Jones vs. Payne et al. anything more than set aside or confirm the award under the statute is not a ground for equitable interference, in order to settle the whole controversy; that the submission of the controversy to arbitration, to be returned to Lee county Superior Court, does not give equity jurisdiction in that county against A, who resides in Terrell, except to set aside the award, and not for that, unless there be some reason why the statutory remedy for resisting the same be insufficient. Minors. Arbitration. Jurisdiction. Before Judge CLARK. Chambers. Lee county. September, 1869. R. L. Payne, of Lee county, Georgia, died testate, leaving a wife, three daughters and two sons. His will provided that his executors should pay his debts and then carry on his farm for the support and maintenance of his family, with power to control his property and change it as said executors saw proper. It provided that upon the marriage of his wife, or the marriage or majority of either of said children, payment should be made of his or her respective equal share, by drawing out his or her part of the perishable personalty, and receiving in cash his or her part of the value of the realty in cash; thus the first was to take one-fifth of all, the next onefourth of the remainder, the next one-third, and so on to the end. The payments of cash were to be made by the proceeds of the crops. Nothing was said as to any residuum. His wife and John R. Jones were appointed executors, and the shares of the daughters were to be free from the debts, etc., of their husbands, and Jones was made their trustee to carry out this protective provision. In December, 1857, Jones had this will probated, qualified alone as executor, and took possession of said farm and the estate. The widow married, and Jones settled with her for her fifth of the perishable personalty, and of the land. Her new husband died and she married Daniel. One of the daughters married Watts, and Jones settled with her for her fourth of the perishable personalty and of the land. In 1867, John A. Payne, one of said sons, became of age. He and Jones agreed that he, John A., as Jones' agent, should carry on the farm for 1867, for the support and maintenance of himself and his minor brother and sister, for whom it is Jones vs. Payne et al. stated, Jones was trustee and guardian. (It seems that this alludes to the fiduciary position of Jones under said will only, as it does not appear that he was ever otherwise appointed trustee or guardian.) Under this agreement, John A. Payne took possession of the farm. Jones resided in Terrell county; the other parties herein named, all resided in Lee county. John A. Payne and Daniel, in right of his wife, filed a bill against Jones, in Terrell county, for an account and settlement. Pending that bill, to-wit: in November, 1867, Jones filed a bill in Lee county, against John A. Payne, averring that he had taken possession of said farm, under said contract, for the purposes aforesaid, and had repudiated his tenancy, and was holding adversely to Jones, selling the crop, etc., and refusing to account to Jones, and because John A., was insolvent, Jones prayed injunction against such sales, and that a Receiver should take possession of the farm and crop. Judge VASON ordered John A. Payne to show cause, on the second Monday in December, 1867, why the prayer of said bill should not be granted. On the 20th of December, 1867, Jones and John A. Payne, by their respective attorneys, submitted their matters to arbitration. The submission recited the pendency of said two bills, that Jones was willing to resign his executorship and trusteeship, and ......... was willing to accept them if it could be done legally and without leaving Jones thereafter accountable therefor, and that all the parties in interest including Joseph B. and Susan A. Payne, the minor children of R. L. Payne, deceased, (to be executed by them hereafter by a guardian ad litem, to be appointed,) agreed or would agree to this submission. It submitted "all the matters in litigation involved in said bills as the question touching the removal" of said Jones, aforesaid, "to the decision, award and decree of David A. Vason," who was clothed with full power and authority "to determine upon such matters of litigation." His determination was to be put upon the minutes of Lee Superior Court, and be as final as if a decree was made in Court. Each party reserved the right to correct. VOL. XLI-3. Jones vs. Payne et al. any error of law or fact by bill of exceptions to the Supreme Court. Pending this, Jones was to retain possession of the farm, etc. If Vason found a balance due either side, fi. fa. should be stayed for a time there stated. John A Payne was to turn over to Jones the crop of 1867, and Jones was to pay him one-third of its net proceeds, and thus they settled that matter in the submission. It ended with an agreement that this submission should in all respects be under the arbitration laws of this State. This submission was signed by Jones and Payne, only, by their respective attorneys. On the 1st of January, 1868, VASON, as Judge of the Superior Court, appointed Daniel as guardian ad litem, for said minors, as to said bills and submission. And on that day, the attorney for all of said parties, made a supplemental paper, stating that all of the questions in said submission had been agreed upon by the parties, except as to the removal of Jones as aforesaid, and agreed that Vason, as sole arbitrator, should make such order or decree, as to that, as would