Wood v. Treleven

• Decision Date: 15 October 1889
• Citation: 43 N.W. 488,74 Wis. 577
• Parties: WOOD v. TRELEVEN.
• Court: Wisconsin Supreme Court

74 Wis. 577

43 N.W. 488

WOOD

v.TRELEVEN.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Fond du Lac county.

Action by Emma Wood, an heir to the estate of T. J. Wood, deceased, against D. D. Treleven, executor of said estate, to have the account of said executor disallowed. Judgment for plaintiff. Defendant appeals.Edward W. Phelps, ( Elihu Colman, of counsel,) for appellant.

Kate Pier, for respondent.

COLE, C. J.

The real question in this case is, was the claim against the United States for damages by reason of the flowage of land submitted to and passed upon by the arbitrators? The submission was of all actions, cause and causes of action, suits, controversies, claims, and demands whatsoever pending and existing between the parties. The submission is surely broad enough in its terms to include every controversy or demand existing between the representative of the estate of Thomas J. Wood, and the widow and heir of that estate. The submission recites that controversies existed between these parties in relation to divers subjects, as we understand, growing out of the settlement of that estate; that is, as we suppose, there was a dispute as to the indebtedness, or the extent of the indebtedness, of the executor. The parties agreed to submit the matters in dispute to the decision of arbitrators. No mention is made of any particular controversy, claim, or demand, but all controversies and demands of every nature were submitted. The presumption is that the arbitrators considered every matter submitted, and made an award in respect to it. They made a general award, determining all matters and controversies in dispute arising from the settlementof the estate. The executor was to pay the fees of the arbitrators, and also pay a specified sum of money to Mrs. Wood and the daughter. He was also to convey to Mrs. Wood the two lots named; or, if she elected, to pay her $300, instead of conveying the lots. Now, upon these facts, the presumption is irresistible that the award included everything, and determined the liability of the executor, or the extent of his liability arising from the settlement of the estate. This is the necessary presumption or inference to be drawn from the submission and award. The rule is that every reasonable presumption will be made for the purpose of upholding the validity of an award, so as to give effect to it, and accomplish the ends of justice. Morse, Arb. 411; Russ. Arb. 264-688; Bancroft v. Grover, 23 Wis. 463;Call v. Ballard, 65 Wis. 187, 26 N. W. Rep. 547. This presumption, arising from the face of the award itself, that the claim for damages was submitted, is strengthened by the parol evidence given relating to that point, and the probabilities of the case. The executor himself swears that the claim was submitted to the arbitrators. The arbitrator Bartlett says that the claim was considered by the arbitrators in...