¶1 dissenting. It is unnecessary to discuss in detail the evidence in this case as it is sufficiently set forth in the majority opinion.
¶2*366 By agreement entered into between complainant and respondent, all the land of the late John P. Barney was to be divided between the parties. Arbitrators were appointed for this purpose and, after inspecting said land, they awarded certain parcels thereof to the complainant and the remaining property, the farm of said Barney, to the respondent. Before drawing of deeds, however, the parties agreed to reverse these first awards so that the lands awarded to each by the arbitrators were exchanged thereby giving said farm to the complainant.
¶3 A certain portion of this farm, 14 acres largely consisting of gravel-land, lies over the boundary line in the Commonwealth of Massachusetts although, so far as appears, it is' untaxed by that state and was considered of little value. The complainant testified that she supposed she was allotted that tract when awarded said “farm”; and there is nothing in the record which shows that she had any information to the contrary. The respondent was the only party interested who knew that the land in dispute was in Massachusetts and for that reason was not described in the deed of the farm to the complainant.
¶4 In my opinion there is no description in the deeds of those parcels of land allotted to the respondent which can by any construction be made to refer to the 14 acres in dispute. It was when the gravel on this comparatively small tract became saleable that rights in the same became valuable and respondent claimed an interest therein on the ground that this land was not described in the deed to the complainant.
¶5 It seems to me to be a clear case of mutual mistake. The arbitrators were directed to apportion all the land of the estate. In making such allotment it would have been unreasonable to separate from the farm property so small and at that time practically valueless a portion physically attached to and naturally a part of the same. But it appears that they did not so divide the farm but by mistake failed to allot to either of the parties the 14 acres in dispute, although they intended so to do, since their instructions were to allot the *367 entire property. Since the parties accepted their award at the time, beyond a doubt it was, regardless of failure to include the 14 acres, a mutual mistake. Therefore the relief prayed for should be granted and the decree appealed from should be reversed.