Opinion
15416
May 27, 1942.
Before LIDE, J., Charleston County, September, 1941. Affirmed.
Action by Charleston Library Society and others against the Citizens and 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 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.
The order of Hon. L.D. Lide, Circuit Judge, required to be reported, 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, 1933, 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 of 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 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 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 Charleston County against the administrators de bonis non with the will annexed, and as trustees under the will of Miss Ross, and the trustees of the Ross Memorial, a South Carolina corporation, seeking an adjudication that the Museum provisions of the will of Miss Ross had failed; and the judgment of the Supreme Court of the State of South Carolina, affirming the judgment of the Circuit Court to that effect, was filed April 29, 1941; the opinion being reported in Medical Soc. of South Carolina v. South Carolina Nat. Bank of Charleston, 197 S.C. 96, 14 S.E.2d 577, 581. The Court held that the evidence adduced before the Circuit Court that only a small percentage of the articles referred to by Miss Ross was of museum value, and that the maintenance of such a museum would detract from the cultural reputation of the city, and would be a detriment rather than a benefit to the public, was sufficient under the circumstances to sustain the finding of the trial Judge that the trust provided for was not a charitable trust such as could be carried out under the exception to the rule against perpetuities; as will fully appear by reference to the able and discriminating opinion rendered by Mr. Justice Stukes. It is quite apparent that the Court was entirely sympathetic with the desire of the testatrix thereby to confer a public benefit, but found that under the evidence she was mistaken in the belief, as expressed by her, that the art collection would be a matter of public interest and hence of cultural benefit. Quoting from the opinion of Mr. Justice Stukes: "In this controversy the lower court has decided upon ample, competent testimony that the carrying out of the expressed wishes of the testatrix will not confer a public benefit and is, therefore, not charity; in fact the weight of the evidence is to the effect that a detriment to the public would result. We agree with this finding and conclusion."
After the judgment of the Supreme Court in that case was remitted to the Court below, the instant action was instituted, the complaint having been filed on June 2, 1941; and the complaint herein alleges the judgment of the Supreme Court in the cause aforesaid; and further alleges that neither of the plaintiffs in this action was a party to the former suit, nor was anything decided therein affecting or impairing their rights under the will and codicils of Miss Ross; and that in her codicil of October 12, 1921, she did not revoke and annual the provisions in favor of plaintiffs, as contained in the eighth clause of her will and the fourth clause of her codicil dated November 10, 1913, as an absolute revocation, but made a dependant or relative revocation only of the same solely for the purpose of substituting therefor the Museum provisions which have failed by reason of the judgment of the Court, the testatrix having expressed her intention specifically that the Museum provisions of the codicil of October 12, 1921, with respect to the disposition of this part of her property should be in lieu of the provisions originally made in favor of these plaintiffs, and that, therefore, the substituted provisions are ipso facto restored and made effective; and the judgment of the Court to that end is sought.
Repeating — the plaintiffs allege and contend that the Library provisions are restored under the doctrine or principle of law long recognized by the Courts and sometimes referred to as the doctrine of dependent relative revocation. Hence the principal issue raised by the demurrer is that this doctrine or rule of law properly construed is not controlling under the facts of the instant case, and moreover, that the matter has already been determined by the Court in the former litigation. This, of course, is a very general statement of the purport of the demurrer, and certain specific points therein made will hereinafter be referred to.
The phrase "dependent relative revocation," if the words are analyzed, technically and accurately indicates the scope of the rule, but perhaps a simpler descriptive phrase would be "conditional revocation." The rule is, I think, correctly stated in the following quotation from 68 C.J., 799: "While the intention to revoke may be conditional, if the revocation is subject to a condition which is not fulfiled the revocation does not take effect. This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old. and the new disposition is not made, or, it made, fails of effect for some reason."
