November 23, 1904. The opinion of the Court was delivered by Plaintiffs seek partition of a tract of land, 889 acres, formerly in Sumter now in Lee County, among the remaindermen under the will of James Rembert, deceased, admitted to probate May 11th, 1858. The second clause of the will provides: *Page 203
"Second: I will, devise and bequeath to my beloved daughter, Jane Barrett, all of that tract of land lying towards the south of my plantation, known as the Green tract of land, to and for the natural term of her life and no longer; to her sole and separate use, to be in no way subject to the debts, contracts or control of her present or any future husband; and at and immediately upon the death of my said daughter, Jane Barrett, I give, devise and bequeath the said tract of land to the heirs of her body who may be living at the time of her death, share and share alike; to their heirs and assigns forever. To be esteemed and regarded as of the value of five thousand dollars."
Jane Barrett died in April, 1901, and this action was commenced on 22d July, 1901. The plaintiffs are the children of Charles S. Barrett, who was the son of Jane Barrett, and died in April, 1880, before the death of the life tenant. The defendants are the children of Jane Barrett and those in privity with them. Partition as claimed was resisted mainly on two grounds:
1. That "heirs of the body who may be living at the time of her death, share and share alike," means children of Jane Barrett living at the time of her death, and, therefore, excludes plaintiffs, who as grand-children do not answer that description.
2. The plaintiffs, by their ratification thereof or estoppel to deny, are bound by a partition of said lands made in 1874, among the life tenant, Jane Barrett, and her children, including Charles S. Barrett, the father of plaintiffs. The Circuit Court, in a decree herewith reported, held that under this will, there being six children and four grand-children answering the description, "heirs of the body, c.," each of the four plaintiffs was entitled to one-tenth of the land, but that their right was modified by the partition of 1874, which he held plaintiffs had confirmed. It was, therefore, decreed that plaintiffs, in addition to the tracts Nos. 1 and 3, containing 106 1/2 acres, set apart to Charles S. Barrett, plaintiff's father, in said partition, should receive tract No. 5, *Page 204 containing 168 1/2 acres, which had been set apart to Jane Barrett, life tenant, in said partition agreement, which contained this stipulation: "And it is hereby further agreed by the said parties, that the said lot No. 5, assigned to Mrs. Jane Barrett, shall be held by her for her life, according to the terms of the said will, and that in case there should be any person living at her death, who may be heirs of her body and not parties to this deed, and entitled to an equal share in the said tract of land under the terms of the said will, then that said lot No. 5 shall be held as a common fund, out of which the interest of such heirs, not parties hereto, shall be paid and satisfied, or for the reimbursement of any of the parties to this deed of settlement, whose possession may be disturbed, for any loss from such disturbance by such heirs not herein provided for, or the reimbursement of any purchasers from any of the parties to this deed who may be subjected to loss by such heirs not herein provided for by the partition hereby confirmed. And it is further covenanted and agreed that at the death of the said Mrs. Jane Barrett and all heirs of her body not parties hereto shall be satisfied, anything which remains of lot No. 5 shall go as directed by the said will for the whole tract."
In reaching this conclusion the Circuit Court held that under the testimony, one acre of land was practically as good as another, and, therefore, took one acre as the unit of valuation; so that the plaintiffs under the will being entitled to four-tenths of the 889 acres or 355 acres (omitting fractions), and having received 106 acres through their father under the partition of 1874, were entitled to 249 acres; but having confirmed the partition agreement, their further recovery was limited to tract No. 5, containing 168 acres, the stipulated fund for equalization.
Both sides appeal — the plaintiffs contending that they had not confirmed the partition of 1874 and were not estopped thereby, and were each entitled to one-tenth of the whole 889 acre tract, the defendants contending that plaintiffs having ratified the partition of 1874, must be held as satisfied therewith, *Page 205 and that if entitled to any relief as "heirs of the body,c.," of Jane Barrett, they should be restricted to a partition of tract No. 5, in accordance with the terms of the will, share and share alike with defendants.
We agree with the Circuit Court in the construction of the will. The plaintiffs, as children of Charles S. Barrett, the son of Jane Barrett, their father having died before Jane Barrett, answered the description of heirs of the body of Jane Barrett, and the will expressly directing that the heirs of her body living at her death should take share and share alike, the plaintiffs take per capita and not perstirpes, and so are under the will each entitled to one-tenth of the tract of land in question. This conclusion is fully sustained by the cases of Kerngood v. Davis, 21 S.C. 206;Dukes v. Faulk, 37 S.C. 265.
We do not think that plaintiffs have done anything with reference to the partition of 1874 which should prevent the assertion now of their rights under the will. The first matter which is relied on as an estoppel against plaintiffs to assert their present claim, is that plaintiffs, with their mother, Mary L. Barrett, after the death of the father, Charles S. Barrett, continued to use the land set apart to Charles S. Barrett as his heirs at law. We see nothing in this inconsistent with plaintiff's claim under the will. Jane Barrett, the life tenant, had the absolute disposal of her life estate. In her motherly affection and unselfishness, she chose to share her life estate with her children. But the plaintiffs were in nowise parties to the partition agreement, at which time three of them were unborn and the eldest was only about two years old. The legal effect of the partition agreement or deed, so far as plaintiffs are concerned, was merely to convey the life estate of Jane Barrett to the persons designated. Plaintiffs' right to use the estate which Jane Barrett conveyed to their father and his heirs, was cast upon them by law, and as the result of Jane Barrett's generosity, not by any agency of defendants. If plaintiffs received any benefits, the benefits did not come from defendants, nor were *Page 206 defendants misled thereby, nor was any action thereby induced to defendants' prejudice. If plaintiffs on coming of age, during the life of the life-tenant, had repudiated the partition and reconveyed to Jane Barrett, no interest of defendants could have been favorable affected. We see no element of estoppel in pais in this.
