The opinion of the court was delivered by

In June, 1881, Joel 0. Betsill *514departed this life intestate, and in November thereafter, his children, the plaintiff and defendants, being his distributees and all of full age, entered into a written agreement, whereby they- appointed three arbitrators or distributors to make distribution of the estate among said distributees, as follows: “Whereas, we are all of lawful age, and capable of looking to our own interest, and are desirous (as far as practicable) of carrying out the often expressed desire of our said parent, with regard to dividing his estate without recourse to law : Now, therefore, be it known that we, the children, sons and daughters of said deceased, do hereby agree that W- Simpson Gregory, Robert F. Ray, and G. Sanford Gregory, all disinterested neighbors, shall have full power and authority to make an inventory and appraisement of the whole estate, to take into account the portion each one has already had, and to divide and allot to each one such portions of the real estate, &c., and by all means at their command, to make an equitable and fair distribution of the estate, so that all the distributees shall have equal and equitable shares,” &c., &c. The arbitrators were to decide and settle all questions arising among the parties; and the agreement provided a forfeit of $500, to be paid by any party failing to abide the decision and written award of the arbitrators. (See copy in Brief.)

The arbitrators named undertook the duties assigned them, and on December 15, 1881, announced their decision to the distributees. Upon the announcement, the plaintiff was dissatisfied, and gave notice that he would pay the forfeit rather than take the land “allotted” to him at the price placed upon it. The defendants were unwilling to exact the forfeiture, and it was agreed that the arbitrators should again carefully examine and appraise the same. They did so, and on February 2,1882, made their award in writing, which is also in the Brief. Upon the final award being made (dune, 1882), the distributees interchanged deeds among themselves, and the plaintiff signed “some, if not all, of the deeds.” In assessing the amounts to be paid fo.r equality, the arbitrators' assigned to the defendant, Robert J. Betsill (who received no land), the amount due by the plaintiff, viz., $750.78. The plaintiff neglected to pay the same, and in September, 1884, Robert brought suit upon the submission and award, and at October term, *5151884, obtained a judgment by default against the plaintiff thereon for $896.32 and costs, and on salesday in December, 1884, the tract assigned to the plaintiff was sold under said judgment, and purchased by the said Robert, who received sheriff’s titles therefor.

This action was brought by William T. Betsill against the other distributees on April 27, 1888. Among other things, the complaint (7th paragraph) alleges,- “that the said valuation (of the tract assigned to the plaintiff) was too high, and otherwise erroneous, in this, that it did not express the joint or several opinion of the three arbitrators, inasmuch as G. S. Gregory never at any time knew that it was the intention of the said Joel Betsill (the intestate) that said land should be valued and assigned to William T. Betsill without the buildings; and when he gave his consent to the said valuation of six and one-fourth dollars per acre, he consented to such valuation and the award of $750.25 to R. J. Betsill as including the buildings on said land; otherwise he would not have consented to the said valuation and award. That, furthermore, the said Robert F. Ray (another arbitrator) never at any time was aware that it was the duty of the said arbitrators in the premises to assign lands to the individual heirs at law of the said Joel Betsill, but supposed that their duty and labors ended when the valuation thereof had been made, and that in any act done by him beyond said valuation, he acted under a misconception of his duties in the premises,” &c.; and upon these allegations chiefly prayed the court “to set aside the said arbitration, and all the proceedings had by said arbitrators be adjudged null and void; and that the judgment against himself be set aside and the sale of the land under it declared null,” &c.

The defendants answered, and at the trial interposed an oral demurrer, that the complaint did not state facts sufficient to constitute a cause of action, and the demurrer was sustained. (The whole complaint should be reported.) From the order dismissing the complaint, the plaintiff appeals upon the following grounds:

“I. For that his honor erred in deciding that exhibit A of the complaint [the agreement of submission] embraced all the matter that could be submitted to the arbitrators for their consideration, and that the verbal instructions of Joel Betsill, alleged in the complaint in relation to the division of his estate, and especially *516to the valuation of the place where his son William resided without the buildings, and its assignment to him, were badly pleaded.

“II. For that his honor erred in deciding that the verbal instructions of Joel Betsill, in regard to the valuation of the place where his son William resided, were badly pleaded, and could not have been proved, inasmuch as they varied exhibit A of the complaint.

“III. For that his honor erred in not deciding that when the arbitrators amended their first award sometime prior to February, 1882 (and referred to in the award of February, 1882), their power was exhausted, and they had no right to make another, or to do anything else in regard to the matter.

