The opinion of the Court was delivered by
Willard, A. J.The main question to be considered arises in a provision of the will of Mrs. Elizabeth Massey, as follows : “On the partition and division of the lands and real estate, my son, James R. Massey, is to have the right, and 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 such 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 own fourth, and put him considerably 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 instalments.”
A suit for partition was brought, a writ of partition issued, and a return made, among other things appraising the value of the lands of which partition was sought.
The appellant claims that upon the coming in of this return he was entitled to his election to take the lands at the value fixed upon them by the appraisal. The right was denied by the Circuit judgment.
The judgment is not consistent with itself. It does not in terms deny the right of James R. Massey to take the lands at the appraised value, but, on the contrary, says: “It appearing that the defendant, James R. Massey, has been in possession of all of said real estate since 1859, it would be impossible that this Court should now permit him to purchase the whole of said land at a credit of *141ten years, as provided by the terms of the will of the testatrix, unless the said James R. Massey do pay to the other parties interested in such real estate the rents and profits of such real estate for the past fifteen years, and shall give a bond, with two good securities, besides a mortgage of the real estate so to be purchased by the said defendant, for the payment of the purchase money thereof, and the interest on the first day of January of each year.” Notwithstanding the judgment at once vested the lands partitioned in the various parties in interest in disregard of J. R. Massey’s right to purchase, by reaffirming an order previously made to that effect and subsequently rescinded.
James R. Massey was clearly entitled to take the lands at the appraised value, and was not bound to make his election until the value of the land was ascertained by the confirmation of the return of the Commissioners. It was proper that he should be required to give his bond and mortgage for the payment of the principal, in annual instalments, and interest upon it from the date of the judgment. Nothing appears in the case warranting the Court in demanding personal securities in addition to his own bond and mortgage. James R. Massey should be required to account for the rents and profits of the lands held by him other than his own share down to the time of his election. It is objected that the right of election is lost by lapse of time. By the terms of the will the election need not be made until the appraisement of the value in partition. As any of the parties had the right to demand partition, the delay in the appraisement cannot be charged as a default on the part of James R. Massey.
The remaining question is raised by James R. Massey, upon the allotment made by the Commissioners, under the following clause of the will: “ I give, devise and bequeath to my son, James R. Massey, for and during his natural lifetime, subject to the limitations and conditions hereinafter stated, my mills, situated on the Catawba River, with one hundred acres of land around the said mills, to be laid off in such way and manner as will be suitable and proper with reference to the mills and the balance of my estate.”
The Commissioners, in laying off this tract, gave land contiguous to the mill, but not lying compactly around it, such lands stretching from the mill chiefly in one direction. The object of this allotment was to define regular boundaries to the land outside of the mill lot. It does not appear that there is any defect as affecting the conve*142nient use of the mill, its approaches and appurtenances. The appellant claims that land immediately around the mill, considered solely with reference to the convenient use and value of the mill, should have been attached. This the will clearly does not authorize. The land must be around the mill, but not necessarily equally distributed about it, for the will directs that the situation of the balance of the real estate should be considered in the allotment. It does not appear that the allotment is in anywise inconsistent with the terms or intent of the will, and it ought to stand.
The judgment must be set aside, and the case remanded, to carry out the requirements of the judgment.
Moses, C. J., and Wright, A. J., concurred.