
    Tristram Bethea v. Cade Bethea.
    
      Tried before Term, 1832, Mr. Justice Earle, at Marion — Fall
    1?. B., by his Trill, directed his executors to sell <;all his lands, on geSouthsideof sweat swamp,” the proceedsUa-persons; andby another’ ciause, lauds1 * “to be »°w> distributed among certain Joining ^tracts": acres,lay entire-.side0”of'0 Littic sweatriswampd; were intersected crefk °Hdd S the first clause tractof2ooacres1 evWenco wasnot admissible to explain it.
    Who made the following report
    Tins was an action of trespass to try title. Both parties claimed under the will of Philip Bethea, and the extent of their rights depended upon the construc-^011 of the several clauses under which they derived title which Were US follows, VÍZ :
    “ It is my will and desire that at the decease of my mY executors do sell all my lands on the South West side of little PeeDee, and Sweat Swamp, giving one year’s and the money arising from such land to be equally divided between the following named persons, (naming five or six persons.)
    «It is my will and desire that the balance of my land being the land on which I now live, be sold at my wife’s decease by my executors giving two years credit and the money arising from such land, ! ^ve ^ie Showing persons. viz (naming five or six per$OüS.)
    The executors made sale of the lands as directed by the will. Under the sale made in pursuance of the first clause, the plaintiff became the purchaser. The following is the tenor of his deed from the executors. “ Know all men by these presents &c. that we (the executors, by name) did by virtue of the power vested in the executors of the said Philip Bethea by his last will and testament; after advertising &c. at public auction, bargain, sell and dispose unto Tristram Be-thea, all the lands belonging to the estate of the said Philip Bethea lying on the South West side of little Pee Dee and Sweat Swamp, containing two hundred acres more or less, &c. Now, know ye, that we (the executors) do now convey to the said 'Tristram Bethea all the right interest and claim, which the said Philip Bethea diedseized and possessed of, appertaining and belonging to the aforesaid parcel of land, subject how-«ver at all times to the trae intent and meaning of the last will of the said Philip Bethea deceased.”
    The other parcel of land sold under the second clause recited above, was purchased by the defendant, and the executors by deed, conyey to him not the balance of the lands whereon the testator lived, but the entire tracts B. and C. by metes and bounds “ subject nevertheless to the true intent and meaning of the will of Philip BetheaP
    
    The testator at the time of his death, was seized and possessed of three adjoining tracts of land A. B. andC. The tract A. was wholly on the South West side of little Pee Dee and Sweat Swamp, not in fact extending to either as aboundary, and including at one corner only a small portion of swamp, and seems to have been granted for 200 acres. The testator lived at X, on tract B., which was intersected by Sweat Swam¡> creek, and extended on the South West side of the Creek, to the margin of the swamp. The tract C. was also divided by the Sweat Swamp creek, and extended on the South West side of the little Pee Dee river, below the junction, to the margin of the swamp, and having the river for its boundary.
    The supposed trespass was at F. on the tract C. (perhaps on B. near the line) and the only question made, was, whether the plaintiff under the clause in the will and executor’s sale, made in pursuance of it, was entitled to all the lands lying on the South West side of Sweat Swamp creek, and little Pee Dee river, or whether, as was contended by the defendant, he was entitled only to the tract A. which lay entirely on the swamp. ;
    There was no evidence of the description given by the executors at the time of sale. They sold in two pieces only, and seem to have sold in reference to the terms of-the will, and have, conveyed subject to the construction which may be given to it. A witness was offered by the defendant who deposed that after: the clauses were drawn (perhaps after the will was executed) the testator was asked how he intended thu land should be sold, and that he replied “he intended each tract to hold its own.”
    I could perceive no ambiguity in the will, nor any room for construction. The terms are as free from ambiguity as any that could have been employed — - The testator in the will makes no reference to different tracts, but expressly designates the Sweat Swamp and little Pee Dee, as the dividing line between two parcels into which he divides all his lands, and which he directs to. be separately sold. Sweat swamp is.the name of the creek, a considerable stream, and I cannot doubt that the testator intended the creek and the river by the terms used, and not the margin of the swamp ; if the latter, he would have had to employ other terms “ the South West side of Sweat Swamp, “Swamp” and “little Pee Dee swamp.” There was no such ambiguity here, as to authorize the admission of. parol testimony; and were it otherwise, the testimony of the witness, or rather the expression of the testator which he proves, is far more equivocal and ambiguous than any thing in the will. I have no doubt that the testator intended to divide his lands into two parcels of nearly equal value and extent, to be sold and divided between about an equal number of his relations; and I think he has employed very adequate and appropriate expressions to convey that intention.
    Under the instructions of the Court, the Jury found for the plaintiff all the lands lying on the South West side of Sweat Swamp creek and little Pee Dee river.
    [Signed,]
    B. J. EARLE.
    The defendant appealed and moved for a new trial.
    1. Because the presiding judge had erred in his construction of the will.
    2. Because the Court rejected the parol evidence.
    Ervin, for the motion.
    Graham, contra.
   Martin J.

