Boykin v. Capehart

• Decision Date: 03 October 1944
• Docket Number: 15681.
• Parties: BOYKIN v. CAPEHART et al.
• Court: South Carolina Supreme Court

31 S.E.2d 506

205 S.C. 276

BOYKIN v. CAPEHART et al.

No. 15681.

Supreme Court of South Carolina

October 3, 1944

Appeal from Common Pleas Circuit Court of Kershaw County; G. Duncan Bellinger, Judge.

Proceeding by Meta C. Boykin against William R. Capehart and others for a construction of the will of Mary Deas Boykin, deceased. From the decree, plaintiff appeals. [Copyrighted Material Omitted]

The order of Judge Bellinger, order refusing new trial and adding parties, and order confirming survey and plat of survey follow:

Order

The issue in this cause, tried before me without a jury, involves the title to some seventy-five acres of land which was owned by the late Mary Deas Boykin (the widow of Burwell H. Boykin) at the time of her death in September, 1938. The plaintiff, a daughter-in-law, and the defendants, a son-in-law and a daughter of Mary Deas Boykin, have an honest difference of opinion as to the meaning of her will and by appropriate pleadings have submitted this issue of construction to the Court.

In approaching the solution of this problem the Court is cognizant of the rule that in construing a will primary resort is to the words used by the testatrix (Lawton v. Hunt, 25 S.C.Eq. 233, 4 Rich.Eq. 233 First National Bank v. Hutson, 142 S.C. 239, 140 S.E. 596) but where words used are incapable of application as they stand, parol evidence may be received in order to show the meaning which the testatrix intended them to have. Robertson v. Wilson, 5 S.C.Eq. 56, Harper Eq. 56, Wigmore on Evidence, Sec. 2461 et seq. Where, as here, it is contended that a devise does not clearly describe lands, evidence has been received as an aid to construction. Bethea v. Bethea, 19 S.C.L. 64, 1 Hill 64, Jones v. Quattlebaum, 31 S.C. 606, 9 S.E. 982. However, in all cases the Court's chief reliance must be placed on the will itself.

Since the issue of construction hinges upon the identity of the lands described in the third and fourth items of the will of Mary Deas Boykin, it is important to bear in mind the exact language of these provisions:

"Third: I give and devise the plantation known as Carter Hill, situated in Kershaw County, South Carolina, except the house and approximately twenty-one (21) acres, heretofore devised, the remainder being approximately seven hundred (700) acres, equally between my daughter, Elizabeth S. Boykin, and William R. Capehart, the husband of my daughter, Deas M. Capehart, in fee simple, to them their heirs and assigns forever.

Fourth: I give, devise and bequeath my Mill Tract of land situated in Kershaw County, South Carolina, including the mill and gin on same, containing the pond to high water mark and some open land, being approximately five hundred (500) acres, more or less, as follows: One-half thereof to my son Richard M. Boykin and one-half thereof to Meta C. Boykin, the wife of my son Bolivar D. Boykin, in fee simple, to them their heirs and assigns forever."

At the time of her death Mary Deas Boykin owned some twelve hundred or thirteen hundred acres of land, all in one tract on Swift's Creek. Most of this land (about one thousand and eighty acres) had been owned by her father-in-law A. H. Boykin prior to his death about 1869.

After the death of A. H. Boykin, his executor Louis D. DeSaussure had the tract of Sixteen Hundred and Ninety acres known in its entirety as the Boykin Mill Tract (A. H. Boykin's home place was an entirely different location) platted by S. M. Boykin. In 1876 this part of the A. H. Boykin property was partitioned among three of his sons, Burwell H. Boykin, to whom was allotted the northern part of the property, designated as Tract No. 1 containing four hundred eighty-one acres; A. H. Boykin, who drew Tract No. 2 of five hundred twenty-four acres; and E. Miller Boykin who received Tract No. 3 containing six hundred eighty-five acres. These subdivisions were outlined on the 1869 plat by S. M. Boykin but no actual survey was made of the line along the pond and along the Creek Swamp which divided Tract No. 1 from Tracts No. 2 and No. 3. The acreages used in the partition instruments were therefore, in part, estimates.

An examination of this plat which is in evidence shows that Tract No. 1 includes the area in dispute which is a comparatively narrow strip of land above the Boykin Mill pond lying on both sides of Swift Creek to about the point where the old Northwestern Railroad crossed and above that point only on the south side of the creek.

