The claim for costs on the ground that the demand was unreasonably resisted, has been successfully defended. The circumstances shown by the defendants in opposition to this motion were abundantly sufficient to justify them in refusing to pay the plaintiff’s demand. But I think the defendants must be deemed to have refused to refer the claim, pursuant to the provisions of the statute. They were' authorized “to enter into an agreement in writing, with the claimant, to refer the matter in controversy to three disinterested persons to be approved by the surrogate,” (2 R. S. 88, § 36.) The language of this provision is not very explicit, but I think it was intended that the parties should mutually agree in writing, to refer the claim, and in case they should fail to select referees for themselves, that the selection should be made by the surrogate. It cannot be, that it is a sufficient compliance with the statute, for the executors to offer to refer the claim to three referees named by themselves. When this proposition was rejected, and it was proposed that the parties should appear before the surrogate for the purpose of having referees selected, it was the duty of the defendants to have accepted the offer. Their omission to do so, has rendered them liable for costs. The motion, therefore, must be granted.