Opinion
15681
October 3, 1944.
Before G. DUNCAN BELLINGER, JUDGE, Kershaw County, June, 1943. Affirmed.
Proceeding by Mata C. Boykin against William R. Capehart and others for the construction of the Will of Mary Deas Boykin, deceased. From the Decree passed herein, the Plaintiff appeals.
The Decree of the Circuit Court, the Order refusing a New Trial, and the Order Confirming the survey and plat of the boundary line, affirmed and adopted as the Judgment of this Court, follow:
OrderThe 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 textatrix ( 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 woodland, 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 "approximately five hundred (500) acres, more or less"; that the pond area had never been surveyed, and that at the time of the drafting of her will the 1869 plat was not available to her or to her lawyer. Under such circumstances a six (6%) per cent shortage in acreage, if such does actually exist, would not justify the Court in overriding the other language of the devise. Cheves v. Richardson, 1835, 11 S.C. Eq., 209, 2 Hill Eq., 299.
Considering the will as a whole, and considering no extraneous testimony, the Court's conclusion is that the area in dispute is not covered by Item 4 of the will. Considering the language of the will in the light of the admissible testimony, the same conclusion must be reached.
While it is clear that the dividing line between the property of the plaintiff and that of the defendants is the high water mark of the pond, no accurate measurement has been made as to where this high water mark would place the boundary. Estimates are that the high water mark is from 20 to 30 inches below the surface of the paved Camden-Sumter Highway at the spillway. The parties should be able to agree among themselves as to where the high water mark of the pond is located.
It is, therefore, ordered and adjudged:
1. That for the reasons above stated, title to that strip of land formerly owned by Mary Deas Boykin along Swift Creek above the high water mark of the pond be, and hereby is, declared as vested in the defendants under the provisions of the will of Mary Deas Boykin.
2. That in the event the parties are unable to agree on the actual location of the dividing line between their properties, either may apply to this Court for a survey or such other relief as may be appropriate.
3. That the relief demanded in the complaint is denied with costs to the defendants.
Order Refusing New Trial and Adding Parties
Since the filing of my decree in this cause on the 6th day of January, 1943, the plaintiff has filed notice of motion for a new trial upon after-discovered evidence, and has also moved the Court to determine the high water mark as fixed by the said decree, and has moved for an extension of time in which to perfect the appeal noticed by her therefrom.
The defendant, Elizabeth S. Boykin, also moved the Court for an order requiring W. Cullen Capehart and Burwell Boykin Capehart to be joined as parties-defendants in this action upon the ground that they have and claim an interest in the controversy adverse to the plaintiff, and they are necessary and indispensable parties to a complete and final determination and settlement of the issues involved herein, and as such to be bound by all decrees heretofore or hereafter entered herein.
The foregoing motions came on to be heard before me, in open Court, and it was made to appear that several years prior to the institution of this suit by the plaintiff the defendant, William R. Capehart, had sold and transferred his one-half undivided interest in the premises involved herein to his sons, W. Cullen Capehart and Burwell Boykin Capehart, and that the deed evidencing such alienation of title and likewise entered of record long before the suit was brought. It was tacitly agreed by the parties that W. Cullen Capehart and Burwell Boykin Capehart, as the owners of a one-half undivided interest in said premises, are proper, necessary and indispensable parties to this proceeding, and I do now so hold that they are hereby joined as parties-defendants hereto. There has also been filed in this record a verified petition signed by the said W. Cullen Capehart and Burwell Boykin Capehart asking that they be joined as parties-defendants and as such to be bound by all orders, rulings, decrees and judgments heretofore or hereafter entered in this cause.
The remaining question presented by the motion filed by the defendant, Elizabeth S. Boykin, and the petition filed by W. Cullen Capehart and Burwell Boykin Capehart will be hereinafter disposed of. It was concluded that I should dispose of the plaintiff's motion for a new trial before ruling upon the other motions filed by her.
