Bedford v. Citizens & Southern Nat. Bank of South Carolina
| Decision Date | 03 December 1943 |
| Docket Number | 15595. |
| Parties | BEDFORD et al. v. CITIZENS & SOUTHERN NAT. BANK OF SOUTH CAROLINA et al. |
| Court | South Carolina Supreme Court |
H L. Erckmann, Barnwell & Whaley, and Mitchell & Horlbeck, all of Charleston, for appellants.
Henry E. Davis, of Florence, for respondents.
The will of the philanthropist, Miss Mary Jane Ross, late of Charleston, has become legendary in the annals of this court. Unusual legal controversies concerning its beneficent provisions whereby her considerable fortune was distributed to the public objects of her patriotic bounty have been decided here before. It is not unfitting that these permanent records of public circulation have been made of the splendid gifts by Miss Ross to cherished institutions of her historic city, the like of which are regrettably rare in this State. To most of these former adjudications brief references will have to be made in this decision.
In that reported in Medical Soc. of South Carolina v. South Carolina Nat. Bank of Charleston, 197 S.C. 96, 14 S.E.2d 577, called the museum case, the gift by Miss Ross of several hundred thousand dollars in real and personal property to establish and maintain in perpetuity a family memorial museum was found invalid, at which time it was thought that this portion of the estate would go to the Medical Society of South Carolina (Roper Hospital of Charleston) and the Presbyterian Hospital of Philadelphia, as residuary devisees and legatees under the will, and the judgment so provided. But it was suggested by counsel for appellants in that proceeding, after rendition of the circuit decree and on their appeal to this court, by their exception XIX, that under the doctrine of dependent, relative revocation the hospitals were not the true beneficiaries, but the Charleston Library and its endowment fund, the present appellants, were. The latter will be henceforth herein referred to as the library. The important point suggested was expressly not then decided by this court for it had not been raised in the trial and, incidentally, the library was not a party to that action. All of this will more fully appear by reference to the report of the decision, cited above.
Promptly thereafter suit was brought by the library against the administrators of the estate and the hospitals wherein it prevailed under the doctrine of testamentary construction mentioned, dependent, relative (or conditional) revocation and the library was substituted as the beneficiary of this magnificent gift. The unique nature of the case, its large proportions, and the zeal of counsel engaged caused the court to hear and consider arguments twice upon the identical question,--an exceptional procedure. See the decisions reported in Charleston Library Society v. Citizens & Southern Nat. Bank, 200 S.C. 96, 20 S.E.2d 623, and Id., 201 S.C. 447, 23 S.E.2d 362.
The surprising course of legal events just mentioned gave rise to the present litigation. The able and industrious surviving counsel who represented the hospitals in these suits and the personal representatives of two of them, deceased, are the plaintiffs in the present action. Their contract for compensation with their hospital clients provided that they be paid reasonable fees from the funds recovered, patently a contingent fee, contingent upon a successful conclusion of the litigation. South Carolina Public Service Authority v. Weeks, 201 S.C. 199, 22 S.E.2d 249. Therefore, they received no compensation (from the fund finally accruing to the library) for their extraordinarily lengthy, expert and laborious professional services in (a) the prosecution for the plaintiffs in that action, their clients, to a then apparently successful termination, of the suit by the hospitals (the museum case), 197 S.C. 96, 14 S.E.2d 577, and in (b) the unsuccessful defense of the library's action, in which latter there were two appeals to this court, as has been noted, 200 S.C. 96, 20 S.E.2d 623, and 201 S.C. 447, 23 S.E.2d 362.
In these unenviable circumstances they served their complaint in this action upon the library and the administrators in which they alleged in much greater detail the facts and proceedings aforementioned, that the library is the direct beneficiary of the fund "created" by the efforts of the plaintiffs and that they are entitled as compensation for their professional services to a sum equal to twenty-five percent of the amount of the fund. The administrators, two leading banks with experienced trust departments, answered in effect that they had never employed plaintiffs or received any benefit from their services and that they had refused their demand for compensation for they had their own counsel. The library demurred and answered, but it is thought unnecessary to summarize even the contents of these pleadings. Suffice it to say that they raise the issues which are considered controlling of the appeal and which are discussed hereinafter. The demurrer was informally overruled and the testimony taken by the court without a jury and without a reference, whereupon, after consideration, a very long decree was filed in which it was held that plaintiffs should be paid a reasonable fee from the fund for their services, which twenty-five percent thereof was found to be, and judgment was ordered to be entered accordingly. The administrators and the library have appealed upon numerous exceptions which make the controlling issues which will be discussed. Separate treatment of them is not deemed necessary. The same is true of the "sustaining grounds" submitted by respondents.
The case presented, in legal implications, is about as follows: A successfully sued B for recovery of the fund; C then sued A for recovery of the same fund and also succeeded; A's attorneys, successful in their original suit but failing in their efforts to retain the fund for their clients against C's claim (the latter represented by other attorneys), now seek to collect a fee from the fund over the opposition of C who has his own attorneys to pay. The stating of the question by this simple analogy seems to us to undoubtedly answer it against the contention of these attorneys (the respondents) and in favor of the position of the appellants. Similarly, this result is required by application of the principles defined in the precedents which will be briefly discussed. Many cases from other state and federal courts were cited in the decree, but none of them parallels in facts the case at bar, so little help has been derived from consideration of them, which however, has been painstakingly had.
The subject is not an obscure one in this jurisdiction. It was lucidly explored in the case of Petition of Crum in 1941, 196 S.C. 528, 14 S.E.2d 21. The full discussion in the opinion and the citation of numerous applicable authorities make a repetition of them now unnecessary. In that controversy Mr Crum was held entitled to the allowance of a fee for professional services out of the whole of three devises in which contest for their recovery he had actively and successfully represented the beneficiaries of one while those of the others, though parties, went unrepresented, sat back and shared the benefits. The facts of the case were quite different from this. Vital distinctions are disclosed by even a casual comparison. Were this similar, the hospitals and the library (the latter without counsel) would have to have shared the fund resulting from the invalidating of the museum, it must have been...
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Sullivan v. Brown (In re Estate of Kay)
...S.E.2d at 23. Moreover, if the parties' interests are adverse, the doctrine does not apply. Bedford v. Citizens & S. Nat'l Bank of S.C. , 203 S.C. 507, 515, 28 S.E.2d 405, 407 (1943). Significantly, recovery under the common fund doctrine is subject to abuse and should be exercised cautious......