In consideration of the petition for rehearing in this case we have carefully reviewed the entire record and the arguments of counsel, and have reached the conclusion that the judgment of this Court should be modified, by holding that James R. Massey took a life estate not only in the tract of four hundred and eighty-five acres, as held in the decree, but also in one-fourth of the tract of eleven hundred and sixty-six acres. Notwithstanding the intricacy of the cause, growing out of the prolonged and confused litigation and the loss of portions of the record, this result is capable of demonstration and the Court announces its conclusion without requiring reargument.
Under the will of his mother, all of the interest directly devised to James R. Massey in the entire tract of sixteen hundred and fifty-one acres, was a life interest with remainder to his children. This life interest was, (1) one-half of the whole, (2) one-fourth of the remainder. But the will provided: "On the partition and division of the lands and real estate my son, James R. Massey, is to have the right, and the power is hereby conferred on him, to take the said real estate and require that the said lands be vested in him at their appraised value on said partition — he accounting for the appraised value of said lands and real estate — this is, however, discretionary with my said son, James R. Massey, and he can act to suit himself, when called upon to decide and make his election. If my son, James R. Massey, should decide to take the lands on the partition at their appraised value, this with the value of the negroes, will far exceed his one-fourth, and put him considerably *Page 274 in debt, having to pay back largely, but he must have a long credit, say ten years, if he should desire it, with interest from the day the partition is made, in equal annual installments."
The commissioners in partition appointed by the Court made this division and valuation: Value of entire 1,651 acres, $6,996.00; value of 485 acres assigned to J.R. Massey, as one-half for life, $3,498.00; leaving 1,166 acres valued at $3,498.00.
This eleven hundred and sixty-six acres was divisible between James R. Massey and the other devisees, James R. Massey being entitled to one-fourth for life. But as directed by the clause of the will above quoted, the Court allowed James R. Massey to take the entire eleven hundred and sixty-six acres at the appraised value of thirty-four hundred and ninety-eight dollars, requiring him to secure to the other divisees their shares by bond and mortgage.Jones v. Massey, 14 S.C. 310. The amount paid or secured to be paid under this order by the Court to the other divisees was three-fourths of thirty-four hundred, ninety-eight dollars, equal to twenty-six hundred and twenty-three and 50-100 dollars. This was the full appraised value of the fee simple in the three-fourths which Massey was required to pay, and it is clear, the Court intended for him to have that which he was required to pay for, namely, a fee simple. But in as much as he took the remaining one-fourth of the eleven hundred and sixty-six acres under a direct devise of a life estate therein to him, he was not required to pay for it. There is nothing whatever in the record to indicate even an attempt or purpose of the Court to transmute his life estate in the one-fourth of the eleven hundred and sixty-six acres into a fee simple. On the contrary, the fact that the Court did not require Massey to pay or secure to the contingent remaindermen the value of the remainder in the one-fourth, after the determination of his life estate, clearly indicates the purpose of the Court not to enlarge or in any way interfere *Page 275 with the life estate of James R. Massey as to the one-fourth of this tract of eleven hundred and sixty-six acres.
The judgment of this Court, therefore, is, that James R. Massey took, in the partition under the will, a life estate in the tract of four hundred and eighty-five acres and in an undivided one-fourth of the tract of eleven hundred and sixty-six acres; and a fee simple title in an undivided three-fourths interest in the tract of eleven hundred and sixty-six acres subject to the mortgage in favor of the other divisees; and the decree heretofore filed is modified to the extent that the defendant, W. Gill Wylie, may have the privilege of purchasing three-fourths of the eleven hundred and sixty-six acres subject to the mortgage, if he so desires.