Grace against Sutton, 5 Watts 540

The opinion of the Court was delivered by Sergeant, J. This is an action in which the plaintiff filed a statement claiming against the defendants Reuben York, and Reuben Sutton, administrators of Stephen Sutton, deceased, the amount of a sum awarded by referees. One of these administrators, York, and the plaintiff, by writing under their respective hands and seals, agreed to refer all matters and things between the plaintiffs and the intestate, unsettled, originating from an

article of agreement between the said parties, for the carpenter work of a brick house in the town of Franklin, to three men, who should examine the

article and work of the house, and make their report, which should be final and conclusive, against further claims, suits or conditions. The arbitrators reported for the plaintiff the sum of 462 dollars 55 cents. Two 'reasons were assigned by the defendant in arrest of judgment. 1. That a statement under the act of assembly is not authorized in this case. 2. The statement set out no cause of action against R. Sutton, or the defendants. The court arrested the judgment for the second reason.

That an executor or administrator may submit a matter in dispute between another and himself in right of his testator or intestate, is laid down by the elementary writers and seems supported by the cases. Kyd on Aw. 39; Caldwell on Arb. 14; 2 Yeates 161; Str. 1144; 1 T. R. 691; 5 T. R. 6. It is not a higher power than is constantly exercised by them of disposing of the efíects and chattels of the deceased, assenting to legacies, releasing debts and confessing judgments binding on the estate.

If the original cause of action is against the deceased, and the administrator has authority to refer, it seems to follow that the remedy ought to be against the administrator as such. Whether there would be a personal liability, where by the submission the executor or administrator binds himself to perform the award, or the referees order him to pay the sum awarded, it is unnecessary to decide, because neither of these occurs in the present case. There is a sjmple submission containing no positive engagement to fulfil it.

The award finds a sum due on the matter submitted, which was the articles of agreement with the intestate, but does not order the administrator to pay it. In Barry v. Rush, 1 R. T. 691; Worthington v. Barton, 7 T. R. 453; and Riddel v. Sutton, 5 Bingh. 200, the administrator was held to be precluded from denying that he had assets, because by the terms of the submission he had bound himself to pay or the arbitrator had ordered him to do so. But in Pearson v. Henry, 5 T.

R. 6, the defendant as administrator submitted to an arbitration, and the arbitrators awarded that a certain sum was due from the intestate’s effects, without awarding that the administrator was to pay, and it was held he might plead want of assets. This case is cited and recognized in Hoare v. Muloy, 2 Yeates 161, where it is said, a submission to a reference is no admission of assets. And. this rule seems to be consistent with justice and with the intention of the parties, in a case like the present.

To hold that such awards subjected the representative to personal responsibility, and not the estate, would go far to take away the power altogether, and compel a resort to a suit in court, when .the controversy might be adjusted by neighbours in a few hours, and the estate of the decedent put in a train of speedy settlement. We are therefore of opinion, that the proper remedy on this award, is an action against the administrator as such; That the act of one of the administrators binds the estate is not disputed.

The law now seems to be, (though anciently different,) that administrators stand on the same footing in this respect, as executors; and that the acts of any one of them, in respect to the administration of the estate, are deemed to be the acts of all, inasmuch as they have a joint and entire authority over the whole property. Toll. Ex. 359, 407; 2 Ves. 267. Beltzhoover v. Darragh, 16 Serg. & Rawle 337, 341. The objection to the statement is not sustained. A statement may be filed under the act of 21st March 1806, where the cause of action arises upon an implied promise. Thompson v. Gifford, 12 Serg. & Rawle 74.

And here there is an implied promise to pay the sum awarded. Judgment reversed, and judgment for plaintiff.