CROUCH VS. SMITH. 403

agreement of the 8th of May, 1848, (making the allowance to
Smith and his mother in lieu of their right to cut wood,) under
which the decree was passed, and the only question presented
by the petition and answer, is, whether the removal of this
wood and rail stuff by Smith, after the sale, is a sufficient rea-
son to reject the return of the commissioners; or whether the
court may not itself so far modify their return, as to order a
proportiorf of the value thereof to be deducted from the sums
to be paid by the petitioners.

One of the questions, therefore, discussed by the counsel for
the petitioners in the argument, is not raised by the petition ;

and as the respondent Smith was not notified by it, that his
entire right to cut wood and timber from this land would be
disputed, and, therefore, may have omitted to offer the proof
which, under other circumstances may have been in his reach,
it might nut be proper to permit this question to be brought into
view. Smith was not apprised by the petition of Crouch and
Lazenby, that the privilege given him by the will of his father,
to cut wood and timber from this land, was supposed to be re-
voked by the codicil. On the contrary, all the previous pro-
ceedings in the cause distinctly recognized the continued ex-
istence of this right, and the only question which he was called
upon to meet, had reference to the effect upon the valuation of
the selected appraisers of the parties, which it was alleged ought
to be produced by the removal of the wood and rails in ques-
tion.

It is now, however, said, that the codicil to the will of the
testator must be regarded as revoking altogether the privilege
in question, given by the will to the widow and son of the tes-
tator; or at all events, that if it does not amount to a total re-
vocation of the will in that particular, it roust be considered as
reducing to some extent the value of the privilege, and that,
therefore, the estimate of the commissioners is excessive, and
.should be rejected.

I am very clearly of opinion, that even if the question was
properly before the court, and these petitioners could now, not-
withstanding their reiterated recognition of the existence of the