July 16, 1906. The opinion of the Court was delivered by In this action to recover the possession of land, trial by jury was waived and the cause was tried by consent before the Judge on the report of the referee. Hence all the facts must be regarded as finally resolved in favor of the plaintiff, who was adjudged entitled to recover a part of the land in question.
Reference may be had to the decree of Judge Gage, reported herewith, for the facts, so far as they appear in the record. Both parties claim under the will of Jesse Julian, which contains this provision embracing the land in dispute:
"To my beloved wife Elizabeth I give my home place that I now reside at, which tract of land containing six hundred and fifty-six acres more or less, to be reserved from sale during the natural life of my wife Elizabeth for a home and for the support of her and my children, viz: Sampson, Coppock, Sallie Ann, Miles Puckett and Louisa Rhoda, and at her death the above named tract of land to be sold by my executors and to be equally divided between my wife and children, the balance or remainder of my estate both personal and real to be sold by my executors and to be equally divided between my wife and children to share and share alike; with this provision that in view of the present crisis of our government and the pressure of the times I empower my executors to defer the sale of a part or all my estate: provided in the exercise of their judgment they may think it best for the interest of my wife and children; and further provided that they do not defer said sale longer than three years after my death." *Page 538
Judge Gage construed this will as devising the land in issue to the widow Elizabeth during her natural life and for a support for her and her children, Sampson, Miles, Louisa and Sallie, and at the death of the widow the land was directed to be sold and the proceeds directed to be equally divided between the said children. No error is assigned to this construction, but the exceptions charge error, (1) in holding that the widow could convey an estate in the lands devised; (2) in holding that Louisa had such interest therein as she could alien by deed.
It appears that a partition of the land was had among the parties interested and that the defendant Louisa Fuller accepted a deed from the widow for 218 1/2 acres described in pursuance of an agreement for partition, and that defendant conveyed said 218 1/2 acres to plaintiff. The terms of the deed, however, are not set forth in the record. The defendant having accepted the 218 1/2 acres as her share of the land and conveyed the same to plaintiff, is estopped to deny plaintiff's right to recover the same.
With respect to the 323 5-8 acre tract conveyed by the widow to plaintiff and Sampson under said partition agreement, the defendant Louisa Fuller is estopped by said partition agreement to claim any other interest in the premises than the 218 1/2 acres conveyed to her. Louisa Fuller, beingsui juris, could convey whatever interest she had in the premises, whether under the will or under an agreement of partition, and is bound thereby. She claims under no other right, and her husband, who is also defendant, claims no other right in the premises than belongs to her.
We see no ground under the exceptions to disturb the judgment of the Circuit Court, and it is, therefore, affirmed. *Page 539