By 1881 through various conveyances Mary Deas Boykin had acquired one thousand and sixty-five acres of the land which was included in the old A. H. Boykin Mill Tract. This acreage included Tract No. 1 which had been set off to Burwell H. Boykin and the major portion of Tract No. 3 which had been set off to E. Miller Boykin.

Later a seventeen acre tract which was originally a part of Tract No. 2 set off to A. H. Boykin, Jr., came into her ownership, and from time to time she or her husband acquired and sold off small contiguous tracts. Title to a small portion of this property was in Burwell H. Boykin at the time of his death in 1934, but since Mary Deas Boykin was his sole beneficiary, his ownership is not material here.

On this property Burwell H. Boykin and his wife, Mary Deas Boykin, built their home "Carter Hill," raised their family and lived until his death in 1934. Here she remained until her death in 1938.

It is the plaintiff's contention that the words "My Mill Tract of land" as used in Item 4 of the will of Mary Deas Boykin showed an intent on her part to include within the devise all of old Tract No. 1 which was set off to Burwell H. Boykin, in 1874 upon the theory that this "Tract No. 1" was synonymous with "Mill Tract"; on the other hand, the defendants urge that the disputed area was known in the family as a part of "Carter Hill."

The instruments which form the chain of title to the lands of Mary Deas Boykin, and the deeds to properties adjacent to Tract No. 1, throw little light on these contentions. In none of them is Tract No. 1 referred to as "the Mill Tract" or as "Carter Hill." While the 1869 plat refers to the entire one thousand six hundred ninety acres as the A. H. Boykin Mill Tract, it nowhere refers to any subdivision as "The Mill Tract" or as "the Boykin Mill Tract."

No particular help can be obtained from the 1929 timber deed from B. H. and Mary Deas Boykin to W. C. Pettus (Book BX 203) which sells certain timber which lies to the west of said Highway (Camden-Sumter) and is on land known as "Boykin Mill Tract" because this refers to an area below the dam admittedly covered by the devise. The same may be said of the designation on the 1869 plat--"line of the mill tract"--which is written on a part of the plat below the dam and may have been an original designation referring to the old A. H. Boykin Mill Tract.

The weight of the oral evidence on this point is with the defendants. Richard M. Boykin, Burwell H. Boykin and Irvine Boykin, all sons of the testatrix with no financial interest in this litigation, testify that in the family the disputed area was considered a part of "Carter Hill" and that the boundary between the "Mill Tract" and "Carter Hill" was the high water mark of the pond. This evidence is supported by the statements of both defendants. Only the plaintiff's husband expresses a view to the contrary.

Without this evidence, however, the language of Item 4 of the within question forces a conclusion that the area in the Swift Creek Swamp above the mill pond was not included therein. Mrs. Boykin in describing the devise in Item 4 of her will used the words "my Mill Tract of land ***, including the mill and gin on same, containing the pond to high water mark and some open land and some wood-land, being approximately five hundred (500) acres, more or less ***."

Admittedly the disputed land is above the high water mark of the pond. The will could not have used clearer language to express the view that the high water mark of the pond was to be the upstream or northeastern boundary of the property devised in Item 4. The contention of the plaintiff that the words "containing the pond to high water mark" meant "containing the pond and Swift's Creek above to the point where the creek overflows in times of heavy rain" is an unjustified strain on the clear meaning of the words used. The Court cannot rewrite the will in any such manner.

Leaving the disputed area out of the devise does no violence to the other words used by the testatrix. The land below the dam which passes under this devise is partly open and partly wood, so the language "some open land and some wood land" is satisfied. The Mill, gin and pond admittedly pass to the plaintiff.

Plaintiff strongly urges that to limit her to the high water mark of the pond will mean that she receives substantially less than the five hundred acres which the testatrix intended.

The refusal of the Court at a prior term to order a joint survey, and the failure of the parties to present in evidence any plat which would show the acreage accurately, make it difficult to determine how much land the plaintiff has received under this devise. Her witness, Alfred Boykin, estimates the acreage below the dam at 142, the pond area as shown on the 1869 plat as 290 acres and by adding 20 acres left off on the old survey and 17 acres purchased in 1925 from B. C. Truesdale, apparently arrives at a figure of 469 acres. Bolivar Boykin's figures based on a total pond area of 325 to 350 acres would probably be a little higher. If Burwell Boykin's estimate that the land below the dam is probably 150 to 175 acres is correct, then the devise contains 500 acres.

Assuming there is less than 500 acres it must be noted that Mrs. Boykin used the language ...