The opinion of the Court was delivered by
Willard, C. J.
The facts of this ease are fully stated in the report of the Referee and the decree of the Circuit Court. The main features of the question depend upon the construction of the will of Mrs. Elizabeth Massey. The testatrix had one son, the defendant, James R. Massey, two daughters, and the children of a deceased daughter. She had a large estate, real and personal, including mills, plantation and slaves. The main features of the will were that James R. Massey was to take the mills with one hundred acres of land adjoining and one-half of her plantation, constituting the family residence. The residue of her estate, real and personal, was to be divided into four parts, of which the said James R. was to take one in addition to the specific devises already mentioned, and the two daughters and the children of her deceased daughter the other three-fourths. The will contemplates a partition of all the estate other than that devised to James R., and prescribes certain rules to be observed on such partition. She directs that upon such partition certain slaves, by name, shall be “ allotted” to James R., and certain others, by name, to her daughter Elizabeth. For her remaining daughter and the children of her deceased daughter she makes a provision partly in slaves and partly pecuniary, intended to be equal in pecuniary value, and she directs that for this purpose the slaves thus allotted should be valued on such partition and the allotments of slaves and money equalized. She also directs that her son, James R., should have a right to elect to take the whole of the land upon such partition, and provides as follows: “If my son, James R. Massey, should, decide to'take the [388]*388lands in this partition at their appraised value, this, with the value of the negroes, will far exceed his one-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 installments.”
The first question that arises is, when the children were, by the terms of the will, to take the shares allotted in slaves by name?
The language of the will bearing on the answer to this question is “on the division and partition of the same,” [meaning the residue of the estate, real and personal, after the specific devise to James R], “I allow the negroes to be laid off, allotted and vested as follows.” Then follows the specific allotment of the negroes as already stated. It is clear that this provision is to take effect upon the partition of the estate, and that in the mean time the slaves are to remain part of the testatrix’s undivided estate.
By what authority the partition is to be made is not stated. If the parties in interest should be competent to make a voluntary partition, such mode of partitioning would be within the intent of the will; if not so competent by reason of minority or other cause, a partition by authority of law would be clearly within her contemplation.
The conclusions just stated as to the construction of the will are derived from the express declarations of its terms, and there is nothing contained in the will demanding that the sense should be modified either to satisfy the other expressions or to render practicable the accomplishment of the testatrix’s full purpose. It follows that, to conform to the intent of the testatrix, all the estate not required for the payment of debts and not specifically devised should have been kept together by the executor until partition could be made, and at that time the various provisions of the will as to such residue should have been carried into effect. This would embrace the slaves and that portion or interest in the land not devised to James R., and upon such partition the appraisal of the slave property should be had for the purpose of equalizing the shares; and in the event that James R. should elect to take the whole land, an appraisal of its value should be made and the terms and conditions of the credit to James R. for the amount due by such appraisal, provided he demanded such credit, should be ascertained.
[389]*389The complaint in this case demands a partition of the real estate and an account, among other things, on the part of James R., for the rents and profits of the realty in his hands and for the personal property held by him in excess of the amount he was entitled under the will to take. This Court held on the former hearing in this cause (7 S. C., 134,) that James R. Massey was entitled to his election to take the lands upon appraisal for the purpose of partition in accordance with the provisions of the will. It was also held that James R. should be required to account for the rents and profits of the land held by him other than his own share down to the time of his election.
It appears by the findings of fact “ that about the first of January, 1861, the negroes named and allotted by Mrs. Massey in her said will were valued by certain persons, who were called together for the purpose by Dixon Barnes, the then executor of said will, and the said negroes placed in the possession of the parties to whom they were severally allotted, or to the guardians of such of said parties as were then under age. That the said James R. Massey was then a minor and was represented at the appraisement of the negroes by his guardian, Francis P. Ingram, who assented to what was done.” The Referee holds that the results of this appraisement are binding upon James R. Massey, and this conclusion is sustained by the Circuit Court.
The executor under the will had no authority to designate appraisers of the slave property, and the consent of the guardian of James R. could confer no such authority; nor had he power to cause an appraisement to be made separate and apart from due proceedings had for the partition of the estate, real and personal, and such an assumption of authority could not be validated by the assent of the guardian. The object of the present suit is to obtain that partition among other things, and the allegations of the pleadings and the judgment of this Court upon them entitling the parties to the partition contemplated by the will estop the parties from affirming that any such partition had, previously to the commencement of this suit, been made in accordance with the provisions of the will.