Corpus Juris cites in support of the quoted excerpt cases from many of the States in the Union, including our own, and a rather long list of cases from England. The South Carolina cases cited include one of the most important American cases on the subject, to wit, Pringle v. McPherson's Executors, 2 Brev., 279, 3 Am. Dec., 713, to which extended reference will hereinafter be made. The other South Carolina case cited was Johnson v. Brailsford, 2 Nott McC., 272, 10 Am. Dec., 601, which will also be referred to later.
The doctrine of dependent relative revocation is also fully treated in 28 R.C.L., and I quote the following from pages 182, 183, of that volume: "The doctrine is one of presumed intention and the theory is that the original disposition would not have been revoked unless the new could be given effect. The revocation is considered as having been made on the mistaken belief in a certain fact and the courts hold that it is immaterial whether the mistake under which the act of revocation was done were one of fact or law."
This rule, principle or doctrine creates no artificial presumptions and is not a rule of law as distinguished from a principle of construction, but is rather the formulated expression of the result of the experience of the Courts in finding and effectuating the intention of the will of the testator. The rule is quite an old one, having been declared more than 200 years ago, and while of course there have been some developments in the course of time the fundamental and essential elements remain the same. In other words, it is an aid and guide to the Court in finding out what the testator intended; to be applied indeed with caution but to be used in furtherance of the testamentary intention. And the Court said in the Pringle case, supra: "The intention of the testator is the law of wills." To find that intention as applied to the will of Miss Ross we must of course take the will, including the codicils, by the four corners, and read the same in the light of the attending circumstances to ascertain what was in the mind of the testatrix, giving attention and care to the words of the will at each and every point of it, "guided by such rules of law as experience has shown to be useful in seeking such intention." Snider v. Robertson, 9 S.C. 213; Scaife v. Thomson, 15 S.C. 337.
In the recent case of Kennedy v. Kennedy, 190 S.C. 53, 2 S.E.2d 33, 35, the Court, speaking through the late Chief Justice Stabler, quotes with approval the sound and instructive statement from 28 R.C.L., 218, as follows: "The intention of the testator need not be declared in express terms in the will, but it is sufficient if the intention can be clearly inferred from particular provisions of the will, and from its general scope and import. The Courts will seize upon the slightest indications of that intention which can be found in the will to determine the real objects and subjects of the testator's bounty. The inference as to the intent need not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in the mind of the Court, and must not rest on mere conjecture."
Did Miss Ross intend by the Museum provisions to make an absolute revocation of the Library provisions, or was her intention merely to substitute the Museum provisions for the same paramount purposes in view, so that the revocation of the Library provisions was dependent and relative and thus conditional upon the validity and effectiveness of the Museum provisions? And would Miss Ross, if she had been informed that the Museum provisions could not be given effect under the law, have still desired a revocation of the Library provisions, so that the hospitals, which would receive under other provisions of her will about three-fourths of her estate, would also get this part of it and thus completely frustrate her expressed intention to make a bequest of public cultural value as a memorial to her deceased brothers for whom no other memorial is provided in the will or codicils? The latter question states the proper criterion, and the correct answers to both questions seem obvious. After mature reflection and prolonged study of the entire will and codicils, in the light of the many cases cited by counsel and disclosed by my own investigation, my conclusion is that the intention of Miss Ross would be disregarded and defeated if the rule of conditional revocation above referred to be not applied. Indeed, it seems to me that this is a typical case for its application, and I shall endeavor to give my reasons for so holding as briefly as may be practicable.
Miss Ross made several testamentary gifts to relatives and other individuals, none of them relatively large in amount, and many of which were subsequently revoked because of the death of the beneficiaries. Evidently she outlived the members of her immediate family, and as I have already indicated, she had determined to devote the bulk of her estate to public charities by way of memorials.
In Clause 9 of her original will she gave $20,000.00 to the Presbyterian Hospital in Philadelphia in memory of her mother, her aunt, her sister and herself.
In Clause 11 of her original will she gave to the South Carolina Historical Society and to the Historical Society of Pennsylvania $25,000.00 each, the same to be known as "The Ross Memorial Funds" of these societies respectively.
