
    *Kenny's Adm'ors v. Kenny & als.
    June Term, 1874,
    Wytbeville.
    K died In 1851, leaving- a widow and six children. By his will he giyes his slaves to his widow for her life; and at her death he gives them to his sons, W and R. and directs they shall he valued in the mode prescribed in the will, and W and R shall pay to each of the other children one-sixth of their value; and he appoints W and R executors; who Qualify. The widow died in 1860, when W and R took possession of the slaves, and divided them between them, and held them until two died in 1862, and the others were freed by the results of the war. In 1861 H, another son of K, brought suit to have the slaves valued. In 1868 the administrators of W and R file an answer insisting that they held the slaves as executors, and were not bound to elect to take them on the condition until they were valued; which was never done—TJnivn;
    i. Life Interest in Personal Property — Rights of Remaindermen.—On the death of the widow it was the right of "W and R to take possession of the slaves as their own, on the terms of the will, without the assent of the executors, whose office, in this respect, was fully discharged when the slaves were delivered to the life tenant.
    2. Same—Tifie on Death of Life Tenant.—The title to the slaves passed to W and R by operation of law immediately on the death of the life tenant, unless rejected by them. And it was competent to them to signify their acceptance of the legacies by receiving and holding the slaves as their own property under the will, while awaiting a valuation thereof.
    3. Same—Same - Legatees and Executors.—Whether they did so take and hold is a question of fact; and on the evidence this court held they did; and that it was too late in 1868 for them or their personal representatives to pretend for the first time that they held as executors and not as legatees.
    4. Having in fact accepted the legacies, they must pay the other children each one-sixth of the value at the time of the death of the life tenant.
    *William Kenny, of the county of Carroll, died in 1851, leaving a widow and six children, and leaving a will which was duly admitted to probate ; and his sons, Robert and William Kenny, who were named executors, qualified as such in the County court.
    By his will, after giving to his three sons each a tract of land, and to his daughters some land in Kentucky and personal property, he provides that his wife shall have his slaves for her life; “and at my death are to be valued, and Robert Kenny and William Kenny to hold them, and pay their brother, Hance H. Kenny, and their three sisters, an equal part with themselves, to be paid in trade at trade prices. And they are to have five years to pay for them. My object for doing this is to keep them all together, where they will be well treated.”
    The slaves were four, and the widow went into possession of them, and held them until her death in September 1860, when they went into the possession of Robert and William Kenny, who divided them between them, and they remained in their possession until two of them died, and the other two were freed by the results of the war.
    In February 1861, Hance H. Kenny instituted a suit in equity against Robert and William Kenny and the other parties interested, in which after setting out the foregoing facts, he said that a difficulty had occurred as to how the valuation of the slaves should be made; that the County court, on the application of the plaintiff, had appointed three men to make the valuation; but the said Robert and William Kenny refused to let them be valued, and still hold them and refuse to let them be valued. They ask for a construction of the will, and that the provision as to the slaves may be carried out.
    *The defendants appeared but did not answer, as all the facts were set out in the bill and exhibits; and it was agreed that the court might decide all questions as upon a bill taken for confessed.
    The court made a decree appointing commissioners to value the slaves, in a mode stated in the decree; and upon the return of their report, made a decree in favor of the different parties, according to the report. Rrom this decree Robert and William Kenny took an appeal, and in May 1867 the decree was reversed.
    When the cause went back, Robert Kenny and the administrators of William Kenny filed their answer. They say that the slaves went into the possession of the widow of the testator, and were held by her until her death in September 1860; and that after her death they came into the possession of Robert and William Kenny, Jr., the executors of William Kenny, Sr., as a portion of the unadministered assets of their testator; and so remained in their possession until they ceased to be property, by the death of two of them in 1862, and as to the other two, by the results of the war. They deny that they ever took or held possession of the said slaves in their own right, as their own property, or that they ever considered or treated them as their own property; and, indeed, they had no right to do so until said slaves were valued and appraised to them in the mode directed by the will of William Kenny. They deny that they have refused to have the slaves valued at the proper time and by the proper persons, according to the plainly expressed will of the testator, but they were always willing to have them so valued. And they insist that the legacy was coupled with a condition that the slaves should be valued; and until this was done, they were not bound to make their election whether they would take them and pay to the *other children their shares of the value; and that the said slaves having ceased to be property, they have no choice left and cannot be compelled to pay their brother and sisters for property which never came into their possession as a legacy.
    There was evidence taken as to the value of the slaves; but it was finally agreed by the parties, that the four should be valued each at $1,250. This court held the evidence showed clearly that Robert and William Kenny took the slaves into their possession on the death of their mother, and held them as their own, until they died or were freed as aforesaid.
    Robert and William Kenny having died, the suit was revived against their administrators ; and the cause came on to be heard on the 9th of September 1870, when the court held that Robert and William Kenny, in their lifetime, made their election to take and hold the said slaves, and that they were concluded by such election. And decreed against their administrators in favor of the other parties, each for one-sixth of the agreed value ofr the slaves. And the administrators thereupon applied to this court for an appeal; which was allowed.
    J. N. Walker and John W. Johnston, for the appellants.
    Terry & Pierce and Caldwell, for the ap-pellees.
   BOUTDIN, J.,