The plaintiff's motion for a new trial is based upon the single ground that after the institution and trial of this suit on its merits and the rendition of the decree herein, the plaintiff discovered for the first time that about six months after the death of an ancestor under whom all of the parties hereto claim, the defendant, William R. Capehart, had conveyed his interest in the said lands to his two sons, W. Cullen Capehart and Burwell Boykin Capehart, and that therefore the defendant, William R. Capehart, has no interest in the premises and is not a proper party-defendant, and that his sons should have been designated defendants in his stead. It was further averred that these two sons are now in the armed forces of the United States and they are entitled to certain relief under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A., Appendix, § 501 et seq., but inasmuch as they have expressed their willingness under oath and in writing to be made parties to this action and to be bound by all orders and decrees entered herein, I regard their military service as being immaterial.
Upon the oral and written argument filed by the plaintiff the additional point was made that the description contained in the deed executed by the defendant, William R. Capehart, tends to establish the boundary line as contended for by the plaintiff but, as stated, this contention was not made one of of the grounds for new trial.
The plaintiff concedes that under the law of this State governing the granting of new trials upon the ground of newly discovered evidence, the moving party must establish to the satisfaction of the Court before which the motion is made at least three facts: (1) That the proposed new evidence was discovered after the former trial. (2) That it could not by the use of due diligence have been discovered in time to have been offered at the former trial. (3) That it is material and would reasonably change the result. This rule is established and affirmed in Sams v. Hoover, 33 S.C. 401, 403, 12 S.E., 8; Wardlaw v. Troy Oil Mill, 74 S.C. 368, 54 S.E., 658, 114 Am. St. Rep., 1004; Williamson v. Pike, 140 S.C. 376, 138 S.E., 831; Edwards v. Cottingham, 171 S.C. 131, 171 S.E., 621; State v. Jones, 172 S.C. 129, 173 S.E., 77; State v. Rector, 166 S.C. 312, 164 S.E., 872.
After careful consideration of the record offered before me, I am of opinion that the showing made by the plaintiff meets none of the foregoing tests, and that therefore the motion for a new trial should be denied.
It is no doubt true that the plaintiff did not discover the existence of the deed executed by Mr. Capehart in favor of his sons until after the institution and trial of this suit; however, the plaintiff is conclusively presumed to have known of the existence of this deed immediately upon the registration thereof, and it is conceded that it was recorded long prior to the time this suit was brought.
I am further of opinion that this deed not only could have, but should have been discovered by the exercise of reasonable diligence. A casual inspection of the records would have disclosed its existence.
In the ancient case of Drayton v. Thompson, 1792, 1 Bay 263, Mr. Justice Waties said:
"The discovery of new evidence has been rarely allowed as a ground for a new trial — and never, where the party might by using due diligence, have procured it before." (Italics mine.)
This principle was followed in the later case of Tillman v. Hatcher, 1839, Rice, 271. There the defendant sought a new trial upon the ground that a former will of his mother was not discovered until after the trial although he had made a search for it. In determining whether or not the showing made met the requirements laid down by Judge Waties in the Drayton case, supra, the Court said:
"But again, the will of June, 1833, was in the possession of Benjamin Hatcher (the defendant), and it is plain, that he had knowledge of such a will. He had been advised to search for it; but did not search so diligently as to find it, until the trial was over: when he searched again, and found it among his own papers. Without discrediting Mr. Hatcher's moral truth in this matter, we must not encourage such negligence, by ordering a new trial. He must abide the consequence of such extreme inactivity in his own concerns; and the neglect of the duty due to others. When we consider the hot contest between him and the distributees of Lucy Hatcher, such negligence was scarcely less than culpable."
