Opinion. 94 Wis. 465, 69 N. W. 165, 34 L. R. A. 821, 59 Am. St. 905, where it is held, that a license to cut and sell timber does not vest title in the licensee prior to the severance of such timber. Macomber v. Detroit, &c. R. Co., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. 713. It is assigned as error, that the circuit court allowed D. S. Young, as assignee of Lucy Atkinson, only $4 per acre for the 12 acres devised under the third clause of the will, and at the same time allowed W. S. Young $90 an acre for the land devised to him under the fourth clause of the will. In Jarman on Wills (6th ed.), p. 361, it is said: "Where the gift comprises a definite portion of a larger quantity, it is not rendered nugatory by the omission of the testator to point out the specific part which is to form such portion, the devisee or legatee being in such case entitled to select, by which means the subject of the gift is reducible to certainty; and id certum est quod certum reddi potest is a settled rule in the construction. of wills. Thus, if a man devise two acres out of four acres that lie together, it is said that this is a good devise, and the devisee shall elect." See also House v. Ewer, 37 N. J. Eq. 368; Love v. Stiles, 25 N. J. Eq. 381; Youmans v. Youmans, 26 N. J. Eq. 149. The principle established by these authorities is not disputed by appellants, but their contention is (1) that Walter S. Young, by his laches in failing promptly to assert his right, had lost it; and (2) that the facts established in the record do not sustain the decree as to the amount to which Walter S. Young is entitled. We do not think the position of appellants well taken with respect to the laches of Walter S. Young. It is true his answer was not filed until after the court had ascertained that the real estate was not susceptible of division, had decreed a sale, and a sale had actually been made. His answer was filed, however, before there was any distribution of the pro VOL. CIX-15. Opinion. ceeds. It does not appear that the delay has operated prejudicially to any of the parties in interest, or that it has interfered with or rendered more difficult a proper disposition of the controversy. There is nothing in the facts proved which shows that Walter S. Young could have selected 25 acres in kind, so as to protect his own interest and at the same time inflicted less injury upon others than follows from the course which has been in fact pursued. He had, then, the right to make the selection, it has not been lost by his laches or his acquiescence, and the only question which remains is, does the evidence support the decree in his favor? The matter was referred to a commissioner, who reported that he was entitled to the value of 25 acres of land at $90 per acre. It is true that the land appears to have been of very unequal value, its chief element of value consisting in the wood and timber upon portions of it; and the report of the commissioner appears to have been rested to a great extent, if not wholly, upon the testimony of J. L. Duval. This witness, after stating that he estimated the value of the timber upon the entire tract at $7,070, which would give an average value per acre of timber of $17, was asked this question: "Can you say approximately how many acres in the whole tract were heavily timbered, and what you would regard as a fair average value per acre of that portion? A. I cannot give the acreage on it, but there are acres of timber next to Robious which would cut 20,000 feet per acre. If there were a sufficient quantity of it, it would be worth from $4 to $5 per thousand feet on the stump. I mean if it were enough to justify an independent location for a sawmill, and I think there is enough for a small sawmill." We do not think this evidence sufficient to sustain the decree. It does not establish that there were 25 acres from which 20,000 feet per acre could be cut, worth from $4 to $5 per thousand feet on the stump. The witness expressly declines Opinion. to make any such estimate, and it is a mere leap in. the dark to undertake to make it for him. We think, in this respect, the decree is erroneous. We are further of opinion that the same principle which allowed W. S. Young to select 25 acres, under the fourth clause of the will, equally entitles the assignee of Lucy Atkinson to make selection of 12 acres, under the third clause of the will; so that there should be an inquiry as to what would be the value of 37 acres of the most valuable land of the estate of Sarah F. Young, of which 25 parts should be given to Walter S. Young and 12 parts to the assignee of Lucy Atkinson. Under the sixth clause of the will, the decree appealed from holds that the devisees therein named took a fee simple. Without expressing any opinion as to the correctness of this ruling, we shall content ourselves with saying that the commissioner reported that he had entertained grave doubts upon the subject, but had finally concluded to report that the devisees named in this clause took an