In Clause 12 of the original will she gave to the Roper Hospital in Charleston the sum of $100,000.00 for "the Ross-Henry branch of the Roper Hospital," in memory of her mother, her aunt, her uncle, her sister, and herself.
These clauses of the original will were not changed by any codicil, and the residuary clause covering "the rest, residue and remainder" of her estate vests it in equal shares in the Presbyterian Hospital in Philadelphia and the trustees of the Roper Hospital in Charleston for "the Ross-Henry Memorial Fund."
It appears from the allegations of the complaint that these two hospitals have received, in addition to the special legacies aggregating $120,000.00, the sum of $755,884.21, making a total for hospital purposes of $875,884.21. It thus appears that certainly quite a large percentage of her estate (counsel for plaintiffs say between three-fourths and four-fifths) was devoted to hospital purposes; and it also appears that the value of the property involved in the present litigation is somewhat in excess of $250,000.00, which, as counsel for plaintiffs suggest, amounts to between one-fifth and one-fourth of the estate. It may, therefore, be inferred that Miss Ross had in mind at all times devoting approximately three-fourths of her estate to the public benefit by her gifts to these hospitals for the memorials mentioned; and that she also intended to give approximately one-fourth of her estate as a public benevolence in the interest of culture and education as a memorial to her deceased brothers. And aside from the Library provisions and Museum provisions of her will nothing was given for education or culture save the comparatively small amounts given to the Historical Societies. If then the contentions of defendants here should be sustained the result would be that the two hospitals in question would receive almost the entire bulk of her estate, and her cherished purpose of giving something substantial of cultural and educational value would be entirely frustrated as well as her anxious desire to create a perpetual memorial to her two deceased brothers who evidently had a large place in her affectionate memory. I do not think such a result is warranted by the terms of the will. (It is true, as pointed out by Mr. Justice Stukes, the perpetuation of the family name has been accomplished by another provision of the will, but it should be remembered that there is no other provision by way of a memorial to the two deceased brothers.)
Indeed, I think she made it perfectly plain from her codicil of October 12, 1921, that she continued to have in mind the same dominant purpose with reference to about one-fourth of her estate, to wit, that it shall go for a cultural and educational use in lieu of the Library provisions, which were also cultural and educational because she thought it would be more beneficial to the public; but the memorial provisions were an inseparable part of the plan, and both under the Library provisions and the Museum provisions it was plainly stipulated that suitable tablets should be erected in conspicuous places to show the memorial character of these public gifts. By reference to the first paragraph of this codicil the conditional character of the revocation is plainly indicated. In other words, she revokes the Library provisions stating that it was her intention that the Museum provisions should be in lieu thereof. Under the established rule of law, which merely effectuates the intention of the testator, the Museum provisions having failed because of a mistake of fact the Library provisions are automatically reinstated to prevent the frustration of the intention of the testatrix, but even if the mistake be considered one of law this would have no effect on the rule. 28 R.C.L., 183.
I think my conclusions above suggested are sustained by the South Carolina cases in point and by the weight of authority both in England and America. It will of course be impracticable to review all of the cases, but I shall endeavor to refer to the more important ones, including a few authorities in other jurisdictions contra to some of the views expressed by me.