The defendant, James R. Massey, cannot properly be regarded as having bound himself to the results of such irregular appraisement by anything that appears in the case. The only fact on which such [390]*390assumed acquiescence can be based is that the real estate and the slaves, with which he is now sought to be charged, remained in his hands, or those of his guardian, up to the time when the slaves were emancipated. It was held on the former hearing in this case, already referred to, that the holding of the real estate by James R., up to, the commencement of this suit, could not be regarded as wrongful, so as to forfeit his right of election on partition, inasmuch as it was in the power of any of the parties in interest to institute proceedings for partition, by means of which the possession of the lands devised might have been disposed of agreeably to the provisions of the will. It would follow that, as has been already said, the estate, real and personal, being required under the will to be kept together until partition, that the retaining of the slaves upon the land was in accordance with the provisions of the will and cannot be made ground for holding James R.
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The opinion of the Court was delivered by
Willard, C. J.
The facts of this ease are fully stated in the report of the Referee and the decree of the Circuit Court. The main features of the question depend upon the construction of the will of Mrs. Elizabeth Massey. The testatrix had one son, the defendant, James R. Massey, two daughters, and the children of a deceased daughter. She had a large estate, real and personal, including mills, plantation and slaves. The main features of the will were that James R. Massey was to take the mills with one hundred acres of land adjoining and one-half of her plantation, constituting the family residence. The residue of her estate, real and personal, was to be divided into four parts, of which the said James R. was to take one in addition to the specific devises already mentioned, and the two daughters and the children of her deceased daughter the other three-fourths. The will contemplates a partition of all the estate other than that devised to James R., and prescribes certain rules to be observed on such partition. She directs that upon such partition certain slaves, by name, shall be “ allotted” to James R., and certain others, by name, to her daughter Elizabeth. For her remaining daughter and the children of her deceased daughter she makes a provision partly in slaves and partly pecuniary, intended to be equal in pecuniary value, and she directs that for this purpose the slaves thus allotted should be valued on such partition and the allotments of slaves and money equalized. She also directs that her son, James R., should have a right to elect to take the whole of the land upon such partition, and provides as follows: “If my son, James R. Massey, should, decide to'take the [388]*388lands in this partition at their appraised value, this, with the value of the negroes, will far exceed his one-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 installments.”
The first question that arises is, when the children were, by the terms of the will, to take the shares allotted in slaves by name?
The language of the will bearing on the answer to this question is “on the division and partition of the same,” [meaning the residue of the estate, real and personal, after the specific devise to James R], “I allow the negroes to be laid off, allotted and vested as follows.” Then follows the specific allotment of the negroes as already stated. It is clear that this provision is to take effect upon the partition of the estate, and that in the mean time the slaves are to remain part of the testatrix’s undivided estate.
By what authority the partition is to be made is not stated. If the parties in interest should be competent to make a voluntary partition, such mode of partitioning would be within the intent of the will; if not so competent by reason of minority or other cause, a partition by authority of law would be clearly within her contemplation.
The conclusions just stated as to the construction of the will are derived from the express declarations of its terms, and there is nothing contained in the will demanding that the sense should be modified either to satisfy the other expressions or to render practicable the accomplishment of the testatrix’s full purpose. It follows that, to conform to the intent of the testatrix, all the estate not required for the payment of debts and not specifically devised should have been kept together by the executor until partition could be made, and at that time the various provisions of the will as to such residue should have been carried into effect. This would embrace the slaves and that portion or interest in the land not devised to James R., and upon such partition the appraisal of the slave property should be had for the purpose of equalizing the shares; and in the event that James R. should elect to take the whole land, an appraisal of its value should be made and the terms and conditions of the credit to James R. for the amount due by such appraisal, provided he demanded such credit, should be ascertained.
[389]*389The complaint in this case demands a partition of the real estate and an account, among other things, on the part of James R., for the rents and profits of the realty in his hands and for the personal property held by him in excess of the amount he was entitled under the will to take. This Court held on the former hearing in this cause (7 S. C., 134,) that James R. Massey was entitled to his election to take the lands upon appraisal for the purpose of partition in accordance with the provisions of the will. It was also held that James R. should be required to account for the rents and profits of the land held by him other than his own share down to the time of his election.