absolute estate; that in reaching this conclusion he was in large measure influenced by the fact that Mrs. Adams and Mrs. Wilkinson in their answers disclaim any interest under this clause, and they alone could have an interest adverse to the parties therein named. The report of the commissioner with respect to this matter was not excepted to; the decree confirmed the report; and there is no error assigned with respect to it in the petition. It is assigned as error, that the decree appealed from allows J. M. Gregory an attorney's fee of $300, when he had already received on account of fee $200, and as special commissioner of sale the sum of $220. This matter was referred to a commissioner, with directions to report what further fee, if any, J. M. Gregory is entitled to for such services; which the commissioner answers as follows: "Your commissioner respectfully submits those two questions to the determination of the court, upon the record Opinion. and the evidence of said Gregory, returned with the report; but your commissioner thinks from the best consideration he can give the matter, that he should have a further fee of about $300.00, but he submits to the court what proportion of this should be borne by the parties he at present represents." This was a suit in chancery for the partition or sale of certain real estate among the parties entitled. The only question involving any difficulty arose upon the claim of Walter S. Young, and that led to no serious litigation. We see nothing in the record which an attorney was called upon to do for which the sums already paid to Mr. Gregory were not an adequate remuneration. He received in fees as an attorney $200, and $220 as a commissioner of sale; and the whole of his evidence before the commissioner upon his request or claim for additional compensation as attorney is addressed to the dif ficulty which he had to overcome, the service which he rendered, and the increased price he obtained for the land by his vigilance and activity in the discharge of his duties as a commissioner. But with respect to his compensation as commissioner, the statute law of this State is explicit. Section 3404 of the Code provides: "For the services of commissioners or officers under any decree or order for a sale, including the collection and paying over the proceeds, there shall not be allowed any greater commission than five per cent. on the first three hundred dollars received by them, and two per cent. on all above that. And if a sale be made by one commissioner or officer, and the proceeds be collected by another, the court under whose decree or order they acted, shall apportion the commission between them as may be just." Womack v. Paxton's Ex'ors, 84 Va. 9. 5 S. E. 550. We are of opinion that there was no error in the refusal of the court to allow J. L. Duval a fee of $10 as an expert witness. The decree appealed from must be reversed, and the cause remanded to be further proceeded in, în accordance with this opinion. Reversed. Syllabus. COUNTY OF LOUISA V. YANCEY'S TRUSTEE AND OTHERS. January 21, 1909. 1. APPEAL AND ERROR-Appeal from County Court to Circuit CourtReview-Jurisdiction.-On a writ of error from this court to a circuit court, this court has jurisdiction to review the action of the circuit court and to determine whether or not it had jurisdiction of a writ of error from that court to the county court, and, if it had not, to reverse its judgment and enter such judgment as the circuit court ought to have entered. It is not assignable as error, therefore, in this court that the writ of error from the circuit court to the county court was not perfected within the time prescribed by law. 2. APPEAL AND ERROR-Perfecting Appeal-Time Deducted-Objections for First Time in Appellate Court.-Whether a writ of error from a circuit court to a county court was perfected within the time prescribed by law depends, among other things, upon the time which had elapsed between the presentation of the petition for the writ and the delivery of the record and petition to the clerk of the appellate court, which time is to be deducted. If the case was argued in the circuit court, made a vacation case by consent, and submitted to the court for decision, without making the objection that the writ of error was not perfected within the time prescribed by law, and the record is silent as to the time to be deducted as above mentioned, the objection that the writ of error from the circuit court to the county court was not perfected in due time cannot be raised for the first time In this court. 3. APPEAL AND ERROR-Instructions-Invited Error.-Although an instruction requested by a defendant was not given by the trial court, yet if it did instruct upon that point as requested by the defendant, he cannot complain, on a writ of error. of the ruling of the trial court on that point. If error was committed, it was invited by him. 4. VERDICTS-Excessive-Case at Bar.-If. in an action against a county to recover for the value of goods furnished to persons |