This award was made under a rule of court in a pending cause, and, therefore, was not within the statute concerning awards, 1 Rev. Code, ch. 114. p. 454. Consequently, there was no fixed time within which objectjons must fiave been taken to it, and for which it must have lain, before it could be entered as the judgment of the court; and there was no error in entering it as the judgment of the court, at the term to which it was returned. But if this had been erroneous, it was a legal error, palpable on the face of the proceedings, and an appellate court of law could have corrected it. Nor was there surprize in entering this award as the judgment of the court; for it is proved that both Scott, the arbitrator who did not join in the award, and Kelly’s counsel, had notice of it; and the court sat five days after that on which the judgment was entered. The allegation, that it was airy part of the order, or the understanding of the parties, that the presence of Mr. Scott was indispensable to the making up of the award, is also clearly disproved. It is equally a rule of law and equity that the reasons for setting aside an award, must appear on the face of it, or there must be misbehaviour of the arbitrators, or. some palpable mistake. The cases to prove this are too numerous and familiar to require citation.. And nothing is considered to be apparent on the award, but what forms a part of it: no calculations, or any of the grounds of it, unless incorporated with it, or annexed to it, at the time of delivery, are to be regarded or received as reasons or grounds to avoid it. Taylor v. Nicholson, 1 Hen. & Munf. 67. In this case, there are no facts or circumstances, calculations or principles, incorporated in or annexed to the awardnothing to guide us on the subject. As to misbehaviour, it is not suggested in either of the bills; and if it had been alleged, it is wholly disproved by the facts, for I have never seen a case in which the' arbitrators seem to have been more entirely clear of par*71tiality. Upon every ground, I think the decree must be affirmed.

It is competent to an executor or administrator to submit to arbitration, any controversy concerning the estate, whether the estate claims to be a debtor or creditor. This results, necessarily, from the full dominion which the law gives him over the assets, and the full discretion which it vests in him for the settlement and liquidation of all claims due to or from the estate. And although a mere submission to arbitration will not bind the executor or administrator, personally, to pay the sum awarded out of his own estate, yet the award is binding on him in his fiduciary character, and consequently on the assets of the estate which he represents : Pearson v. Henry, 5 T. R. C. Lyle v. Rodgers, 5 Wheat. 394. And, so far as relates to debtors and.creditors, parties to the award, it is binding on legatees and distributees, in the same manner, as if the adjustment and liquidation had been made by the executor or administrator, without an award, in virtue of the general powers belonging to his fiduciary character. If, indeed, injury has been done to legatees and distributees, by an award giving too much against the estate, or too little in its favour, that injury may be redressed; but it can be done only by charging it as a devastavit by the executor or administrator, on the settlement of his accounts. I allude to cases free from fraud j for we know that fraud will vitiate every transaction. In this case, no fraud is alleged or proved: there is no misbehaviour or partiality proved in the arbitrators ; and the award, on its face, is free from objection. The decree must be affirmed.’

I concur in affirming the decree.

I am of opinion, that if there was any error in the proceedings of the arbitrators in this case, in deciding the cause without the co-operation of Mr. Scott, that error might have been corrected in the court ¡¡nuance of Kelly the administrator. The same remark applies equally to the objection, that the submission was revoked by the death of Francis Martin, or, if this objection should have been, taken by the court of law of its own mere motion, the error of omission should have been corrected by appeal. It is alleged, however, that Kelly was prevented from taking these objections before the court of law, by the return of the award without notice; and by the premature judgment of the court upon it. As to the fact, it is positively denied that the award was returned without notice ; and the notice that it was about to be made up, is clearly proved. It was made up on the 18th, and returned on the 19th June, and the counsel of Kelly was attending court, when he was informed that the award was about to be made up. It is proved, too, that notice was given to Mr. Scott on the day the award was filed, that it would presently be filed; and Mr. Scott was informed of the character of it. The judgment was rendered in open court; and, according to the accustomed practice, I can have no doubt, the party, or his counsel, was called upon to say if there was any thing to be objected to the judgment before it was rendered. Kelly himself lived some time after the judgment, declared he would not carry the litigation farther, and suffered an execution to go out, and to be returned no effects, without applying for relief to a court of equity. All the other parties in interest excepting Wheatley, seem also to have acquiesced; and I am, therefore, of opinion, that the omission of Kelly to contest the award, was not the effect of surprize, but of a willingness to acquiesce in the decision which had terminated a long and unpleasant controversy. Under these circumstances, it *73may safely be affirmed, that if Kelly were in being, he would not be received to set up, in equity, the defence against this recovery which is now advanced by Wheatley. The question then results, whether the plaintiff either in his character of surety for Kelly, as administra.tor de lords non, or as a legatee, could make this defence ? I hold that he cannot. In cither character, the award and the judgment thereupon is conclusive against the estate in favour of the creditor, unless a fraudulent collusion is charged and proved between him and the administrator. For an executor or administrator may lawfully submit to arbitration; and though he will be chargeable with a devastavit if the estate is thereby injured, yet the submission is valid; and if so, the award and judgment thereupon must be conclusive of the rights of the parties, unless It is alleged to have been obtained per fraudem. Moreover, if Kelly, who represented the estate at the date of these transactions, was concluded,—if the estate in his hands was bound by the judgment,—it cannot be conceived, that by bis death, the rights of the creditor were to ho impaired, and those of the estate enlarged. The rights of the parties cannot rest upon the accident of life or death. It were absurd to say, that the award and judgment were conclusive, provided Kelly lived, but that they were not so, in the event of his death, and the appointment of an administrator de bonis non. I am therefore of opinion, that the circuit court properly refused to set aside the award, and might with great propriety have dissolved the injunction. The decree against Kelly's administrator, in which that administrator has acquiesced, was the most favourable course that could have been taken for the plaintiff. And though it be indeed substantially against Charles Marlin's estate, yet, if upon the account that is directed, the persons concerned in the estate can shew fraud on the part of Kelly, or can even shew that the estate has sustained damage by the submission, Kelly's *74estate may be made to bear the loss. The bill, however, does not pretend to allege fraud on Kelly's part, and that must be charged, before proof of it can be admitted. Upon the whole, I concur in the opinion to afprm tpe decree.

Decree affirmed.