“IV. For that his honor erred in not deciding that, after making the second award, they did not act under the compact embraced in exhibit A of the complaint, but upon a verbal agreement of only a part of the heirs, and that the verbal instructions of Joel Betsill in regard to the valuation of the place where his son William resided, and its assignment to him, could have been introduced in evidence.

“V. For that his honor erred in deciding that all the heirs agreed that the arbitrators make a second award.

“VI. For that his honor erred in deciding that there was an arbitration, when there was no matter in dispute.

“VII. For that his honor erred in deciding that William T. Betsill ratified the action of the arbitrators, after the first award, by ‘signing some, if not all, the deeds,’ which were interchanged among the heirs of Joel Betsill.

“VIII. For that his honor erred in sustaining the oral demurrer interposed by the defendants.

“IX. For that his honor erred in deciding that allegations in regard to the newly discovered evidence relating to the judgment by default were not properly made, and did not allege enough.”

We think there was only one award. The agreement required that each and all of the “parties should stand to, abide by, and carry out the decisions and written award of the said arbitrators or distributors.” There is no allegation that the tentative conclusion announced December 15, 1881, was in writing. Indeed, the award was not perfected and finally signed and sealed by the *517arbitrators until June 15, 1882. Besides the arbitrators or referees consenting to review their conclusion as to the value of the land — to “carefully examine and appraise” the tract “allotted” to the plaintiff, and it does not lie in his mouth to claim that there were two awards.

The demurrer did not have the effect of admitting as true the allegations of the complaint as to the alleged wishes of the intestate, expressed verbally in his life-time, for several reasons : First, the agreement of submission necessarily contained all the matters referred, and beyond that, neither the plaintiff nor the referees had any authority to go — it was their commission ; and, second, from the character of the verbal declarations of the intestate they were not well pleaded. Every man has the right to make a will, which may express what he desires done with his property after his death ; provided he conforms to the formalities required by law; that is to say, such wishes must be expressed in writing, and signed by the testator himself in the presence of three witnesses. If, however, he does not desire to make a will, but prefers to die intestate, he cannot control as to the valuation or distribution of his property by merely verbal declarations in his life-time of his wishes upon the subject. He has the right to die testate or intestate; but if the latter, the law directs as to the valuation and distribution of his property, without regard to any wishes of the intestate not put in the form of a will. As Chancellor Johnston, in Youngblood v. Norton, 1 Strob. Eq., 128, said:

“Any act by which a decedent exercises a control in the disposition or distribution of property belonging to him at his death is, essentially, a testamentary act, and requires the formalities of a will. In the absence of a testamentary disposition, the statute controls the disposition of the property as intestate property; and it is not competent for a party to give any other direction than the statute gives, unless by a will he deprives the property itself of the character of intestacy, in virtue of which the statute assumes the disposal of it,” &c.

But if the verbal statement of the wishes of the intestate were admissible to control the valuation of the tract assigned to the plaintiff, still we do not think that the allegations of the complaint as to subsequently discovered testimony were sufficient to set aside *518the award and the judgment by default rendered upon it. The complaint states that the plaintiff did consent to the valuation of the land assigned to him, and-acquiesced in the same, until subsequently he discovered two facts, neither of which, nor both together, as we think, were sufficient to open the award and set aside the judgment and sale of the land based upon it. First, it is stated that plaintiff subsequently discovered that one of the arbitrators, Robert F. Ray, “never was aware that it was the duty of the arbitrators to assign lands to the heirs, but he supposed that their duty and labors ended when the valuation thereof had been made.” The agreement of submission itself declared that the “shares were to be allotted by the arbitrators, or a majority of them.” But suppose the arbitrator did not understand “allot” to mean the same thing as “assign,” the plaintiff, never complained of the allotment of the tract of land, but only as to the valuation placed on it.

The second fact claimed to have been subsequently discovered was that another arbitrator, G. S. Gregory, “never, at any time, knew it was the intention of Joel Betsill (the intestate) that said land should be valued and assigned to William T. Betsill without the buildings, and when he gave his consent to the said valuation of six and a quarter dollars per acre, he consented to said valuation as including the buildings,” &c. Suppose this to be so. There is no allegation of the same kind as to the other two arbitrators ; and, as we have seen, the allotment could be made by the arbitrators, “or a majority of them.” It seems to us that it would require much stronger allegations and proof than this case affords to set aside an award or distribution and a judgment based upon it, after it had been accepted and acquiesced in for six years.

• The judgment of this court is, that the judgment of the Circuit Court be affirmed.