(sitting for O’Neall J.) delivered the opinion of the Court. — The testator under whom both the plaintiff and defendant claim the land in dispute, directs the sale of his lands. By the first clause he says “ it is my will and desire that my executors do sell all my lands on the South West side of little Pee Dee and Sweat Swamp,” and distributes the proceeds of that sale among a certain number of-persons. A tract containing 200 acres in a separate grant, lies on the South West side of little Pee Dee and Sweat Swamp, bat it extended only to the edge of the Swamp between which and the creek (a run both of Sweat Swamp and little Pee Dee) if all be included, which the plaintiff claims, there are, perhaps, nearly two hundred acres more ; under this clause of the will, the executors sold and the plaintiff purchased. The executors in their conveyance sell to the plaintiff all the lands belonging to the testator, lying on the South. West side of little Pee Dee and Sweat Swamp, containing two hundred acres, more or less. By this provision of the testator’s will, and the conveyance of the executors, the plaintiff contends he is entitled to all the land, even to the run or stream of both watercourses, and for nearly a mile above the corner of the 200 acre tract on the edge of the swamp, and to a very considerable distance down Pee Dee, below the lower corner.

■ If the plaintiff’s right to recover were to be determined on his own evidence, I think it manifest that he should fail.

By reference to the words of the will, it will be seen that the testator evidently did not intend to give the metes or bounds of the land, but intended only to identify the particular tract without reference to boundaries. The testator could not but be aware that this tract did not extend to the streams, but had its boundary ill that quarter, on the edge of the swamjfy He was equally aware that this intermediate land was embraced in other grants, and other Clauses of his will, which will be noticed hereafter. But if this construction of the will is not to prevail, then it must strike every one, tbat there is no direction in the will as to the division of the land in the sale, bnt it is to be left to the discretion of the executors, and they have .exercised that discretion, by selling and conveying to the plaintiff the tract of 200 acres. It is impossible to believe, on looking at the will and the conveyance from the executors, as well as to the plats, that they intended to sell or the plaintiff supposed he was buying any other than the 200 acre-tract, but that he is now endeavoring to avail himself of what he supposed a vague description, and thus acquire double what he had purchased, or is bound to pay for.

But when we come to look at the other parts of the will and the conveyance to • the defendant, I cannot suppose a doubt can exist on the subject. The next clause in the will after that which has been recited, is t£ the balance of my land being the land on which I now live shall be sold” &c. Under this clause the executors sold, and defendant purchased the lands marked B. and C. in the re-survey plat, not as the balance of the testator’s land after the sale to the plaintiff, but by metes and bounds, according to the original grants. This sale and conveyance are on the same day as those under which the plaintiff claims. The testator, it is true, lived on the tract B. and the trespass is on C. and it has been contended that the defendant’s purchase is confined to B. on which the testator lived, and therefore he has no claim to C. If the construction already given to the first clause of the will, as to the plaintiff’s title be correct, the objection here stated by defendant can avail him nothing, for then it would, follow that the tract C. having been sold without authority, belongs to the estate of the testator yet, and it is sufficient for the defendant’s purposes, to shew that the plaintiff has no title. But I have no doubt the executors put the true construction on the will, and were authorised to sell the tract C. as well as B. The testator after directing the sale of the land on the South West of Sweat Swamp and Pee Dee, orders the balance of his lands to be sold. These tracts B. and 0. had been granted, one more than sixty ye ars, and the other, forty-five years. He was the owner of both, and lived very near the dividing line between them for many years. To. call them both, then, “the lands on which lie lived,” was- what every man would have done under the same circumstances.

If one had been in possession and living on a body of land, consisting of half a dozen different tracts, for twenty or thirty years, and by his will directed the lands on which he lived to be sold, no one would suppose he intended to confine that direction to the separate tract, as originally granted, on which he happened to live; which might consist of only a tenth of the entire body of land, or might be in the centre of the other tracts as originally surveyed.

In any view then, which I have been able to take of this case, I think a new trial should be granted.

It may be proper however, to observe, that I entirely concur with the presiding judge in rejecting the parol evidence, offered to shew what the testator intended, by the words used in the will. There was certainly no ambiguity of that kind -which authorizes the introduction of such testimony.  