the arbitrators to ravel into and readjust the settlement of 1886, which resulted in, and was consummated by the execution of the deed of that date.
It does not appear to me, however, that this act can or ought to have the effect imputed to it. I cannot bring myself to think that if Mr. Carter had supposed that the settlement of 1836 was to he disturbed, and tho arbitrators were to enter into an examination of the accounts upon which it was founded, that he would have contented himself with simply correcting a single item in the account. The account which was furnished by tho defendant does not give the credits. It is simply a statement of the charges made by the late Mr. George Calvert against Mr. Charles H. Carter and his wife, and it is extremely difficult to conceive that if the latter gentleman had supposed that the [214] old settlement was to be ripped up, and the whole question reexamined, he would have been satisfied with correcting a single-item in the statement of charges. He did not know, nor could he have known, what evidence was before the arbitrators, or upon what grounds they would proceed in determining the indebtedness of Mr. Calvert, growing out of the paternal succession of his wife, and when we consider how vitally important the question was to him and his children, it requires no little amount of credulity to believe that he would have made no inquiry upon the subject, but have left the arbitrators to decide the whole matter upon evidence of which he was entirely ignorant.
But it is insisted upon the part of the defendant, Mr. Charles B. Calvert, that by the express terms of the submission in this case, the paternal as well as the maternal succession of Mrs. Carter was referred to the arbitrators, and that all reasoning upon the subject founded upon probabilities and conjecture is unavailing. The agreement to submit, is to be found in bonds interchangeably executed and delivered by the parties each to the other. The bonds recite that “whereas the said Charles H. Carter and ft. H. Stuart, in right of their respective wives, daughters of George Calvert and Rosalie Eugenia Calvert, deceased, and the children of the said Charles H. Carter, by virtue of the last will and testament of their mother, claim to be entitled to certain portions of the estates of the said George Calvert and Rosalie Eugenia Calvert, and of the father, aunt, and other relations and ancestors of the said Rosalie Eugenia, which estates have come to the.hands of the said Charles B. Calvert, as the legal, represensative of his said father,' George Calvert, deceased, and whereas the said parties have mutually agreed that all the differences between and among them, and all said claims as aforesaid, shall be left to the friendly arbitrament and decision, according to the principles of law and equity, of persons mutually to be chosen by them in order to avoid litigation,” .&c., and the parties, in the penalty of thirty thousand dollars,bind themselves respectively each to the other to abide by and perform the award of the arbitrators.
It is urged here that the terms “father, aunt, and other rela[215] tions and ancestors of the said Rosalie Eugenia,” who was the mother of Mrs. Garter, the right is expressly conferred upon the arbitrators to adjudicate both the paternal and maternal successions, and this presents, as it seems to mo, the only difficulty in the ease.
It is contended that if the paternal succession was not intended to bo submitted, why was the word “father” introduced in the contract, and there would be groat difficulty in answering this argument if there was no subject upon which that term could operate but that portion of the paternal succession which had been settled in the year 1836. But Mr. George Calvert lived until the year 1838, and it may have happened, or at any rate it might have been supposed that some portion of the paternal succession of his deceased wife came to his hands between the time of the settlement and Ms death.
There is no evidence upon the subject either way, but there is certainly nothing very unreasonable in supposing that the parties to the submission designed to provide for such a contingency. At all events, I think that hypothesis is quite as reasonable as the supposition that the parties should have intended in 1846 to overturn a settlement made in 1836, against which no whisper of complaint was ever heard from any quarter, and which had been carried into full and complete execution by the most formal and solemn instruments known to the law. That settlement unquestionably was not a matter of difference between the parties, and it was only the matters in difference which were designed to he submitted, in order that litigation among members of the same family might be avoided. I am, therefore, of opinion that the arbitrators transcended their power in disturbing the settlement of 1836, and that their award for that reason is no bar to the relief prayed by the bill.
There is, moreover, another objection to this award, which may be and has been taken in this case, and which, in my judgment, is insuperable. The objection is not that the arbitrators proceeded irregularly or improperly in not giving notice to the parties of the times and places of their meeting, which, perhaps, though a ground for setting aside the award in a proper pro[216] ceeding for the purpose, does not render it void. Watson on Awards, 119,120. The objection referred to is, that the award does not make a final end and determination of all the matters Submitted, and is, therefore, not binding upon the parties.