The affidavit filed by one of the attorneys for the plaintiff in this case, and upon which the motion is predicated, reveals that he did not consult the public records at the time the suit was filed to ascertain whether or not William R. Capehart was still the owner of a one-half undivided interest in the premises, and I am of opinion that the neglect of the attorney in this respect brings this case squarely within the application of the Hatcher case. A motion based upon after-discovered evidence, consisting of a deed on record affecting the very lands in dispute, as is conceded in this case, will not and should not be granted for such records are always accessible to both parties and diligence would require the examination and procurement thereof in time for the trial. It was held in the case of Lee v. Unkefer, 85 S.C. 199, 65 S.E., 989, 67 S.E., 246, that the books of a bank which were accessible to defendant at all times are not newly discovered evidence which would be ground for a new trial, in the absence of any reason assigned why they had not been examined before the trial and offered in evidence. The plaintiff's attorney contends that during his negotiations with Mr. Capehart concerning loans and governmental subsidies he gained the impression that Mr. Capehart still owned the land, but I am of opinion that the neglect in failing to examine the public records and thus ascertain the true ownership was not thereby excused. I am therefore of opinion that under the authorities hereinabove cited, if for no other reason, a new trial should be refused because the deed could have been discovered prior to the trial by the exercise of due diligence. Neither am I of opinion that the plaintiff has made a sufficient showing as to the materiality of the deed in so far as it affects the merits of the case, or that the inference is readily susceptible that the production thereof would have affected the result of the trial. The plaintiff argues (although such contention was not made a ground for new trial) that the description of the premises as given in the deed would be of value in establishing her contention as to the boundary lines, but concedes that to obtain such aid it is necessary to interpolate another descriptive word. I do not believe that the production of this instrument would materially affect the decision of the question and in any event it would be merely cumulative. An unverified statement was also offered by the plaintiff's attorneys to the effect that there are "possible" statements made by the two Capehart boys that "might be pertinent" to the issues involved. In addition to the fact that there is no showing that such statements were actually made by the boys, the substance and purport thereof are wholly wanting. Accordingly, it is left open to conjecture as to whether or not such statements, if made, are material and would probably affect the outcome of the suit. Such showing is insufficient to satisfy the rule.
Inasmuch as I have concluded that the plaintiff's motion for new trial should be denied, the other pending motions should be disposed of by me and a determination here made of all of the pending questions.
The principal question remaining for decision — because both sides agree that a survey should be made and that the plaintiff's right of appeal should be preserved — is whether or not the decree heretofore entered herein should be made effective and binding upon the defendants, W. Cullen Capehart and Burwell Boykin Capehart. As stated, each of these defendants has expressed his willingness to be joined as a party-defendant and the desire to be bound by all orders and decrees heretofore or hereafter to be entered herein. I am of opinion that the Court has ample authority to grant this request.
In the case of Mordecai v. Canty, 86 S.C. 470, 68 S.E., 1049, the Court said:
"When jurisdiction of a subject-matter is conferred on a court, the power to bring before it all necessary and proper parties for the determination of the matter follows as an incident to jurisdiction."
See, also, Clifton v. Executors of Haig, 4 DeSaus, 330.
This principle has been codified in our statute law.
Section 404 of the Code provides that any person may be made a defendant who has or claims an interest in the controversy adversely to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.
Section 409 provides that the Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; and when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the Court to be made a party, it may order him to be brought in by proper amendment.
Section 494 provides that the Court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.
In Peoples Bank v. Bryant, 148 S.C. 133, 145 S.E., 692, 694, our Court held that the foregoing section has been liberally construed for the purpose of bringing before the Court all parties who may be necessary to a complete determination or settlement of all questions involved in the action, and continues:
"* * * This is particularly true when the action relates to the foreclosure of a real estate mortgage. The title to property, real or personal, sold under the order of the court of equity, should be clear and free, for the purpose of not only giving the purchaser at such sale good title, but for the further purpose of making the property bring its real worth at the sale. It is always better, therefore, for the court to have before it in any action where the sale of property is sought, any and all persons who have, or may claim to have, any interest in the property."
So far as the point under consideration is concerned I see no difference in principle between an action for the sale of property and an action to fix the lines of property.
In Fidelity Fire Ins. Co. v. Windham, 134 S.C. 373, 383, 133 S.E., 35, 38, the Court had occasion to consider the effect of Section 404 and 409, and in connection therewith said:
"There is contained in the Code two sections which particularly touch the authority of the court of common pleas to bring before it all necessary and proper parties to actions pending therein, and the reason therefor is expressly stated in the sections. (Quoting sections.) * * *
"Apparently, the two sections cited have been construed together for the purpose of giving full effect to the provisions of both, for it seems that the power to bring in new parties is entirely within the discretion of the circuit judge." (Citing cases.)
In the case of Bennett v. Hindman, 176 S.C. 151, 155, 179 S.E., 794, 796, the Court said.
