Charleston Library Soc. v. Citizens & Southern Nat. Bank

• Decision Date: 22 December 1942
• Docket Number: 15481.
• Citation: 23 S.E.2d 362,201 S.C. 447
• Parties: CHARLESTON LIBRARY SOCIETY et al. v. CITIZENS & SOUTHERN NAT. BANK et al.
• Court: South Carolina Supreme Court

23 S.E.2d 362

201 S.C. 447

CHARLESTON LIBRARY SOCIETY et al. v. CITIZENS & SOUTHERN NAT. BANK et al.

No. 15481.

Supreme Court of South Carolina

December 22, 1942

Appeal from Common Pleas Court, of Charleston County; Wm. H Grimball, Judge.

Action by Charleston Library Society and the Trustees of the Endowment Fund of the Charleston Library Society against the Citizens and Southern National Bank etc., and another as administrators of the last will of Mary Jane Ross, deceased Medical Society of South Carolina and Presbyterian Hospital in Philadelphia for construction of will and enforcement of trust. From an adverse judgment, the Medical Society of South Carolina and Presbyterian Hospital in Philadelphia appeal.

See also, 200 S.C. 96, 20 S.E.2d 623.

Order of Judge Grimball follows:

What appears to be the only issue under the pleadings remaining undecided in the case, is whether defendants have established their defense of laches as set forth in paragraph 14 of their answer. Defendants based their argument on two grounds:

(1) That the delay for over 18 years which elapsed since the probate of the will of itself constituted laches.

(2) That plaintiffs had imputed knowledge through their officers of the pendency of the Museum suit.

As evidence of the injury or detriment to the hospitals which they claim to have resulted by reason of the alleged unreasonable delay, defendants rely on the expenditure made by them in the Museum suit amounting to $1,360.

Questions were raised by plaintiffs that there can be no issue of laches as relied upon by defendants in this case and that defendants are barred by their own actions from charging laches to the plaintiffs. The plaintiffs' contentions on these points are:

First That the hospitals are not and have not been in the possession of any of the properties involved, all of which are still in the hands of the administrators and trustees under the will and are in the course of administration pending litigation to determine conflicting rights.

Second: Laches cannot be relied on as a defense by one in pari delicto.

It appears to me that there is merit in both positions. The defendant hospitals are not and have not been in possession of any of the properties involved. The properties have been and now are in the hands of the administrators and trustees under the will of Miss Ross. There has never been any settlement of the estate as to these properties. They are still in course of administration pending litigation to determine conflicting rights therein. The Library plaintiffs at the times in question had a right to assume, as long as the trust was in course of administration or litigation, that the trustees would follow the law and the terms of the will. They were under no duty to keep watch over the trustees. Only after a settlement or some act of repudiation or abandonment by the trustees of the Museum trust, would the Library be under a duty to assert its rights. Nothing of that nature occurred until the Supreme Court, on April 29th, 1941, terminated the Museum trust and the Museum was closed. On May 22nd, 1941, the present suit was commenced. Until the determination of the preceding trust estate there was no duty on the Library plaintiffs to act.

"The doctrine of laches applies to the enforcement of an express trust when, and only when, there has been an open and unequivocal breach or repudiation of the trust, assertion of an adverse right, title or interest, or other act of hostility to the trust, by the trustee, which has been so brought home to the actual or constructive knowledge of the cestui que trust as to require him to assert his rights promptly, and, with such knowledge he has inexcusably and unreasonably delayed asserting his rights to the injury or prejudice of Defendant, or, under the circumstances, the lapse of time has been such as to give rise to a presumption of discharge or extinguishment of the trust, or such as to obscure the acts of the parties or the nature and character of the trust, as where there have been deaths of witnesses or loss of papers. *** Moreover, as the doctrine of laches ordinarily can be invoked only by one in possession against one out of possession, it cannot be interposed as a defense by one whose claim to the property has not been united with the possession; nor can the defense of laches be interposed against one who during the period of delay was under no duty or obligation to act. Subject to the foregoing rules, the applicability of the doctrine of laches to a suit for the enforcement of an express trust depends on the circumstances of each particular case." 65 C.J. Section 955, pp. 1024-1026.

