Medical Soc. of South Carolina v. South Carolina Nat. Bank of Charleston

• Decision Date: 29 April 1941
• Docket Number: 15249.
• Citation: 14 S.E.2d 577,197 S.C. 96
• Parties: MEDICAL SOC. OF SOUTH CAROLINA et al. v. SOUTH CAROLINA NAT. BANK OF CHARLESTON et al.
• Court: South Carolina Supreme Court

14 S.E.2d 577

197 S.C. 96

MEDICAL SOC. OF SOUTH CAROLINA et al. v. SOUTH CAROLINA NAT. BANK OF CHARLESTON et al.

No. 15249.

Supreme Court of South Carolina

April 29, 1941

H L. Erckmann and Mitchell & Horlbeck, all of Charleston for appellants.

Hagood Rivers & Young, of Charleston, for respondents.

STUKES Justice.

This case was in this court before and report of it will be found under the title of Ex parte Carolina Art Association (Medical Society of South Carolina, et al. v. Huger, et al.) at 185 S.C. 137, 193 S.E. 642. The question there determined was solely upon the right of Carolina Art Association to intervene, which was answered in the negative. It may not be successfully contended that that decision of this court bound the parties to the action or the Circuit Court on any other issue or as to what issues were made by the pleadings. This observation anticipates an adverse answer to appellants' second question in which they take the position that by the pleadings the plaintiffs were confined to the single issue of the failure of the attempted trust for lack of sufficient funds to support it; more will be later said as to this.

The questioned codicil to the will of Miss Ross in addition to appointing a self-perpetuating Board of Trustees to operate the "Ross Memorial" Museum, provided as follows:

"I have in my residence, No. 1 Meeting Street, in the City of Charleston, S.C., a collection of silver, enamels, porcelain, jade, bronzes, carpets, rugs, pictures, engravings, books, laces, kashmir shawls, and other articles of interest, some of which are heirlooms, and others, which I have collected during my years of travel. Believing that this collection, which I shall hereafter, for convenience, refer to as my art collection, will be a matter of public interest, it is my desire that the same shall be maintained intact and that suitable provision may be made for the care and exhibition thereof. To that end I direct my Executors or trustees, as soon as conveniently may be after my decease, to cause to be formed under the laws of the State of South Carolina a Corporation, which shall be known as the Trustees of The Ross Memorial ***.

"I give, devise and bequeath to said Corporation my family homestead, now known as Nos. 1 and 3 Meeting Street at the Northwest corner of South Battery, in the City of Charleston, South Carolina, together with the land and buildings appurtenant thereto and all the contents thereof (except the chamber furniture, bedding, linens, and table service, such as china, glass, cutlery and silver plate), and together also with any other articles forming part of my art collection heretofore referred to, which may happen not to be contained in said premises at the time of my death In Trust however to keep and preserve the same as a Public Museum to be known as the Ross Memorial, in which my said art collection shall be permanently kept and cared for, to be open for exhibition to the public on such terms and upon such reasonable regulations as the Board of Trustees of said Corporation may from time to time prescribe ***. And my art collection shall be kept intact and not added to, nor shall any other collection be housed or displayed in said buildings, nor shall my art collection be removed therefrom except in case of temporary removal made necessary by reason of hazard from fire or other cause. It is my wish that the homestead shall be retained pretty much as it was in my lifetime, except for the addition which I have hereinafter directed to be made, and that the said property shall be maintained for all time as a Museum for the care and exhibition of my art collection as a memorial to my two deceased brothers, Robert Flemming Ross, M. D., and Lieut. James Alexander Ross, and I direct my Executors to have prepared and erected in a conspicuous place in the building, a suitable tablet to that effect."

Thereafter in the codicil was the devise of certain real estate to her executors, the income from which was directed to be used for the maintenance and support of the "Ross Memorial," including repairs, with the surplus of such income to The Medical Society of South Carolina for the use of Roper Hospital, with power of sale and reinvestment. It was established at one of the references that as of about March, 1938, the real estate so devised was of the value of $216,400 and securities and cash were in hand to the amount of about $47,000.

The testatrix died in 1922 and her will and codicils were admitted to probate on September 25th, of that year and thereafter Alfred Huger, Esq., distinguished member of the Charleston bar, became the sole executor, and it was against him as such that this action was commenced in September, 1934. After his death pending the action the two banks now named as defendants in his stead were appointed as administrators and trustees of the will.

In the complaint it was alleged that the museum and memorial had never been opened and, upon information and belief, that there was and would be insufficient income from the property to operate the memorial museum, on which account the devise and bequest for that purpose have become ineffectual and lapsed. In paragraphs numbered 18 and 19 of the complaint it was further and separately alleged that the devise and bequest relating to the museum have become ineffectual and have failed and the property therein involved has become a part of the residuary estate of which the plaintiffs are the beneficiaries under the will and codicils. The prayer is general that the provisions for the museum be adjudged to have failed and become ineffectual and that the property involved be declared a part of the residuary estate, etc.

An order of reference to the master provided that he only take and report the testimony. Several references were held upon widely separated dates, the delay being at least in part due to the suspension of references during the pendency of the unsuccessful attempt of the Carolina Art Association to intervene, referred to above. The record indicates that plaintiffs' counsel were diligent in their effort to hasten the proceeding.

At the first reference held by the master on December 3, 1935, an expert in antiques of Philadelphia was placed upon the stand by plaintiffs and testified that he had made a sufficient inspection of the articles of Miss Ross which she directed should constitute the contents of the proposed museum and that only about two to three per cent of such articles are of museum value in which the public would have interest and that the exhibition of the articles would reflect upon the high cultural reputation of the city of Charleston, and the taste, judgment and knowledge of its people. To this and other similar testimony the defendants objected upon grounds including that it was not relevant or responsive to any issue made by the pleadings and by their exceptions and their second "question involved," referred to above, clearly present this legal issue.

It has been noted that objection was made to this testimony at the first reference in December, 1935. At the next, held on January 30, 1937, the director of the Charleston Museum, prepared for such position by study in most of the outstanding museums of Europe and the eastern United States, testified to the same effect over defendants' objection made upon the same ground, that it would be of no use to the cultural reputation of Charleston and that it would not be proper to exhibit the Ross collection to students as a museum. However, this witness placed the percentage of the articles usable as museum pieces at over ten. Incidentally, it should be said that this witness declined plaintiffs' request to testify and that he attended only under subpoena and counsel's threat of a jail sentence for contempt should he continue to refuse.

At the last-mentioned reference, in January, 1937, the director of the Carolina Art Association, which operates the Gibbes Art Gallery in Charleston, also testified over the same objection of defendants' counsel, that the matter was not an...