The opinion of the Court was drawn up by
Shepley J.The referees selected by the parties, have submitted, on their report, a question of law.' It becomes necessary first to determine, what question they intended to submit. It is contended for the defendants, that they intended to submit, whether the statute, c. 52, § 26, was a legal bar to the action. Upon *119examining the report, it will be perceived, that the referees do not question, that the provisions of the statute are a legal bar, but they determined, that they were not necessarily bound to decide upon the rights of the parties according to the statute provisions. And the question, whether they had the right and power to decide contrary to the statute provisions, is clearly the only one submitted by them to this Court. They allow the defendants to submit to this Court, the question, which they made before them, whether referees selected by the parties, and to whom the whole matter in contest, including fact and law, is submitted without limitation, are bound to decide upon the rights of the parties, according to law; or whether they may decide according to their own sense of what is equitable and just.
Although there may be found cases difficult to reconcile, it is believed, that most of the English cases proceed upon the principle, that the parties are supposed to intend, that referees should decide according to law, unless it appears, that the law was intended to be submitted. When therefore there is a general reference of the whole matter, including law and fact, the award will be set aside for an erroneous decision of the law, if such erroneous decision appear on the face of the award, but will not be set aside unless it does so appear. 9 Moore, 666. Whenever it does appear that the law was intended to be submitted, the parties are left to the decision of the judges of their own selection. Chase v. Westmore, 13 East, 357; Ching v. Ching, 6 Ves. 282.
As the law has been administered in New York, Massachusetts, New Hampshire, and Maine, when the whole matter, including law and fact, is referred without restriction, it is supposed to be the intention of the parties, that the referees should decide the law as well as the fact, it having been as fully submitted to them. And the Courts have permitted this intention and their decisions to prevail ; and have held, that it is no objection to such an award, that the referees have decided contrary to law. Jackson v. Ambler, 14 Johns. R. 96; Jones v. Boston Mill Corporation, 6 Pick. 148; Greenough v. Rolfe, 4 N. H. Rep. 357; North Yarmouth v. Cumberland, 6 Greenl. 21.
It is said, that if a judgment be rendered against the executors in this case, that they will not be enabled to protect themselves, *120by obtaining a license to sell real estate, in case of a deficiency in the personal estate to satisfy it.
The rules, which the Courts have prescribed to themselves in this matter, were examined in the case of Nowell v. Bragdon, 14 Maine Rep. 320, and according to the principles there stated, the executors may be protected.
Exceptions overruled and report accepted.