protect all the parties, that all legal questions should be waived and that "the parties shall settle between themselves the matter of account according to the returns of said executor." On the same day, Vason accepted the resignation of Jones, and appointed John A. Payne in his stead, upon his giving bond for $15,000 00 for the faithful performance of his trust as to said minors, with right in him to settle with Jones; his receipt was to be a full discharge to Jones. He ordered these proceedings to be spread upon the minutes of Lee Superior Court, (signing them officially as Judge.) All this was done in vacation. In March, 1868, Lee Superior Court was in session, Judge Vason presiding. On the 25th of that month an order was taken, reciting the fact that such submission and award had been made, that, by the agreement of counsel for the parties, said matters of account had been submitted to Thomas M. Jones, as auditor, and that, by his report, it appeared that the estate of said deceased owed Jones, executor, $3,179 00, and that notice had been given of this application to amend said award, that said award be Jones vs. Payne et al. the judgment of said Court, and that Jones, executor, have fi. fas. against the goods of said estate with stay for half of it till January, 1869, and for the other half till January, 1870. The notice alluded to was to John A. Payne alone, and called on him to show cause on the next morning why the award "in said case" should not be amended as aforesaid. And it was "headed" by the case of Payne and Daniel against Jones, and no other. He answered, (after said order was taken,) objecting that the other parties had no notice, that there was no agreement that the finding of Thomas Jones should be part of said submission or award, that it did not appear how Thomas Jones had reached his conclusion, that he had acted upon the ex parte showing of Jones, executor, and without giving the other parties a hearing, because his balance was incorrect, and because expressly they withdrew the accounting from the submission, and that was and still stood as an open matter. He then moved to set aside said judgment because the other parties had no notice of the motion to amend, because since the judgment was made, he had filed his answer aforesaid, showing cause against it, and because it was passed when neither he nor any of the parties were represented in Court, his counsel having, without notice to him, abandoned the cause in open Court. The Court refused to set aside the motion then, but granted an order, returnable to the next term, calling on Jones to show cause why it should not be set aside. By the record, said notice to John A. Payne, his answer to said judgment, his motion to set aside and the order for Jones to show cause, were all made on the 25th of March, 1868. At the next term, (September, 1868,) Jones answered, that the judgment was final, because John A. Payne, as trustee and guardian, had notice of said amendment, was represented by counsel, and because the Court acted upon the report of Thomas Jones, who had been selected as auditor by the counsel of the parties, and who acted with notice to all the parties, because Payne had taken possession of said estate under said award and was bound by it as a totality. Afterwards, Jones vs. Payne et al. in March, 1869, Daniel and Watts, in right of their respective wives, John A. Payne for himself and "as guardian and next friend for said minors," filed their bill in Lee county against Jones, setting out the foregoing facts, averring that when Jones settled with Daniel's and Watts' wives he failed to account for cash and choses in action, etc., in his hands, as such executor; that so much of the supplemental submission as waived their legal right to compel Jones to account, was done by their attorneys, without authority; that Vason's acceptance of Jones' resignation, etc., was illegal, because done in vacation and without consent of the parties; that John A. Payne's giving bond and acting under said order ought not to conclude him or them, because he did it because of his anxiety to keep possession of the farm, and because he was ignorant of the legal consequences of so doing, he not understanding that he thereby waived the right to make Jones account for his management of said estate; if conclusive in law they said it was obtained without consideration and by reason of the undue influence exercised by Jones in his fiduciary capacity, and therefore was void, especially as against the minors. They averred that said minors were not proper parties to said submission, and were not properly before the arbitrator, and were not bound thereby, because not legally consenting thereto, the guardian ad litem, so appointed, not having power so to bind them. They averred that the order to show cause as to the amendment of the award, was served on John A. Payne when his counsel was away from Court, and was acted upon ("next day" ?) before he could get his counsel to Court, and without any notice to the other parties. They contended that the judgment was void because it did not follow the rule nisi served on Payne, in that it covered both cases, whereas the rule nisi applied only to the case in Lee in which Payne alone was interested; because no notice was served on the other parties; because it made the award the judgment of the Court, instead of simply spreading it on the minutes, subject to exceptions during the term; because the judgment was broader than the submission in so far as it gave said judgments and fi, fas. in |