The opinion of the court was delivered,
by Read, J.By the 38th section of the Act of the 29th March 1832, it is enacted that where equal partition in value cannot be made by the seven men appointed as aforesaid, or the said inquest, they shall make a just appraisement of the respective purparts or shares, in which they may divide the estate, and thereupon the court may order the said purparts or shares, successively, to the persons entitled to make choice therefrom, in the order and according to the rules enacted in the preceding section, where the estate cannot be conveniently divided (that is, to thet sons or males or their representatives first, and then to the daughters or females or their representatives, according to seniority in either sex); and they shall award that one or more purparts or shares shall be subject to the payment of such sum or sums of money as shall be necessary to equalize the value of the said purparts, according to said appraisement thereof, which sum or sums of money shall be paid or secured to be paid by the several persons accepting such purparts, in the manner prescribed in the foregoing section. The construction placed upon this section by the court in Sampson’s Appeal, 4 W. & S. 86, which was strongly commented upon in Darrah’s Appeal, 10 Barr 210, caused the Act of the 15th April 1845, which enacted that the court shall, upon the refusal of any of the heirs or parties interested to accept any part of the same, at the valuation thereof, or if after due notice they shall neglect to appear and accept the same, make a decree authorizing and requiring the executor or administrator, or other person, as the case may be, to expose such parts of the real estate, not accepted as aforesaid, to be sold agreeably to the provisions of the Act of Assembly passed the 29th March 1832.
A still further alteration was made by the 10th section of the Act of 22d April 1856, which enacted that in all cases of partition of real estate in any court, wherein any valuation shall have been made of the whole or parts thereof, the same shall be allotted to such one or more of the parties in interest, who shall, at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned, but if no higher offer be made for such real estate, or any part thereof, it shall be allotted or sold as provided by law.
In Dewart v. Purdy, 5 Casey 213, Justice Woodward pointed out what is really the distinction between the Acts of 1832 and 1856, that the former made privity of title the rule of allotment, the latter makes the highest price offered in writing above the valuation; but if there be no advance offered, the old rule prevails. In this case the heirs of the eldest son elected to take No. 2 at the valuation of $9800, whilst the second son offered in *79writing tlie price or sum of $11,300, being the highest price therefor above the valuation. To this objection was made on behalf of the heirs of the eldest son, on the ground that they were entitled to take by an agreement of November 23d 1860. It was conceded that the second son was entitled to the choice, unless barred by this agreement signed by the parties, of which he was one.
It appeared that after the report of the jury of seven men was filed and confirmed, the valuation was not satisfactory to all the heirs of the deceased, Archibald Mason: this agreement was entered into, reciting: “Whereas purpart No. 3 was valued by said inquest at the sum of ten thousand dollars, and whereas William Dilworth, Jr., and wife have agreed to take said purpart No. 3 at the sum of nine thousand five hundred dollars, which is considered a just and fair valuation of the same.”
Then it is agreed that this valuation of No. 3 shall be corrected by the court, and this valuation is fixed upon and agreed to: then follows an agreement to equalize the shares of the respective heirs, that No. 2 shall pay No. 1 $248.33, and No. 2 shall pay to No. 3 $25.83, but not one word as to the right of choice, or that the second son should not become the highest bidder.
All agreed that the valuation of No. 3 was too high, and impliedly conceded it to Mr. and Mrs. Dilworth, but there was no waiver by either of the heirs of the eldest son, or the second son. If the second son bid the highest he had the right of choosing the purpart upon which he bid. If he did not, then the choice of either part laid with the heirs of the eldest son.
This was the construction put upon the transaction by the court below, and we cannot say they were in error, and they accordingly allotted No. 1 to the heirs of the eldest son, No. 2 to the second son and highest bidder, and No. 3 to Mrs. Dilworth, and equalized the shares. To this decree there appears no such objection on the record as that the heirs of the-eldest son refused to accept allotment No. 1, but on the contrary it would seem that they acquiesced in it. If they had intended to refuse, they should have refused and asked for a sale. It is too late, under the facts of the case, to raise this objection in a court of appeal.
The operation by which 'there was an advance of $1500 on No. 2, was fpr the benefit of all, and there is no equity in the claim to take it, by the heirs of the eldest son, at a sum below its intrinsic value.
Decree affirmed at the costs of the appellants.