There had been a reference to state an account and report, &c.; and a report had been made, with which-neither party was satisfied. An order was then drawn up by consent, by the attorneys on both sides, reciting that it was desired -to have an additional report showing what fund of the estate still remained after deducting $2,000 due one of-the plaintiffs, and how the children of the testator stood towards each other as to the amounts received, and what. *508'each owed the other, and what each owed the administrators, and what the administrators owed each of them. “And "for the better adjustment of the matters in question, it is referred to John PI. Thorp, Esq., as arbitrator, whose award shall be rule of Court, and who shall state the accounts necessary to 'exhibit what is here required,” &c. The arbitrator made his award and reported to Court. And now the plaintiffs moves for a confirmation of the report, treating it as an award. And the defendants file exceptions to the'report, treating it as a report of a referee to state an account. And the first question is, whether said order was a mere reference as to a Clerk to state and report an account, or ■ whether it was a reference to arbitration ? There can be no "doubt about it. The order is over the signatures of the counsel on both sides, learned in the law, so called, not by courtesy, but in verity; and it would be preposterous to suppose that they did not know the difference between a simple reference to state an account, and an arbitration. And the language is emphatic, that it is referred to Thorp as an arbitrator, and his award is to be a rule of Court.
One of the exceptions of the defendants is, however, entitled to be considered, i. e., that the arbitrator exceeded his power in taking an account of the whole estate, whereas, it was contemplated that he should take only an additional account to the one already taken. But then, he was required to find what was the remainder of the fund after taking out $2,000, and that he could not do without ascertaining what was the whole amount. This exception is, therefore, overTuled. And all the other exceptions are overruled; because, "while they wrould be pertinent to a report of a referee, they are impertinent to the award of the arbitrator.
The award is confirmed, and there will be judgment accordingly.
Judgment for the plaintiffs accordingly.