Boykin v. Ancrum

• Decision Date: 17 April 1888
• Citation: 6 S.E. 305,28 S.C. 486
• Parties: BOYKIN et al. v. ANCRUM et al.
• Court: South Carolina Supreme Court

6 S.E. 305

28 S.C. 486

BOYKIN et al. v. ANCRUM et al.

Supreme Court of South Carolina

April 17, 1888

Appeal from common pleas circuit court of Kershaw county; NORTON Judge.

Action by Elizabeth B. Boykin and others against W. A. Ancrum and others to recover possession of lands to which plaintiffs claimed title under the will of William Ancrum, deceased. The case was referred to a master, whose decisions were partially affirmed and partially reversed by the circuit court on appeal. From this decree both parties appeal.

W. M Shannon, for plaintiffs.

J. T Hay, for defendants.

McGOWAN J.

In the year 1831 William Ancrum died, leaving a will, by the fifth clause of which he devised as follows: "And as to my real estate I give and bequeath and devise unto my dearly-beloved wife, Julia, my dwelling-house situate in the town of Camden, with the appurtenant lands and hereditaments thereunto belonging, *** for and during the term of her natural life. From and after the decease of my said dearly-beloved wife, I give and bequeath and devise my said dwelling-house *** to my eldest son, Fowler Brisbane Ancrum for and during the term of his natural life; and from and after his decease to his lawful issue, absolutely and in fee-simple. If my eldest son, Fowler Brisbane Ancrum, should die, leaving no lawful issue at the time of his decease, then and in such case I give, bequeath, and devise my dwelling *** to my second son, William Alexander Ancrum, for and during the term of his natural life; and from and after his decease to his lawful issue, absolutely and in fee-simple. But if my said second son, William Alexander Ancrum, should die, leaving no lawful issue at the time of his decease, then and in such case I give, bequeath, and devise my said dwelling, etc., to my third son, Thomas James Ancrum, for and during the term of his natural life; and from and after his decease to his lawful issue, forever and in fee-simple," etc. The eldest son, Fowler Brisbane Ancrum, died early, without lawful issue at the time of his death. The second son, William Alexander Ancrum, purchased the life-estate of his mother, Julia, (afterwards Mrs. Glass,) in 1837, (the deed, however, was not proved;) and thus being, as he doubtless supposed, the owner of the fee, on March 25, 1857, he conveyed the premises described, with the usual warranty, to one Joseph W. Doby, who, in 1863, conveyed them to James R. Read; and he (1873) to Martha C. Jennings; and she (1876) to E. D. Durham; and he (1876) to Thomas J. Ancrum; and he (1881) conveyed the same to William A. Ancrum, trustee, with the exception of one-half acre, which was conveyed (1884) to Fannie C. Johnson; and William A. Ancrum, trustee, (1885,) conveyed one acre of said premises to H. U. Parker. Fannie C. Johnson, being advised that she had good legal title, made improvements on the premises conveyed to her, which enhanced their value $1,450; and William A. Ancrum, trustee, supposing that his title was good, made improvements on the premises conveyed to him, which enhanced their value $2,000. William Alexander Ancrum died in the month of July, 1862, leaving at the time of his death as his lawful issue his son, Thomas A. Ancrum, and four daughters, viz., Mary, who intermarried with C.J. Shannon; Elizabeth B., who intermarried with Samuel Boykin; Ellen, who intermarried with Francis D. Lee; and Margaret, who intermarried with Samuel F. Boykin. Elizabeth was born April 25, 1843, and Margaret was born on May 6, 1848, and died April 28, 1884, leaving as her heirs at law her husband, Samuel F. Boykin, and four minor children, viz., Douglass A., Samuel F., Mattie R., and William A. Boykin. In 1872, while James R. Read held the premises, Thomas J. Ancrum, Mary A. Shannon, and Ellen D. Lee, three of the children of William Alexander Ancrum, by their deed under seal, released and relinquished all right or claim in said premises sold by their father. Julia Glass, the widow of the testator, died in 1885; and Elizabeth B. Boykin and the husband and children of her deceased sister Margaret Boykin, (being the two children of William A. Ancrum, who did not release their interest in the premises,) instituted this action, some time in the latter part of the year 1885, (the exact date does not appear,) against the several parties in possession, to recover their respective shares of the aforesaid premises, as purchasers under the will of William Ancrum, and to partition the same among themselves. The defendants claim that, the first son, Fowler Brisbane Ancrum, being out of the question, the devise gave a vested fee conditional to William A. Ancrum, and, having aliened the premises after issue born, his alienees are seized in fee; and, failing in this construction, that they had acquired title by the statute of limitations and presumption of a grant from lapse of time, etc. The issues of fact and of law were referred to the master, J. D. Dunlap, Esq., who made a very full and clear statement of the facts, as herein summarized, and held that William A. Ancrum took under his father's will only a life-estate in remainder after the life-estate of his mother Julia, and that his children and grandchildren (whose parent was dead) took by purchase as remainder-men, and not as heirs by limitation; and that Elizabeth B. Boykin and the heirs of her deceased sister Margaret Boykin are entitled to recover their shares of the premises in question,--the said Elizabeth B. one-fifth part thereof, and the other plaintiffs (heirs of Margaret) another one-fifth part,--and all proper rents, and allowing credits for improvements accordingly, etc. This report was heard upon exceptions by his honor, Judge NORTON, who confirmed the report as to the construction of the will of William Ancrum; but he held that, upon the purchase of his mother's (Julia's) life-estate by William Alexander Ancrum, that estate was merged in his own life-estate; and as that ended with his death, in July, 1862, a right of action then accrued to the remainder-men, who were under no disability to sue; and that the lapse of 20 years from that time until the action was brought raised the presumption of a grant from Mrs. Elizabeth B. Boykin, and, as to her, he dismissed the complaint; but he decreed that Samuel F. Boykin, the husband of Margaret, who had died, was entitled to one-fifteenth, and each of her four minor children to one-thirteenth, of the premises claimed. From this decree both the plaintiffs and defendants appeal to this court; the defendants upon the single ground that "his honor erred in adjudging that, under the will of William Ancrum, the children of William A. Ancrum took, as purchasers, an estate in fee-simple in remainder in the premises described, and that William A. Ancrum took only a life-estate therein." The plaintiffs' exceptions: "(1) Because his honor erred in holding that, when W. A. Ancrum purchased the life-estate of Mrs. Julia Glass in the premises described in the complaint, her life-estate merged in the life-estate of the said W. A. Ancrum. (2) Because his honor erred in holding that the presumption of a grant was set in motion against the plaintiffs at the time of the death of W. A. Ancrum. (3) Because his honor erred in holding that the occupancy of the premises since the death of W. A. Ancrum has created a complete presumption that Mrs. Elizabeth B. Boykin had conveyed her interest in...