¶1Item 4 of the last will and testament of Julius H. Sharpe provides: “That all the property, both real and personal, of which I may be seized, shall be appraised by three disinterested men to be chosen by my children, or a majority of them,” etc.
¶2Under the terms of the will the children of Julius H. Sharpe selected David J. White, J. O. McNairy, and R. C. Causey. Before the duties of these appraisers were completed, J. O. McNairy died. Was the appraisal made by David J. White and R. C. Causey legal? We think not. Exceptions were duly made by defendants, in apt time, to the two appraisers acting after the death of J. O. McNairy. The language of the will was that the appraisal shall be “by three disinterested men.”
¶3N. C. Code, 1935 (Michie), sec. 637, is as follows: “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.” Hall v. Artis, 186 N. C., 105; In re Estate of Wright & Wright v. Ball, 200 N. C., 620; Spence v. Granger, 207 N. C., 19.
¶4N. C. Code, supra, sec. 3219, is as follows: “The Superior Court shall appoint three disinterested commissioners to divide and apportion such real estate, or so much thereof as the court may deem best, among the several tenants in common, or joint tenants. Provided, in cases where the land to be partitioned lies in more than one county, then the court may appoint such additional commissioners as it may deem necessary from counties where the land lies other than the county where the proceedings are instituted.”
¶5We think the court must appoint three disinterested appraisers or commissioners, as set forth in the will of Julius H. Sharpe, or in accordance with the statute.
¶6*98N. C. Code, supra, sec. 3228, is as follows: “The commissioners; within a reasonable time, not exceeding sixty days after the notification of their appointment, shall make a full and ample report of their proceedings, under the hand of any two of them, specifying therein the manner of executing their trust and describing the land or parcels of land divided, and the share allotted of each tenant in severalty, with the sum or sums charged on the more valuable dividends to be paid to those of inferior value. The report shall be filed in the office of the Superior Court clerk.”
¶7Under the statute, two can make the report, but the parties whose rights are to be effected have.the right to have three disinterested parties appointed under the will or statute, so that the three can consider the questions involved.
¶8There are other serious matters controverted on the record, but we do not think they are necessary now to be considered.
¶9For the reasons given, the judgment is
¶10Reversed.