The arbitrators first find that at the death of George Calvert on the 28th of January, 1838, there was due from him to Rosalie Carter, wife of Charles H. Carter, the aggregate gross sum of $8039 51, and to Julia Stuart, wife of R. H. Stuart, the gross sum of $7426 69, and they further find “that payments .to a considerable amount have been made by the said Charles B. Calvert to the said Charles H. Carter and R. H. Stuart, respectively, on account of the several and respective sums of $8039 51, and $7426 69, since the death of the said George Calvert, for which he is entitled to a credit thereon. ’ ’ And they further award, “that a fair account be taken between the said parties of the balance due, if any, on account of the said respective sums of money, so far as aforesaid due by the said George Calvert at the time of his death, and that the same be paid forthwith to the said Charles EL and R. H. respectively.”
The amount, therefore, to be paid by Mr. Charles B. Calvert, was to depend upon the result of an account to be taken thereafter ; by whom, and within what time, and upon what principles, is not stated. But a reservation of a future power by the arbitrators in their award, if it affect the whole of the award, will render the award totally void. This is the case even if the reserved power is to be exercised by the arbitrators themselves, as is conclusively shown in the cases referred to in Watson on Awards, pages 104 to 108, because the award itself should close up all the matters submitted, leaving nothing open to be settled by matter subsequent. This award, however, is more obnoxious to objection, because it does not appear by whom the account is to be taken, nor within what time, nor upon what principle. In fact, the great object of the parties, which was to ascertain the amounts due by a friendly reference of the matters in difference between them to mutual friends is defeated if, notwithstanding the award, an account is to be taken. It is no answer, as it seems to me, to say that there was no dispute [217] in fact between the parties in regard to the payments made by Mr. Charles B. Calvert to his brothers-in-law after the death of his father. That does not appear upon the face of the award itself, nor by reference to any documents or schedule appended to it, or in any way made a part of it. If the award had referred to the paper marked C. B. C., No. 4, and had directed the payments there mentioned to be credited against the sum awarded, so that the result would have depended upon a mere arithmetical calculation, the case might have been different, because that perhaps would have been reserving a mere ministerial and not a judicial question, and thus brought it within that class of cases referred to in Watson on Awards, 105,106. But to take an account was certainly not to perform a mere ministerial act. It was, in fact, the very thing the arbitrators themselves were to do, and which the parties to the submission preferred to have done by them than by a resort to the ordinary judicial tribunals.
This is an objection which I think is fatal to the award, renders it totally void, and which, consequently, removes it from the way of the plaintiff in this case.
The only remaining question which I deem it proper in this case to notice, relates to the claim of the plaintiff to a portion of the damages paid by the Bailroad Company for the light of way through certain lands. It appears by an extract from the deed executed by George Calvert, deceased, to the Baltimore and Ohio Bailroad Company, dated the 4th of March, 1884, (which it is agreed shall be taken in lieu of the whole deed,) that for the consideration of eleven thousand dollars he conveyed to the Company all his interest, both at law and in equity, in and to two parcels of land as therein described, for the sole purpose, as expressed in the deed, of the passage and construction of the road through said lands, which lands, as appears by an agreement filed on the 17th instant, belonged in part to the children of Mrs. Calvert, and in part to George Calvert, the grantor, and the question raised is, whether the children of Mrs. Calvert, of whom the complainant’s wife was one, are entitled, as against the representatives of George Calvert, to re[218] cover any portion of the money so paid to him by the Company, and if so, the agreement shows the proportion, or gives the data by which the amount may be ascertained.
J. M. Campbell and 11. Johnson, for Complainants.
Thomas S. Alexander, for Defendants.
[The parties not being able to make any agreement as indicated in the opinion, the Chancellor subsequently passed an order referring the cause to the Auditor to state the account as above decided. From this order the defendants appealed, and this appeal is still pending.]
My opinion is, that there can be no recovery against the representatives of Mr. George Calvert in respect of this money. Whatever may have been the intention and purpose of the parties to the deed, it is very certain that Mr. Calvert could only convey to the Company his own title to the land, and the deed, in fact, professes to convey nothing more. It does not attempt to convey the title of his children, and if it did, the materials are not before me by which I could confirm the contract, considering it a contract made for or on behalf of infants, and ■embraced within the provisions of the twelfth section of the act of 1785, ch. 72, which authorizes the court to confirm contracts made for or on behalf of infants, when, upon examination of ■all the circumstances, it shall appear for their interest and advantage to do so.
It will become necessary, I presume, to send the case to the Auditor, to state an account ascertaining the amount due from the defendant, Mr. Charles B. Calvert, as the legal representative of his father, or from him and his co-trustee, George EL Calvert, on account of the estate of the maternal grandmother of the deceased, Mrs. Carter, but as I understood in the course of the argument that some agreement would probably be made which would facilitate the account, I will not at this time pass an order.
The bill does not raise the question, and I do not propose at this time to express any opinion in reference to the trust created by the marriage settlement of the 13th of January, 1832.