"There has been unusual delay in the assertion of the rights of the plaintiffs. If there had been the slightest effort by the defendant to establish any settlement between Allen Saxton and Wylie Miller, by which settlement all claims by Wylie Miller upon Allen Saxton for his interest in the lands had been settled, a difficulty would have been presented and the staleness might have been relied upon, but such is not true in the case before us. We therefore overrule this exception." Miller v. Saxton, 75 S.C. 237, at page 247, 55 S.E. 310, at page 314. See, also, Lyerly v. Yeadon, 199 S.C. 363, at 382, 19 S.E.2d 648.

"The statute of limitations does not begin to run against the right of an interested party to maintain an action for the construction of a will until distribution of the property disposed of thereby is actually made, and mere delay in bringing such action will not bar complainant's right to maintain it on the ground of laches where the property disposed of by the will remains undistributed." 69 C.J. 881, Section 2014 (Wills).

"If a beneficiary begins his action within a reasonable time after his rights accrue he is not guilty of laches because a long time has elapsed since the death of the testator." Ibid, p. 1293, Section 2702.

In Tincher v. Arnold, 7 Cir., 1906, 147 F. 665, 7 L.R.A.,N.S., 471, 8 Ann.Cas. 917, the head note reads: "Mere delay will not debar an heir from maintaining a suit to determine the validity of a legacy where such legacy has remained in the hands of trustees in accordance with the terms of the will."

The Court said: "She further submits that no injury has resulted to any of the parties claiming the trust fund by reason of her omission to commence suit earlier, and that the ultimate rights of the parties to the trust fund remain substantially unchanged. Upon the argument the court disposed of the question of laches through the following expression by Judge Baker, in which we all concurred: The legacy is either void or valid. This is to be determined by the will. If valid, the delay is of no consequence; if void, the laches of appellant could not make it valid. In no event could it become the individual property of the trustees." Tincher v. Arnold, 7 Cir., 147 F. 665, 669, 7 L.R.A., N.S., 471, 8 Ann.Cas. 917.

Now taking up plaintiffs' second contention that the defendant hospitals are not in a position to charge laches because they are in pari delicto, we find that from the time the will was probated in 1922 to the year 1934, neither plaintiffs nor defendants did anything. Can either charge the other with delay for that period? Clearly not. There was no more duty to know and to act upon the one side than upon the other. Both are held to the same degree of diligence and in a Court of Equity neither party can charge as laches against the other a failure to know and act according to information which was as much within his range of observation as in that of the other party.

"Where both parties were equally at fault, neither can assert laches against the other; and where each of the parties seeks affirmative relief against the other in reference to the same transaction, neither may assert that the other was guilty of laches." 30 C.J.S., Equity, § 114. Also National City Bank v. International Trading Company, 1932, 167 Wash. 311, 9 P.2d 81.

In 1934 the hospitals instituted the Museum suit but omitted to make either of the Library plaintiffs a party thereto. It is scarcely equitable to permit them to visit the consequences of that omission upon the plaintiffs. To do so would allow the defendant hospitals to charge laches to plaintiffs in not discovering and intervening in a suit to which they, with better knowledge of the will and the facts, had neglected to make them parties. There could be no equity in charging plaintiffs with a greater knowledge of the indirect implications of the Museum suit than the defendant hospitals who brought that suit and failed to make the Library plaintiffs parties to it and did not even give them any notice thereof. I do not find a single circumstance of neglect or delay that defendant hospitals seek to attribute to the Library plaintiffs, which does not apply at least as much to themselves.

In my opinion under the facts of this case the defendants have no standing in equity to charge laches against the plaintiffs in the particulars stated. Both of these grounds of the plaintiffs appear to the Court to be well taken and are sustained.

Counsel for defendant Hospitals have, however, argued with great force and earnestness that, under the evidence, the affirmative defense of laches has been made out, I shall, therefore, not rest my decision solely upon what has been said as to the defendants not being in the equitable position to set up this defense but will also consider the question as made by the testimony and evidence.

Upon defendants' first point that a delay of 18 years of itself constituted laches, the latest decision of the Supreme Court which has been called to the Court's attention in which the principles governing laches have been set forth is ...