1851. July Term. Price V. Via's heirs. to dismiss the suit and refer the matter to five disinterested men chosen by the parties, viz.: Thomas Penn, &c., &c.; and it is agreed that these men so chosen for the purpose shall meet on the land on a day appointed by the parties; and a surveyor shall run the land according to the papers which may be produced by the parties; and after the parties have produced their evidence, and the same has been heard by the arbitrators, they shall decide to whom the land belongs in law and equity; and their judgment shall be final between the parties. And the parties agree that the costs of the suit aforesaid, and of the arbitration, shall be paid by the losing party. And the parties further agree that whereas the patent the heirs of William Via claim under seems defective in respect to the proper courses to cover the two hundred and ninety-one acres claimed in the patent, and, the said Price has laid a warrant on that part of the land which the patent seems not to cover, and contends against the said heirs of William Via for the right to said land, the parties jointly agree to leave the same matter to the aforesaid arbitrators to be decided by them, after having the same surveyed and hearing the evidence they may think proper to hear. And the parties bind themselves to abide by the award of the arbitrators, and that the expenses of the survey and the compensation to the arbitrators shall be paid by the losing party, who shall relinquish all right, title and interest in said lands, so far as to comply with the award of said arbitrators. The arbitrators proceeded to hear the case and made an award, which is as follows, viz.: We, the undersigned arbitrators, mutually chosen by Barnett W. Price, sen'r, on the one part, and the heirs of William Via deceased, on the other part, to settle all matters of difference between the parties in a certain writ of right depending in the Circuit court of Patrick county, in which the said Barnett W. Price is demand ant and the said heirs are tenants, have, after hearing all the evidence adduced by both parties, agreed unanimously that the said B. W. Price has more right to recover the land demanded by him than the said heirs have to hold it; and that he therefore recover of them the land demanded by him in his said writ as he demands it, and his costs about his suit by him expended. Given under our hands and seals this the 14th of September 1841 And the award was signed and sealed by the arbitrators. The declaration set out the submission and award as above given, and laid the breach of the covenant first. in the refusal to abide by the award as a final decision of the suit for said land, but that they had always since the rendering the award defended, and continued to defend, the said suit; to settle which the said covenants and award were made; second, in their failure to pay the costs of the suit, survey and award; and third, in their failure to relinquish all right, title and interest in the land aforesaid. The defendants appeared and craved oyer of the covenant and award, and then demurred to the declaration; and stated as causes of demurrer, that the award set out in the declaration does not correspond to the submission contained in the covenant, but varies therefrom in this, that the said award is parcel only of the things submitted to arbitrament by the covenant aforesaid. The plaintiff joined in the demurrer; and when the cause came on to be heard the court sustained the demurrer and gave a judgment for the defendants. Whereupon Price applied to this court for a supersedeas, which was awarded. Eskridge and John T. Anderson, for the appellant, and Staples, for the appellee, submitted the case. VOL. VIII.-6 1851. July Term. Price Via's 1851. July Term. Price V. Via's heirs. ALLEN, J. delivered the opinion of the court. It seems to the court here, that upon the bond of submission taken by itself and without reference to the record of the suit referred to in the condition, it does not clearly appear that both the subjects referred to the arbitrators were not involved in and embraced by the controversy pending between said parties in court, and that the plaintiff in error was not asserting in said action a title to the whole of the said tract of land of 291 acres, partly in virtue of the Ward survey, and in part under the warrant referred to. If such were the fact the award covered the whole matter referred to the arbitrators and whether such was the fact, or if not, and the latter branch of the submission was of an independent controversy not involved in the suit, whether the parties may not have waived a decision thereon, and requested the arbitrators to make their award on the subject in controversy in said suit alone, are matters which can only be shewn by proper pleadings in the cause, and which the plaintiff in error should have an opportunity of shewing by his replication to a plea of no award; and that it was not incumbent to set out such matters in his declaration; the award itself on its face purporting to be of the whole matter submitted. It is therefore considered that the judgment of the Circuit court is erroneous, and the same is reversed with costs. And this court, proceeding, &c., it seems to the court that the declaration and matters and things therein contained are sufficient for the plaintiff to have judgment. It is therefore considered that the demurrer to the declaration be overruled; and the cause is remanded to said Circuit court, with leave for the defendants to plead, and for further proceedings: Which is ordered to be certified. DANIEL, J. dissented. Lewisburg. HIGGINBOTHAM . CORNWELL. (Absent Cabell, P.) September 2d. 1. Husband during the coverture sells and conveys land with general warranty, but his wife does not join in the deed. By his will he gives his whole estate, real and personal, to his wife for her life, remainder to his children. Held: She is entitled to take under the will, and also to have her dower in the land sold. 2. That a provision for a wife in the will of her husband shall be held to be in lieu of her dower, the will must so declare in terms; or the conclusion from the provisions of the will ought to be as clear and satisfactory as if it was expressed. This was a suit instituted in the Circuit court of Monroe county on the 19th of January 1847, by Jane Higginbotham against William Cornwell. In her bill she charged that her late husband, Thomas Higginbotham, had, during their marriage, sold and conveyed to Cornwell a tract of land in the county of Monroe. That she had not united in the deed. That Thomas Higginbotham died in 1846; and she was therefore entitled to dower in said land, which she prayed might be assigned to her. With her bill she exhibited the deed to Cornwell, which bore date on the 4th of November 1807. In May 1847 Cornwell answered the bill, admitting the sale and conveyance of the land to him; but he alleged that Thomas Higginbotham had left a will, which had been duly admitted to probat, by which he bequeathed his whole estate, real and personal, to the plaintiff for her life, and at her death to his son and two daughters. That the plaintiff had accepted the 1851. July Term. 1851. July Term. ham V. Cornwell. provision made for her by the will, as she had failed to renounce that provision within a year from the testaHigginbot- tor's death: And he insisted that the provision made for her by the will was in lieu of dower. And he exhibited a copy of the will, which was presented for probat at the February term of the County court of Monroe. The provision for the plaintiff is as stated in the answer. The cause came on to be heard in October 1847, when the court dismissed the bill. Whereupon Mrs. Higginbotham applied to this court for an appeal, which was allowed. N. Harrison, for the appellant. BALDWIN, J. delivered the opinion of the court. It appears in this case from the testator's will, that after charging his estate, real and personal, with the payment of his debts, he devised the same to his wife for life, with remainder to his children. Upwards of thirty years before the making of his will, he had sold and conveyed, with general warranty, a tract of land to the appellee, but his wife did not unite in the conveyance. The sale and conveyance to the appellee are in no wise mentioned or alluded to in the will. Shortly after the testator's death, this suit was brought by the appellant to recover her dower in the land so sold and conveyed to the appellee. And the defence made by the answer is, that the widow is barred of the dower claimed by the provision made for her in the will, which was intended by the testator to be in lieu of dower of all the lands which he at any time owned; which provision it is averred she has accepted. The will of the testator and his deed of conveyance to the appellee are the whole evidence in the cause. And the question presented by the record is, whether the widow |