"Section 409 of our Code provides that the court may determine any controversy between the parties before it and when it can be done without prejudice to the rights of others or by saving their rights, but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. We have examined the pleadings carefully, and we find no issues with or rights suggested in parties who are not already parties to this proceeding and whose rights must be ascertained and settled before the rights of the parties to this suit can be determined. If there were any such, then it would be the imperative duty of the court to order such persons to be made parties before further progress in the action." (Italics added.)
In Bomar v. City of Spartanburg, 181 S.C. 453, 457, 187 S.E., 921, 923, the Court, in dealing with this question, said:
"The discussion of this question may be preceded by the statement that it is held by the courts in this jurisdiction that the matter of making persons parties to an action is left largely to the discretion of the judge or court to whom the motion is addressed. True, but the discretion is a legal discretion and must be founded upon sound legal grounds. In other words, the judgment of the court in the exercise of its discretion must be in conformity with strict legal principles."
Aside from the agreement of the parties that W. Cullen Capehart and Burwell Boykin Capehart are proper, necessary and indispensable parties to a full and complete determination of the issues raised by the pleadings, I so hold, in my discretion. that they are. Inasmuch as they have expressed a willingness and desire to be bound by the previous proceedings had in this case, including all rulings, orders and decrees entered herein, they have necessarily adopted the pleadings filed by their co-defendants and have acquiesced in the issues joined thereunder. Accordingly it is not necessary, as is usually the case, to allow them time to answer and no good purpose would be served by so doing.
In the light of these considerations and upon the principles hereinabove announced I am of opinion, and so hold that they are as effectively bound by the pleadings, orders, rulings and decrees heretofore entered and by any judgment which may hereafter be entered thereon, to the same extent as if they had been parties-defendants ab initio.
As above stated, it is to the interest of all parties to have a survey made to determine the high water mark in accordance with the decree heretofore filed and all parties are agreeable thereto. It is, therefore, ordered, adjudged and decreed:
1. That W. Cullen Capehart and Burwell Boykin Capehart be, and they hereby are, joined as parties-defendants in this cause and as such they are bound by the pleadings, rulings, orders and decrees heretofore made and filed herein as fully and effectively as if they were made parties-defendants ab initio, and the said decree, dated January 6, 1943 is hereby amended so as to include W. Cullen Capehart and Burwell Boykin Capehart as parties-defendants, and as so amended is hereby ratified and in all respects confirmed.
2. That the plaintiff's motion for a new trial be, and the same hereby is denied.
3. That Tomlinson Engineering Company is hereby ordered and directed to make a survey of "said premises to fix the boundary line as determined in my said decree of January 6, 1943," with all convenient speed, and upon the completion thereof to file with this Court one copy thereof and to furnish one copy to the plaintiff and one copy to the defendants — the cost of such survey to be borne by the plaintiff and the defendants in equal shares.
4. That the time in which the plaintiff may perfect the appeal noticed from the decree dated January 6, 1943, is hereby extended until twenty days after the surveyor has furnished her with a copy of the plat of his survey.
Order Confirming Surety and Plat of Survey:
This matter comes on to be heard before me upon motion of the defendants for an order adopting and confirming the survey and plat dated July 28 — August 2, 1943, made and filed herein by Tomlinson Engineering Company by direction of the Court, and for such further relief as the defendants are entitled to under the decree heretofore filed herein.
After hearing arguments of counsel representing the parties it is apparent that the plaintiff contends that the survey should be made of that line shown on the plat and designated "High Water Mark the Line," and now asks that the surveyor be required to run the levels of this line. The plaintiff takes the position that the decree, which fixed the boundary of the high water mark, did not designate whether the high water mark was on the southern part of the pond and Swift Creek or on the northern boundary of the pond and Swift Creek and therefore if the high water mark on the northern boundary of the pond and creek was higher or lower than that of the southern boundary of the pond and creek that it would bring about a difference in the land passing under the will according to the interpretation thereof.
The plaintiff admits that according to the survey as made, she will obtain a portion of the lands on the southern side of Swift Creek lying between Swift Creek and the line delineated on the plat by the surveyor "A-B." This was a portion of the lands contended for by the defendants, but which was not allowed them under the decree filed herein.
