Soc v. Citizens & Southern Nat. Bank

Decision Date27 May 1942
Docket NumberNo. 15416.,15416.
Citation20 S.E.2d 623
CourtSouth Carolina Supreme Court
PartiesCHARLESTON LIBRARY SOC. et al. v. CITIZENS & SOUTHERN NAT. BANK et al.

20 S.E.2d 623

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

No. 15416.

Supreme Court of South Carolina.

May 27, 1942.


[20 S.E.2d 623]

Appeal from Common Pleas Court of Charleston County; L. D. Lide, Judge.

Action by Charleston Library Society and others against the Citizens & Southern National Bank of South Carolina and the South Carolina National Bank of Charleston, as administrators de bonis non cum testamento annexo and as trustees under the last will and testament of Mary Jane Ross, deceased, the Medical Society of South Carolina and the Presbyterian Hospital in Philadelphia, for the construction

[20 S.E.2d 624]

of a will. From an order overruling a demurrer to the complaint, the Medical Society of South Carolina and the Presbyterian Hospital in Philadelphia appeal.

Affirmed.

Order of Judge Lide follows:

This action involves the construction of the will of Miss Mary Jane Ross, late of Charleston, and now comes before the Court upon a demurrer filed by the defendants to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The demurrer was argued before me as Judge of an adjoining Circuit, the Judge of the Ninth Circuit being absent and there being no other Judge, regular or special, presiding therein. The hearing was had in Charleston on August 20, 1941, and after argument of counsel the matter was taken under advisement.

The demurrer was fully argued orally by the distinguished attorneys representing the respective parties, and they have also filed most elaborate briefs, accompanied by copies of numerous decisions, all of which I have endeavored to read with care, and reference to some of these cases will hereinafter be made. I may state here that there have been few causes more comprehensively and helpfully argued than was this one.

Miss Mary Jane Ross died on or about the 16th day of August, 1922, leaving in full force and effect her last will and testament, the original will being dated June 1, 1892, and there were several codicils. The will (including of course the codicils) was admitted to probate in the Probate Court of Charleston County on September 25, 1922, and thereafter an exemplified copy was filed in the proper office in the County of Philadelphia, State of Pennsylvania, where some of the property of the testatrix was located. Miss Ross was a lady of large means, indeed quite wealthy measured by local standards, and she was doubtless a person of much culture and refinement; and it may truly be said that she had what might be termed an antique or old fashioned sense of responsibility for the property with which she had been blessed, for she determined by her testamentary provisions to devote it almost entirely to the public good, coupled with which was a strong desire and purpose of thereby creating certain memorials to members of her family, the same in some incidental instances also to be a memorial to herself.

Her will and all the codicils drawn thereto demonstrate that the disposition of her property was a matter to which she had given much intensive study and reflection; and the will and codicils bear evidence of having been drafted by the competent hands of skilled attorneys. It is true that some vigorously contested litigation has arisen in regard to certain parts of the will, including the instant case, but it will be observed that there are no family squabbles, and that all of the litigation is for the determination of what public charity or charities may receive the benefit of the particular part of the property involved.

The questions raised by the demurrer are of course issues of law. The complaint quotes excerpts from the will and codicils and makes reference to the portions thereof directly under consideration here; but by written stipulation the entire will, including the codicils, is to be deemed and taken as a part of the complaint, the turning point of the case depending upon the construction thereof.

Clause 8 of the original will gives to the Charleston Library Society, one of the plaintiffs above named, the family homestead of the testatrix known as Number One Meeting Street in Charleston and the lot of ground appurtenant thereto, together with certain furniture therein, to be kept forever as a branch of the Society's "present main Library, " and to be known as "The Ross Memorial Branch of the Charleston Library" the same to be (quoting) "in memory of my two deceased brothers Robert Flemming Ross, M. D., and James A. Ross and I direct my said Executors to have prepared and erected in a conspicuous place a suitable tablet to that effect." The clause goes on to provide for the equipment and maintenance of this memorial branch library, and the testatrix specifically directed her executors to sell and convert into money all the real estate in Charleston "formerly belonging to my deceased mother's family;" the proceeds of such sale to be invested as an endowment fund, the income only to be used and applied to the equipment, support and maintenance of the memorial branch library.

And Miss Ross in and by her first codicil to her will, which was dated November 10, 1913, and the fourth article thereof, directed that the real and personal property devised and bequeathed as above stated

[20 S.E.2d 625]

to the Charleston Library Society should be taken and held by the corporation called "The Trustees of the Endowment Fund of the Charleston Library Society, " the other plaintiff above named, in trust for the uses and purposes therein provided, and that should the devise of her Meeting Street house and furniture and the lot appurtenant thereto fail to take effect for any cause the same should also be sold by the executors and the net proceeds paid over to the aforesaid Trustees, and that the entire fund coming into the hands of these Trustees under the terms of clause 8 of the will and this clause of the codicil should be kept separately invested and be known as "The Ross Memorial Fund of the Charleston Library Society, " and that the income thereof should be applied to the collection and equipment and support and maintenance of the library of the Charleston Library Society (quoting) "in memory of my two deceased brothers Robert Flemming Ross, M. D., and James A. Ross; provided that the said Charleston Library Society shall erect in a conspicuous place in their Library Building a suitable tablet commemorating the establishment of this Fund and denominating it as aforesaid."

In and by a later codicil to her will, the same being dated October 12, 1921, in the first paragraph thereof Miss Ross said: "I revoke the provisions contained in the eighth clause of my said will and in the fourth clause of the codicil thereto, which is dated the Tenth day of November, 1913, being the provisions relating to the disposition of my family homestead, known as No. 1 Meeting Street, in the City of Charleston, and the contents thereof as likewise the remaining real estate in the City of Charleston, formerly belonging to my deceased mother's family, it being my intention that the provisions hereinafter made with respect to the disposition of said property shall be in lieu of the provisions contained in said clause."

(In the second paragraph of this codicil she gave certain real estate known as 144 Wentworth Street in Charleston to the Charleston Branch of the American Red Cross Society, and that particular property is not involved in the controversy).

In the third paragraph of this codicil she states that she had in her residence at No. 1 Meeting Street in Charleston a collection of silver, enamels, porcelain, etc., and she says: "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;" hence she directs her executors or trustees to form a South Carolina corporation to be known as the "Trustees of the Ross Memorial, " and she gives to this corporation her family homestead "now known as Nos. 1 and 3 Meeting Street" in Charleston, together with the land and buildings appurtenant thereto and the contents thereof, with certain immaterial exceptions, in trust to keep and preserve the same as a Public Museum to be known as the Ross Memorial, and she further says: "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."

She also gives to the executors and trustees all her real estate in Charleston formerly belonging to her deceased mother's family (except the Wentworth Street property above referred to) in trust to receive and collect the rent, income and profits thereof and to apply the net income to the maintenance, support and upkeep of the Ross Memorial, "and to pay over any surplus income to The Medical Society of South Carolina for the use of the Roper Hospital in the City of Charleston."

The provisions of clause 8 of the original will and clause 4 of the codicil of November 10, 1913, will sometimes hereinafter be referred to as the Library provisions of the will of Miss Ross, and the provisions above stated in the codicil of October 12, 1921, will sometimes hereinafter be referred to as her Museum provisions.

It appears that the Medical Society of South Carolina, a South Carolina corporation (operating the Roper Hospital), and the Presbyterian Hospital in Philadelphia, a Pennsylvania corporation, heretofore instituted an action in the Court of Common Pleas for...

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