It is suggested that the fact that the plaintiffs continued to occupy the lands set apart to their father on coming of age during the life of the life tenant, without some act in repudiation of the partition, was holding on to an advantage, inasmuch as it was possible that plaintiffs might (1) not survive the life tenant, and so would lose all interest in the 889 acre tract, or (2) in the event of one or more of the other children of Jane Barrett dying before her, leaving children, plaintiffs' interest might be less than what they might take under the partition. These were possible contingencies, but the conduct of plaintiffs would still not work an estoppel. The general rule of estoppel in pais is that "when one person by his statements, conduct, action, behavior, concealment, or even silence, has induced another, who has a right to rely upon these statements, etc., and who does rely upon them in good faith, to believe in the existence of the state of facts with which they are incompatible and act upon that belief, the former will not be allowed to assert, as against the latter, the existence of a different state of facts from that indicated by his statement or conduct, if the latter has so far changed his position that he would be injured thereby." 4 Am. Eng. Dec. in Eq., 258. To work an estoppel, the matter relied on must have induced the party claiming estoppel to assume a position which he otherwise would not have taken. Draffinv. Charleston C. G.R.R. Co., 34 S.C. 464; 4 Am. E. Dec. in Eq., 281. It follows that an act done after the party's position has been taken or changed, will not avail as ground for estoppel, because it cannot have been relied upon. 4 A. E. Dec. in Eq., 286. Whatever position defendants were induced to take was taken in 1874. It does not even appear that defendants have made any expenditures by way *Page 207 of improving the premises set apart to them in the partition, either before or after the plaintiffs attained their majority.
It is further contended that plaintiffs are estopped by record in the case of Mary L. Barrett and the plaintiff by their guardian ad litem against William A. James, sr., resulting in a decree adjudging Mary L. Barrett and plaintiffs here entitled to the tracts which had been set apart to Charles S. Barrett in the partition as his heirs at law, and entitled to judgment against James for rents and profits during his occupancy of said premises. It appears that on January 26th, 1876, Charles S. Barrett mortgaged the said parcels of land to Thos. J. McCutchen Co., to secure a debt of $608.44, which mortgage had been foreclosed and said parcels sold to Holmes and Durham, who afterwards conveyed to James. In 1887, the widow and children of Charles S. Barrett commenced the action against James, alleging that Holmes Durham had bought said parcels under an agreement with Charles S. Barrett to convey to Mary L. Barrett and her children, as soon as the loan for the purchase money was repaid; that said James had bought with knowledge of said agreement, and that Mary L. Barrett and her children owned said land as tenants in common, and as heirs at law of Charles S. Barrett; the decree of Judge Kershaw, dated September 15, 1887, directed James to convey said parcels of land to Mary L. Barrett, and the plaintiffs here, as heirs at law of Charles S. Barrett, and to pay them $859.68, excess of rents and profits during his possession, 1882 to 1887, over payments by him to Holmes Durham, c. In February, 1888, James made the conveyance as ordered by the Court, and plaintiffs have been in possession ever since.
That suit was not between the same parties and does not involve the same cause of action as the present suit. No right under the will was asserted in that suit. As already stated, their claim of the premises during the life of Jane Barrett, as heirs at law of Charles S. Barrett, was perfectly consistent with the present claim under the will. Judge *Page 208 Kershaw expressly refrained from expressing any opinion upon the proper construction of the will of James Rembert or the effect of the partition.
The foregoing are the only matters relied on to show any confirmation of plaintiffs of the partition or estoppel to assert rights under the will. The partition, in so far as plaintiffs are concerned, cannot be sustained on the ground that it was a family settlement, as plaintiffs had no voice therein, and their rights under the will could not be varied in such a settlement unless they were properly represented in it. Plaintiffs have been diligent in the assertion of their rights, as no cause of action accrued to them until the death of the life tenant, and they brought this action within a few months of the life tenant's death.
In the settlement of this case the Court is disposed, as far as possible consistent with plaintiffs' rights, to preserve the possession of defendants or their privies of the parcels set apart to them in said partition, as they are bound as among themselves to abide by the same. The Court, however, is not quite satisfied with the rule adopted by the Circuit Court in holding that each acre is practically as good as another, and in making one acre the unit of value, as the testimony is very meagre on that subject. We, therefore, think that each parcel as set apart in the partition of 1874 should be valued by appraisers appointed for that purpose, and that plaintiffs should first be allotted tracts 1 and 3, now occupied by them, then to the extent necessary to give them four-tenths of the value of the whole tract of 889 acres, they should be allotted from tract No. 5, containing 168 1/2 acres; then if this be still insufficient, any deficiency remaining should be made up to them by an assessment for equality of partition upon each parcel assigned to defendants in the partition, in the proportion which the value of their respective parcels bears to said deficiency, to be paid by defendants or their privies within such reasonable time as the Circuit Court may fix, and in default of such payment, plaintiff to have leave to apply to the Circuit Court for the proper relief. *Page 209 After plaintiffs shall have thus received four-tenths of the whole tract of 889 acres, the defendants shall be entitled to the parcels respectively assigned to them in said partition. If the whole tract No. 5 be not required to give plaintiffs four-tenths of the whole 889 acres, the remainder should be partitioned according to law among the defendant children of Jane Barrett.
The judgment of this Court is that the decree of the Circuit Court is modified in the particulars named, and the cause is remanded for such further proceedings as may be necessary to carry out the views above announced.