I am of opinion that our old case of Pringle v. McPherson's Executors, 2 Brev., 279, 3 Am. Dec., 713, a Charleston case decided by the Constitutional Court in 1809, correctly lays down the principles governing the instant case, except that it seems to me that the intention of the testatrix is decidedly clearer in the instant case because not dependent upon mere circumstances. In the Pringle case the testator had made a will giving 300 acres of a certain tract of land to his daughter Elizabeth, and he gave the rest of this tract to his younger daughters Nancy and Susan specifically excepting the 300 acres already devised to Elizabeth. Some time after the execution of this will the testator scratched out with pen and ink the clause devising the 300 acres to Elizabeth and also the clause excepting the 300 acres from the devise of the rest of the tract to Nancy and Susan. The Court held that the testator must have intended to revoke the devise to Elizabeth and so increase the devise to the younger daughters by 300 acres, but this intention was ineffective since it amounted to an additional devise without a republication of the will. But although the obliteration of the clause would have been sufficient revocation under ordinary circumstances, the Court looked to the real intention of the testator and found that he intended to revoke these clauses only on the condition that the 300 acres should go to the younger daughters and since this was ineffective under the law the revocation was likewise ineffectual. As the Court well says, the testator certainly did not intend to revoke the gift to Elizabeth in order that the subject of it might pass to his heirs in general. In other words, while he had decided to give the whole of the land to Nancy and Susan in preference to Elizabeth he preferred for Elizabeth to have it rather than the rest of his heirs. I quote the following from the very interesting opinion rendered in this case: "A testator deliberately, and solemnly, executes his will. It, at the time, contains the expression of his entire wishes relative to his estate. Some event, unlooked for at the time, occurs, which renders a modification of his arrangements desirable. To obtain this object, and this alone, he is disposed to revoke his first will. He performs an act, deemed by himself sufficient for this purpose, but which, from the operation of technical rules, of which he is ignorant, fails to produce the effect. Could it be said, that his will was regarded in a rule which declares this act of revocation incompetent to accomplish the object, for which alone he was disposed to change his first will, and yet competent to revoke his first will altogether? Because he has unsuccessfully attempted to better the arrangements of his estate, he shall have his arrangements set aside altogether! Such a principle is equally unreasonable, and unlawful. A great variety of cases, to be collected from the books, very clearly settle this doctrine, as reason and common sense would seem to require. In the case of Onions v. Tysen ( Tyrer), 1 P. Wms., 345, one duly executed, as the law directs, his will, devising his lands to trustees, to several uses. He some time afterwards made another will, devising them to other trustees, but to the same uses; and in this will there was a clause revoking, expressly, all former wills. This will, though subscribed by the testator, and attested by three witnesses, yet they did not subscribe their names in the presence of the testator, and consequently void as to the lands. Yet it was contended it was a good revocation, so as to let in the heir at law. But it was determined that cancelling a former will, under a presumption that a latter will is good, which proves void, shall not operate as a revocation of the first, for where the second devisee takes nothing, the first shall lose nothing. The act of cancelling is an equivocal act, which, to operate as a revocation, must be done animo revocandi. But, it the same case, it appears, where the second will barely revokes the first, without making any other disposition of the property devised, it shall be good, if executed agreeably to law. In the present case I have already admitted, that the obliteration of these clauses amount to a revocation of the devise they contained in them, did not the whole case furnish evidence that another disposition of the estate was intended by the testator to have been effected, which has failed."
In this case the purported revocation was by the act of obliteration, while in the case at bar there is a subsequent codicil. But it will be noted in the foregoing excerpt from the Pringle case that reference is to be made to the ancient English case of Onions v. Tyrer, which seems to be the first case where the doctrine in question was evolved and announced, and this was decided in 1716. The attempted revocation was there made by a later will, and the clause of revocation was sufficient under the law as such but was not effective as another disposition of the estate because not properly witnessed, since the witnesses did not subscribe their names in the presence of the testator. But the Court rightly held that the revocation contained in the second will was conditioned upon the validity of the disposition of the estate therein contained and hence the original will was reinstated. It is true that the Onions case did not involve a later will or codicil duly and properly executed in every respect, but it does not seem to me that this should in any way affect the application of the doctrine of dependent relative revocation when the matter is considered with reference to the intention of the testatrix, and that the distinction insisted upon by counsel for defendants is artificial and unsound. This particular point will be further considered later.
In the case of Johnson v. Brailsford, 2 Nott McC., 272, 10 Am. Dec., 601, it was held that where a testator had torn off the seals of a will, interlined it, etc., animo revocandi, and it appears he afterwards intended to make another will which he never executed, this will not reestablish the will; and this decision is manifestly correct. The Court refers to the case of Onions v. Tyrer and the Pringle case, and states that there the revocation and substitution were one entire act, while in the case then at bar the obliteration and the directions for a new will did not constitute a single declaration. In other words, there being no evidence of a conditional revocation the Court held that the revocation was absolute and that it was so intended.