delivered the opinion of the court.

The court deems it unnecessary in this case to consider and decide the question so earnestly and ably discussed at the bar, whether the devises of land in the will of William Kenny, Sr., to his sons, Robert and William Kenny, respectively, are so connected *with the bequests of slaves in remainder to the same legatees as to prevent them from rejecting the bequests of the slaves without at the same time surrendering their claim to the lands, on the principle invoked by the appellees, that a party cannot at the same time claim under and against a will; that he cannot accept in part and reject in part the same instrument, but must conform to its provisions throughout, or reject it altogether. There is no doubt about the general rule; but the question of its application to this case does not arise, as there has been here no rejection in fact of any of the provisions of the testator’s will.

It is very clear, on a just construction of the will, that the testator, after having bequeathed the slaves in question to his wife for life, bequeathed the same “after the death of his widow to the appellants, Robert Kenny and William Kenny, who were to pay each of the other children of the testator an equal proportionate part with the said appellants respectively of the value of said slaves,, viz: one-sixth part to each child,” such value to be ascertained as provided in the will. About this there can be no doubt, as the proposition announced is in the very words of this court when construing the will on a former appeal in the cause.

On the death then of the testator’s widow, the legatees, Robert and William Kenny, were entitled to the slaves on the terms of the will; and if they were willing to accept the legacies, it was their absolute and unqualified right to take immediate possession of the slaves and to hold the same as their own property without the intervention or assent of the executors, whose office in this respect was fully discharged when the slaves were delivered to the life tenant. The valuation of the slaves, and the payment by Robert and *William Kenny to their brother and sisters respectively, of their due proportions of such value in the mode and within the period prescribed by the testator were matters outside, and wholly independent of the title to the slaves. The title to the slaves passed to the legatees in remainder, by operation of law,' immediately on the death of the life tenant, unless rejected by them; and it was competent to them to signify their acceptance of the legacies by receiving and holding the slaves as their own property under the will while awaiting a valuation thereof. Such a course was convenient in itself, and could not result in any practical mischief. Whether they did so take and hold or not is purely a question of fact; and we think the affirmative is abundantly established by the evidence in the case. They took possession of the slaves, as they had a right to do, im-mediateljr on the death of the life tenant, not as executors, but in their own right as legatees. They denied that they belonged to the estate-- refused to allow them to be hired out pending the controversy as to the mode of valuation—claimed them as their own property under the will—actually divided them between themselves as such very soon after the life tenant’s death—and so held them respectively, until they perished on their respective hands by death and the results of the war. In the face of these facts it was too late, in March 1868, for them or their personal representatives to pretend for the first time, that they held as executors, and had not accepted the legacies, when more than eight years had elapsed since they had actually divided the slaves between themselves as legatees, when nearly three years had elapsed since the close of the war, and when the slaves themselves had long since perished in their individual service'—two of them by death, and the others by the ^results of the war. Under such circumstances we think their acceptance of the legacies was final and complete.

We are of opinion, therefore, that there is no error in the decree complained of, and that the same be affirmed with costs and damages to the appellee.

Decree affirmed. 
      
       Mason v. Jones, 26 Gratt. 271, the principal case is sustained upon the rule laid down in the first headnote.
     