I concur in the construction given to the will of James Rembert in the opinion of Mr. Justice Jones, that his daughter, Jane Barrett, took a life estate with remainder to such persons per capita as should answer the description of heirs of her body at the time of her death. But I cannot agree that the plaintiffs are not bound by the terms of the deed for the partition of the land. Mrs. Barrett left surviving her as the heirs of her body six children, and the plaintiffs, the four children of Charles Barrett, a son who died before his mother. Under the will, therefore, the plaintiffs would be entitled to four-tenths of the land devised. The question is whether they have bound themselves by election to a different family arrangement. Obviously neither Charles Barrett in his lifetime nor the plaintiffs as his heirs were entitled to any portion of the land until the death of the life tenant, Jane Barrett. But during his lifetime and by an agreement between Mrs. Barrett and her children, which was also a mutual conveyance, all the land was actually partitioned among the children, except a tract of 168 1/2 acres, known as lot No. 5, which it was covenanted "should be held by Mrs. Jane Barrett for her life, according to the terms of James Rembert's will; and in case there should be any persons living at her death who may be heirs of her body and not parties to the said deed, and entitled to an equal share in *Page 210 said tract of land under the terms of 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 to said deed shall be paid and satisfied, or for the reimbursement of any of the parties to said deed of settlement, whose possession may be disturbed for any loss from such disturbance by such heirs not in said deed provided for, or the reimbursements of any purchasers from any of the parties to said deed who may be subjected to loss by such heirs not in said deed provided for by the partition by said deed confirmed; and further, that at the death of Mrs. Jane Barrett, and all heirs of her body not parties to said deed shall be satisfied, anything which remains of lot No. 5 shall go as directed by said will for the whole tract."
Charles Barrett died in April, 1880. Since his death the plaintiffs, together with his widow, as his heirs at law, have used and enjoyed the land set apart to him, actively claiming title to it as their own by heirship from Charles Barrett. Mrs. Jane Barrett, the life tenant, died in 1901. The eldest of the plaintiffs attained her majority in 1893 and the youngest in 1899.
The plaintiffs took the full benefit of the family settlement for some years after they attained their majority by claiming and holding the land derived from their father under it. As his heirs they were his privies, and they elected to hold the benefits which accrued to them as such heirs. These benefits came through the deed. "No rule is better established than that one cannot claim under and against a deed or will."Bailey v. Boyce, 4 Strob. Eq., 91. It is true, the brothers and sisters of Charles Barrett would not have been entitled to the land set off to him even if the plaintiffs, as his heirs, had repudiated the family settlement and given notice that they would not hold the land set apart to their father under that instrument. But Mrs. Barrett had, by the family contract, surrendered and conveyed away her life interest in the lands therein set apart to her children for the benefit of each and every one of them. The consideration paid by *Page 211 the mother for each of the children was as good and inured as much to their benefit as if each had surrendered an interest in the land set apart to Charles Barrett. This consideration paid by her to each child was sufficient to bind each of the and all who took the benefit of the consideration paid by her under or through any of them. The plaintiffs partook of the consideration by holding the land after the death of their father until the death of Mrs. Barrett, the life tenant. Having elected to take the benefits of the deed of conveyance of the life estate of their grand-mother, the plaintiffs should not be allowed to hold those benefits and after her death disavow the deed. The plaintiffs answer the description of the class of persons provided for in the family settlement who might be living at the death of Mrs. Barrett and be heirs of her body and not parties to the deed, for whom the tract of 168 1/2 acres was provided, and to this and to the land set apart to Charles Barrett, I think they should be limited.
I think the judgment of the Circuit Court should be affirmed.