dissenting. — No doubt this is an appraisement rather than an arbitration. I will not go into the difference between an appraisement and an arbitration, or discuss the so-called revocability of such agreements, for the real difficulty here seems to me to be something else which is common to both appraisements and arbitrations.
In an ordinary case there is no way of compelling the parties to choose appraisers or arbitrators. When each *60party is to choose one, and the two so chosen are to choose a third, there is no way of compelling them to agree upon the third member. It is for this reason that the Arbitration Act of April 25, 1927, was enacted in this State and other States, under the terms of which the court may appoint an arbitrator on behalf of a party who refuses to make a choice, and also may appoint an umpire if necessary. This statute does not apply to appraisers: Matter of Fletcher, 237 N. Y. 440; Grote v. Stein et ux., 99 Pa. Superior Ct. 556.
No case cited by the majority deals with a refusal to choose an arbitrator or an appraiser. In all of them the arbitrators had been chosen and had made a finding, and the case involved an attack on the method of appraisal, or something of that sort. This was the case of Grote v. Stein et ux., supra, for example. In the litigation which included the cases of Fitzsimmons v. Lindsay, 205 Pa. 79, and Lindsay’s Estate, 210 Pa. 224, “assessors” were appointed by agreement, and the orphans’ court, with the aid of the assessors, fixed the value of the stock, and specific performance of the contract of sale was decreed at that value.
The exception to this statement is Matter of Fletcher, supra. In that case the agreement provided for a purchase at “fair value” to be determined by appraisement. The parties each chose an appraiser; but they could not agree on the third. The court below appointed a third appraiser, deriving its authority from the Arbitration Act. The Court of Appeals held that this act did not apply, and stated that there were numerous decisions that specific performance of the agreement for appraisal could not be had, though no cases were cited.
The purpose of section 9 of the Orphans’ Court Act is to give jurisdiction to the court in cases where “control” of a fiduciary is appropriate under substantive law, rather than to add to the substantive law. This executor is in no different position from that of an ordinary litigant. If we had jurisdiction to direct the *61executor to appoint an appraiser, I do not think we would have jurisdiction to compel the appraiser to agree on an umpire. One who is compelled to appoint an appraiser against his will might be of the same opinion still. All the difficulties which prevent specific performance of an appraisal agreement are present here, although a fiduciary is involved.
Performance of the appraisal agreement is not to be confused with performance of the sale agreement. It was intimated in the Fletcher case that the purchaser of the stock might have the fair value thereof fixed by the court, and might have specific performance of the agreement to sell the stock at the price so fixed. Cases are cited by counsel which seem to hold the contrary. No such claim was made at the audit, and no evidence of value was offered, so that I will not go into this question further.