The later case of Godbold v. Vance, 14 S.C. 458, tends strongly in my judgment to confirm the rule laid down in the Pringle case. The testator made a will in favor of his wife for certain property including the tract of land on which he lived; but the testator's wife objected that the provision was revocable, and so to satisfy her he executed a deed to her for the same property. After his death it was insisted that the paper called a deed was really testamentary and ineffective, but the Court rejected the theory saying: "If the provision of the deed should fail in whole or in part, it would be in violation of the terms of the deed itself to make that which was ineffectual for the purpose intended effective only in defeating another provision for the same purpose. [Citing among other cases, the Pringle case] Revocation is a question of intention." (Emphasis added.)
There are some other South Carolina cases which are tangent to the question involved here, including the old case of Taylor v. Taylor, 2 N. McC., 482, but the cases above discussed are, I think, the only South Carolina cases of importance in this connection.
It is earnestly and ably contended by counsel for the defendants, as I have already suggested, that the rule of conditional revocation should not apply here because in this case the codicil of October 12, 1921, was duly executed and revokes the Library provisions; and it is further contended that the rule does not apply where the substituted provisions are ineffectual because of something dehors the instrument. In other words, the argument is that the will of Miss Ross as to the museum was valid on its face but was held ineffectual because of the fact that her art collection was not of museum value, and therefore the law against perpetuities operates to defeat it; this being something entirely apart from the will itself, and bearing no relation to a case where the instrument was defective on its face. Distinctions of this character have been made in some cases, but viewing the matter in the light of testamentary intention I find it impossible to discern any logical support for such distinctions.
It is true that in the somewhat frequently cited English case of Tupper v. Tupper, Chancery 1855, 1 K. J., 665, the Court held that while it was difficult to make a satisfactory distinction between the old case of Onions v. Tyrer and those cases in which the gift fails for want of capacity in the devisee to take (that is to say, something dehors the will), yet it endeavored to draw such an arbitrary distinction. However, this holding is definitely repudiated by later and better considered cases.
In the noted case of Ward v. Van Der Loeff, House of Lords (1924), A.C., 653, (Costigan's Cases on Wills, 2nd Ed., 393), which was a case heard before Lord Chancellor Haldane, Viscount Cave, Lord Dunedin, Lord Phillimore and Lord Blanesburgh, the Court repudiated the theory that the revocation should be considered absolute because the new settlement or provision was ineffective by reason of some inability on the part of the taker or some incompetence in the interest created. Lord Dunedin says: "`It was, however, urged on behalf of the respondent that Kirkpatrick's case depended on the fact that the inefficiency of the new settlement was due to the nonefficiency of the words of conveyance, and that a different result would follow where the inefficiency depends on some inability on the part of the taker or some incompetence in the interest created. I do not think this is a sound distinction. It would be curious if it were so. The question obviously depends on the intention of the testator as gathered from the words he has used, and it is difficult to understand how that intention can be varied accordingly as the inefficiency of the new arrangement depends on whether he has not legally carried out his intention by the words he has used or whether the law has made impossible the things he was trying to do. But as a matter of fact there were many cases quoted before their Lordships who decided Kirkpatrick's case which give instances of the inefficiency being of the latter sort.'"
Lord Phillimore also says: "I cannot, however, assent to the second rule stated by Mr. Jarman in his work on Wills. He states his rule in the following words: `If the second devise fails, not from the infirmity of the instrument, but from the incapacity of the devisee, the prior devise is revoked.' (Ed., 1910, pp. 169, 170). Great as is the authority of the writer, I would rather subscribe to the criticism of Mr. Theobald in his work on Wills. He says: `This is a mere distinction of fact, and not of principle. It may even be doubted whether it reconciles the cases in fact. Page 746."
