Definition
A contractual or testamentary formula, most commonly appearing in leases and wills, directing that property be valued by two impartial persons selected by the parties, with a third neutral appointed to resolve disagreement between them if necessary. The phrase functions as a built-in appraisal mechanism: each party typically chooses one appraiser, and should the two fail to agree on a valuation, they jointly select a tiebreaker. The word "indifferent" carries its historic legal sense of disinterested or unbiased — not the modern colloquial sense of unconcerned or apathetic.
The formula appears in two primary contexts:
1. IN A LEASE: A rent-review or renewal clause directing that the value of the leasehold interest, improvements, or rent adjustment be determined by two disinterested appraisers chosen by the respective parties, with a third selected by those two in the event of disagreement.
2. IN A WILL: A testamentary direction that estate property — or a defined share of it, such as half the estate — be appraised at its money value by two impartial persons, establishing a basis for distribution or equalization among beneficiaries.
Common Language
Modern common usage (Wiktionary): "Indifferent" commonly means having no particular interest or concern; neutral in the sense of not caring either way.
Historical common usage (Webster's 1913): "Neither particularly good, bad, favorable, unfavorable, etc.; without distinction; of a middling or medium quality; passable; mediocre." Also: "Not inclined to one side, party, or choice more than another; neutral; impartial."
The gap here is material. In modern speech, calling someone "indifferent" implies disengagement or lack of investment. In legal usage — both historical and continuing — "indifferent" means specifically disinterested in the outcome: having no stake in either party's position. A researcher encountering this phrase in an eighteenth- or nineteenth-century document should read "indifferent" as a term of art meaning impartial, not as a commentary on the appraiser's level of care or competence.
Common Confusion
Do not conflate "appraised by two persons indifferent" with arbitration. Though both involve third-party determination of value or rights, the appraisal formula here is narrower: it resolves a specific factual question (monetary value) rather than a legal dispute. The two-appraiser-plus-tiebreaker structure also differs from standard arbitration panels, which typically convene to hear argument and issue a binding award on contested legal claims. Historically, courts sometimes blurred this line, but the mechanisms are formally distinct.
Why It Matters in Research
This phrase is a formula, not a common-law doctrine. Researchers encountering it should treat it as a drafting artifact whose meaning is determined by the instrument in which it appears — the lease or will — rather than by any independent body of case law governing the term itself.
Several traps arise in historical sources. First, the word "indifferent" will consistently mislead researchers applying modern dictionary definitions; the historical legal meaning of disinterestedness controls. Second, the formula's mechanics — two party-appointed appraisers, with a tiebreaker chosen by the appraisers themselves — vary slightly across instruments, and courts occasionally had to interpret exactly who selects the third person and what authority that person holds. The Rapalje & Lawrence citation to 2 Johns. Ch. 351 points to New York Chancery, indicating that disputes over this formula were sometimes resolved in equity rather than at law, suggesting courts treated the mechanism as a matter of specific performance or enforcement of an agreed valuation process.
Third, the companion phrase APPRAISED IN MONEY appearing in the same Rapalje & Lawrence entry (citing 2 Root (Conn.) 271) is closely related: it addresses what standard of valuation applies (monetary, not in-kind), and researchers working with estate distribution problems should consider both phrases together when interpreting testamentary appraisal clauses.
Finally, because this formula appeared in standard lease and will drafting across multiple jurisdictions in the eighteenth and nineteenth centuries, its interpretation may vary by state. New York Chancery cases and Connecticut Supreme Court of Errors cases are not necessarily consistent with each other on the mechanics of enforcement.
Historical Dictionary Support
Rapalje & Lawrence is the only shelf source covering this term, and its entry is characteristically compressed — a fragment of a definition rather than a full exposition. The entry defines the phrase in a lease context as valuation "by two persons indifferently chosen by the parties, and in case of their disagreement, by a third person to be chosen by the two," citing 2 Johns. (N.Y.) Ch. 351. It separately addresses APPRAISED IN MONEY in the testamentary context, citing 2 Root (Conn.) 271.
What the historical dictionaries miss entirely is any treatment of enforcement mechanics — what happens when a party refuses to participate in appraiser selection, whether the resulting figure is binding or merely advisory, and how courts characterized the process when it broke down. Researchers needing that analytical depth must proceed directly to the cited cases and to period treatises on leases and executors' duties.
Jurisdictional Note
The cited authorities are New York and Connecticut. The formula appeared broadly across American jurisdictions in the eighteenth and nineteenth centuries, but its enforcement — particularly in equity — may reflect local procedural rules. Researchers working outside New York and New England should verify that courts in the relevant jurisdiction treated comparable appraisal clauses similarly.