Inasmuch as the defendants have relinquished any claim to the lands lying north of the line delineated on the plat by the surveyor "A-B," as representing the high water mark line elevation 100 feet, it does not appear that any useful purpose would be served by having the high water mark actually determined by survey on any part of the lands lying north of Swift Creek, and I do not think that the establishment of this line would aid in the construction of the will.
It is very evident from the argument of counsel for the plaintiff that she takes the position that the high water mark is that delineated as "High Mark the Line," as shown on the plat and that the term used in the will did not contemplate the high water mark as would be shown by an actual survey. If the Supreme Court should adopt the plaintiff's construction, then the question of having on the plat the high water mark as shown by an actual survey would go out of the case entirely.
When the order of survey was made there was no suggestion made at that time that the levels should be run completely around the pond and the sides of Swift Creek. During the trial of the case there was a great deal of evidence introduced by way of plats and surveys, as well as other evidence, to show what the actual high water mark was and the discussion came up several times during the trial as to whether or not "the high water mark" meant that shown by vegetation, soil, etc., or that it meant the actual level readings.
After study of the decree in this case and the plat of survey made by the surveyor appointed by the Court, I find that the surveyor followed my interpretation of the will in making his survey, and that therefore said survey and plat should be, and are hereby, adopted and made a part of the decree.
Upon the completion and filing of the survey time was extended to the plaintiff in which she may perfect the appeal noted by her to the Supreme Court. As such survey has been filed and the record has been completed, the plaintiff is hereby required to serve her case for appeal, with exceptions, within twenty days from the date of the notice by the adverse parties of the filing of this order.
And it is so ordered.
Mr. Henry Savage, Jr., of Camden, S.C. and Mr. C. T. Graydon, of Columbia, S.C. Counsel for Appellant, cite: As to Sufficiency of Description In Will To Identify Property Devised: 106 N.C. 395, 11 S.E., 248; 32 S.C. L. (1 Strob.), 8; 31 S.C. 606, 9 S.E., 982; 183 S.C. 509, 191 S.E., 422. As to "High Water Mark": 4 R.C.L., 104; Dembitz On Land Titles, p. 63; 17 Ann. Cas., 150; 87 W. Va., 56, 104 S.E., 273, 12 A.L.R., 1172; 44 S.C. 548, 22 S.E., 724; 153 Ga. 849, 115 S.E., 442. As to Parol Testimony of Testator's Declarations To Aid In Construction Of Will: 28 R.C.L., 280; 115 S.C. 145, 105 S.E., 275. As To Requisites For New Trial On After-Discovered Evidence: 33 S.C. 403, 12 S.E., 8; 139 S.C. 481, 138 S.E., 297; 20 Stand. Proc., 33 A.L.R., 853. As to Joinder Of Parties-Defendant: Code of S.C. 1942, Sec. 409; 20 R.C.L., 712.
Messrs. Robinson Robinson, and Messrs. Thomas, Cain Black, all of Columbia, S.C. Counsel for Respondents cite: As to Parol Testimony Of Testator's Declarations In Aid Of Description Of Lands Devised: 111 S.C. 516, 99 S.E., 108; 170 S.C. 521, 171 S.E., 32; 198 S.C. 355, 17 S.E.2d 869; 176 S.C. 335, 180 S.E., 188; 31 S.C. 606, 9 S.E., 982; Jones On Evidence, 3rd. Ed., p. 689, Secs. 450, 455.
October 3, 1944.
The Court is satisfied, from a careful study of the questions presented by this appeal, that Judge Bellinger correctly disposed of all issues involved in the case. The decree of the Circuit Court, the order refusing a new trial, and the order confirming the survey and plat of the boundary line, set forth fully the history of the litigation. We are in accord with the reasoning and conclusions of Judge Bellinger in his decree and orders, and affirm the judgment of the lower Court.
Judgment affirmed.
MR. CHIEF JUSTICE BAKER and MESSRS. ASSOCIATE JUSTICES FISHBURNE, STUKES, TAYLOR, and OXNER concur.