It appears by the findings of fact “ that about the first of January, 1861, the negroes named and allotted by Mrs. Massey in her said will were valued by certain persons, who were called together for the purpose by Dixon Barnes, the then executor of said will, and the said negroes placed in the possession of the parties to whom they were severally allotted, or to the guardians of such of said parties as were then under age. That the said James R. Massey was then a minor and was represented at the appraisement of the negroes by his guardian, Francis P. Ingram, who assented to what was done.” The Referee holds that the results of this appraisement are binding upon James R. Massey, and this conclusion is sustained by the Circuit Court.
The executor under the will had no authority to designate appraisers of the slave property, and the consent of the guardian of James R. could confer no such authority; nor had he power to cause an appraisement to be made separate and apart from due proceedings had for the partition of the estate, real and personal, and such an assumption of authority could not be validated by the assent of the guardian. The object of the present suit is to obtain that partition among other things, and the allegations of the pleadings and the judgment of this Court upon them entitling the parties to the partition contemplated by the will estop the parties from affirming that any such partition had, previously to the commencement of this suit, been made in accordance with the provisions of the will.
The defendant, James R. Massey, cannot properly be regarded as having bound himself to the results of such irregular appraisement by anything that appears in the case. The only fact on which such [390]*390assumed acquiescence can be based is that the real estate and the slaves, with which he is now sought to be charged, remained in his hands, or those of his guardian, up to the time when the slaves were emancipated. It was held on the former hearing in this case, already referred to, that the holding of the real estate by James R., up to, the commencement of this suit, could not be regarded as wrongful, so as to forfeit his right of election on partition, inasmuch as it was in the power of any of the parties in interest to institute proceedings for partition, by means of which the possession of the lands devised might have been disposed of agreeably to the provisions of the will. It would follow that, as has been already said, the estate, real and personal, being required under the will to be kept together until partition, that the retaining of the slaves upon the land was in accordance with the provisions of the will and cannot be made ground for holding James R. to a measure of liability different from that fixed by the will. In addition to this, it appears that James R. attained majority in the year 1862, while absent from home in the Confederate army, from which he did not return until near the close of hostilities, and that the slaves were lost by emancipation at the close of hostilities.
The circumstances attending the occupation of the slave property during the short time that elapsed after the return of James R. from military service until the emancipation show no matter of fact from which an intent to change the nature of his rights and liabilities as established under the will; and as at that time slave property was in imminent jeopardy, it is not to be assumed that James R. voluntarily placed himself in such a position that he would be chargeable with the value of the negroes in case of loss by emancipation, whereas, by the construction of the will, such a loss would fall upon the estate at large if it happened to occur before partition was made.
It must be concluded that the Circuit Court erred in holding that James R. Massey was chargeable with the amounts ascertained by the appraisal made by the authority of the executor. It is proper that he should be charged with whatever value he has derived from the use of the slaves, prior to emancipation, over and above the proportion of such value he was entitled to under the will, on the same ground upon which he was required by the judgment of this Court to account for the rents and profits of the lands.
[391]*391The objection that the Statute of Limitations should have been applied in the accounting for the rents and profits of the land will be next considered.
The Code requires that the defense of the Statute of Limitations shall be taken by answer. — Code, § 97. If, then, the defendant had an opportunity to set up such defense in his answer, he was bound to do so. The complaint prayed an account of the rents and profits of the lands, and the defendant was bound to interpose any defense of which he desired to avail himself growing out of the Statute of Limitations in his answer to the complaint. The Statute of Limitations might constitute either a full or partial defense to the claim to an account. If the right to an accounting was altogether lost under the statute, then it was a full defense; if, on the other hand, the bar was only as to certain transactions entering into the account, leaving the party liable to account as to other matters, then the defense was a partial one only; but in either ease it ought to be pleaded that the party may be put on notice of what he is called upon to meet.
It follows that the failure of the defendant to plead the statute barred him from interposing that defense on the trial of the issues. We regard the reasons of the Circuit Court for refusing an amendment by way of setting up the statute as sufficient.
We also concur in the views of the Circuit Court as to the effect of a hearing and decision by the Circuit Court as destroying the force of the exception that the Referee had no authority to submit findings of fact and law, but should have confined himself to reporting the evidence alone, drawn from the terms of the order of reference.
The decree of the Circuit Court and the reports of the Referees must be set aside so far as they are inconsistent with the conclusion already stated, and the cause remanded for further proceedings conformable to this decision.
Mclver, A. J., and Haskell, A. J., concurred.