
    Miller against Moore.
    
      June.
    
    In Error.
    An award by arbitrators appointed by the agreement of some of the children of an intestate and the husbands of some others, directing one of the parties to the submission to take the land of the intestate at the appraisement, and to pay a certain sum to the children of the intestate, is bad, firát because it cannot vest the land in such party without a conveyance, which is hot directed; secondly because the husbands submitted without their wives'.
    ERROR to the Court of Common Pleas of Union county.
    
      This was an action upon an award. William Moore the defendant was a spn of William Moore, deceased, and Samuel Miller, the plaintiff, was the husband of Francés, one of the daughters of the said William Moore, deceased. ■ Both plaintiff and defendant, together with one John Wilson, James Backhouse, John Covert, Isabella Moore, and James Moore, bound themselves to each other respectively, in the sum of 500 dollars penalty, on condition “ to stand to the verdict, agreed on by á number of auditors, chosen by, said parties, to settle the estate of William Moore,- deceased.” John Wilson, James Backhouse, and John Covert, were the husbands of daughters of the said William Moore, deceased. There were other children of the said William Moore, who did not sign the agreement of arbitration. The arbitrators awarded, “ that William Moore, is indebted to the heirs of William Moore, deceased, 657 pounds, 18 shillings, and 10 pence. William is to take the land at the appraisement; that is to'say, at 3 pounds, 14> shillings, per acre ; the one-third to be paid against the first day of May next; the next third to be retained in the hands of William Moore or his successor, with him paying the interest during the widow’s life ; at her death the gale then retained, is to be paid, and equally divided amongst the heirs; likewise the widow is to receive the interest of the first gale. Said Moore is to give' sufficient security for the performance of the above articles. Given under our hands and seals this 18th day oí March, 18,00.” Samuel Miller, the plaintiff in this suit, demanded one-eighth part of the whole sum, awarded against the defendant, being the portion to which ' he was entitled in right of' his wife ' Frances, The Court of Common Pleas charged the jury, that the action could hot be supported, and the plaintiff tendered a bill of exceptions. The jury found a verdict for the defendant. .
   The opinion of the Court was delivered by

Tilghman, C. J.

The Court of Common Pleas was of opinion, that the action could not be supported: This depends on the validity of the award. The question is then, whether the award be good, or not. It was no doubt the intention of the parties, to procure a partition of the estate of William Moore, deceased, by arbitration, instead of. going into She Orphans’ Court. But they have been unfortunate in their pían. The Orphans’ Court would have had power to vest the iegai estate of the land in William Moore, the defendant, without any conveyance from the other heirs, taking security from him, to pay the .others their respective portions, in the manner prescribed by the Act of Assembly in such case provided. But arbitrators had nq such power. The defendant cannot obtain the legal estate, without a conveyance from the others. But this award directs no. conveyance. Therefore it is neither mutual, nor final. The defendant is, to pay for his father’s land, without getting á title to it. Besides, the submission to these arbitrators, is not made by all the proper parties. The husbands have submitted, without their wives. The wives therefore are not bound. So thát'if the defendant were to páy the husbands, the title of their wives to their father’s land would not be extinguished. The award is radically bad. It is impossible to support it. This Court is therefore of opinion, that the judgment oF the Court of Common Pleas should be affirmed.

Judgment affirmed.  