(It may be of interest to recall that Lord Chancellor Haldane attended the meeting of the American Bar Association in Montreal in 1913 and there delivered an address of historic importance, especially in view of the subsequent World War which commenced in 1914. Viscount Cave was also, as I remember, a distinguished guest of the American Bar Association, but at a much later date.)
One of the cases strongly relied on by counsel for the defendants is the old case of Hairston v. Hairston, 30 Miss., 276, decided in December, 1855. In this case the testator revoked certain legacies and made a slave the beneficiary in place of the former beneficiaries, and the revoking instrument was properly executed and admitted to probate. The gift to the slave, however, was void under the law of Mississippi which prevented a slave from taking property; but the Court held that the revocation was void because of some circumstances dehors the instrument. The Court was of the opinion that the doctrine of conditional revocation should not be applied to a case of express revocation by will duly executed according to the statute, and the effect of this opinion would be to limit the doctrine to a case where there was an act of obliteration or cancellation, but with the greatest respect to the Mississippi Court, such a distinction does not seem to me to be sound in principle, nor does it accord with the reasoning of the Constitutional Court in the old Pringle case, although that was an obliteration case. And while I have no means of determining with mathematical precision the weight of authority outside of the State, I think the citation of case in the note to 68 C.J., 800, indicates that the Hairston case is out of line with the prevailing trend of authority. See also the annotation in 1 Ann. Cas., 610. And it is stated in substance in 28 R.C.L., 183, that the "better opinion" appears to be that even when a will executed according to law contains an express clause of revocation of a former will the doctrine of dependent relative revocation is still applicable if the language used, in the light of the attendant circumstances, indicates that the testator intended to revoke the former will only for the purpose of giving effect to the later one and if for any cause effect cannot be given to the later one, then the former will remains effective.
Among some other cases relied on by counsel for the defendants is the Pennsylvania case of In re Melville's Estate, 245 Pa., 318, 91 A., 679, L.R.A., 1916-C, 98, wherein the Court held that where the failure of the dispositive part of a revoking instrument is due to a defect in the instrument, the revocation is inoperative, but where such failure occurs because of extrinsic circumstances the revocation will prevail. The decision in this case rests in part upon the words quoted from Jarman on Wills mentioned in Lord Phillimore's decision supra, and therein held unsound. The dictum of the learned text writer is indeed to the effect that if the second devise fails not from the infirmity of the instrument but from the incapacity of the devisee a prior devise is revoked, but such dictum fails to take account of the fundamental purpose of the rule to effectuate the testator's intention.
An interesting English case very much in point is In re Bernard's Settlement, 1916, 1 Chancery Reports, 552. The testatrix there expressly revoked an appointment made in her will and substituted for it in a duly executed codicil a different appointment which was held void because of the rule against perpetuities. The Court found it reasonably clear that the testatrix intended to revoke only for the purpose of giving effect to the substituted provisions of the codicil, and hence held that when these provisions failed the revocation failed also. I quote the following from the opinion of Mr. Justice Neville: "It does not seem to me that the real point is determined by the question of whether there are words of direct revocation or whether such words are absent. It seems to me that it would be far too narrow a view to apply any such rule in construing documents of this kind, because whether you have a gift in lieu of a previous appointment, either by necessary implication or by direct words, you must revoke the original appointment if you are to give effect to the second; and, therefore, whether the testator says in so many words `I do revoke,' or whether he uses words which necessarily involve revocation, the result is the same, and that it would not be a wise distinction to make, except in so far as direct words may be some guide to what the intention of the testator was. I think the question which the Court has to determine is: By the second appointment did the testator intend in any case to revoke the prior appointment or did he really only intend to revoke the prior appointment for the purpose of carrying out the alteration which he had made in his disposition, and (although probably it had not occurred to his mind) without having any intention of revoking the previous gift except for the purpose of the altered appointment."
