Brown v. Brown

• Decision Date: 31 December 1856
• Citation: 4 Jones 123,49 N.C. 123
• Court: North Carolina Supreme Court
• Parties: JEHU BROWN v. ALLEN BROWN.

4 Jones (NC) 123

49 N.C. 123

JEHU BROWN

v.ALLEN BROWN.

Supreme Court of North Carolina.

December Term, 1856.

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.

THIS was an ACTION 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, Wm. 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 by, and to perform such award and final determination, as the undersigned, Catlett Campbell, Thomas Clancy 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 seals 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...