But the most thorough and comprehensive case dealing with the doctrine of dependent relative revocation is an American case of recent date, to wit, the Iowa case of Blackford v. Anderson, 226 Iowa, 1138, 286 N.W., 735, 746, decide June 20, 1939. The opinion in this case, which was delivered by Mr. Justice Bliss, is really a learned treatise on the whole subject-matter, replete with careful analysis and reasoning, and citing a wealth of authority both English and American. The facts of the case also make it quite pertinent to the case at bar. The views of the Iowa Court are well expressed in the following quotation from the opinion: "In its [the doctrine's] earlier application, as noted in the quotation, it was confined to revocations effected by some physical act upon the documents itself, such as cancellation; obliteration, destruction, or like means. The reason being that such acts may be equivocal, since they may occur inadvertently, or unintentionally, and ought to be subject to explanation. But since there is no difference in principle between a revocation effected by a physical act deliberately done, and revocation effected by a later document, the application of the doctrine has been extended to purported revocations of earlier wills, wholly or partially, by later written documents. In a number of the earlier decisions a distinction has been made between those instances in which the later instrument was ineffective in its disposition because of defective execution, and those instances where the later will was inoperative because of the incapacity of the taker, or the lack of power or authority in the testator, or for other reasons `dehors' the will (outside of, unconnected with), as the pedant puts it. On logical reason, sound principles, and the weight of authority, it is our judgment that there is no justification for these alleged distinctions. The basis for the doctrine of dependent relative revocation, or conditional or mistaken revocation, as it is sometimes called, is that there was never any revocation of the earlier instrument, or real intention to revoke, because of a mental misconception of the effect of his act, on account of mistake, or ignorance, or some other error."
While the learned counsel for the defendants of course recognize that the doctrine of dependant relative revocation, or conditional revocation, has been applied in numerous cases, they contend that the rationale of the rule is to prevent intestacy, and that the same is therefore not applicable to the will of Miss Ross, for admittedly there will be no intestacy regardless of whether the rule is applied or not. But I do not so read the decisions. It is quite true that while the prevention of intestacy has been a factor in many of the cases this is a mere circumstance to be considered along with the other facts and circumstances in determining the testamentary intention, but it cannot be questioned that the rule that intestacy will be avoided if possible is a mere rule of construction and is subservient to the underlying principle that the intention of the testator must be ascertained and made effective if lawful and possible. Blackford v. Anderson, supra. The mere fact that there is a residuary clause or other clause to prevent intestacy does not in itself show that a particular devise or bequest was intended by the testatrix to pass under the residuary clause. Indeed, I think it is quite clear that Miss Ross, if she had been informed that the Museum provisions of her codicil were ineffective, would not have intended that the property should go under the residuary clause which would thus defeat her purpose to provide a public charity for culture or education, together with a memorial to her deceased brothers, but rather that the Library provisions should be restored, the condition on which they had been revoked having failed.
But it is earnestly contended by the defendants, and this is one of the specific grounds of the demurrer, that the will and codicils forming a part thereof specifically provided that if any devise or bequest failed, lapsed or was void or for any reason ineffectual the property affected thereby should become a part of her residuary estate. In this connection, the defendants rely on Paragraph 11 of the codicil dated November 10, 1913, the same being as follows: "If any of the devises or bequests made in my said will or in this codicil thereto shall fail or prove to be void or for any reason ineffectual then and in every such case it is my will that the property which was intended to be disposed of by same shall fall into and become part of my residuary estate and be disposed of according to the provisions of the residuary clause of my said will and under no circumstances shall it be taken or deemed that I have died intestate in respect thereto. I intend and direct that my said Will and this Codicil thereto shall dispose of all property of which I may die seized or possessed and also all property which at the time of my death I may have power to dispose of by the provisions of or under any Deed or Will or otherwise it being my desire and intention not to die intestate as to any property which I may possess or over which I may have power of disposition." However, it will be observed that this paragraph refers to any of the devises or bequests made "in my said will or in this Codicil thereto." (Emphasis added.)
Since the Museum provisions are found only in the codicil of October 12, 1921, made nearly eight years after the codicil of November 10, 1913, it is certainly not covered in terms by the language above quoted. Manifestly Miss Ross, in this 1913 codicil, could not have had in mind the Museum provisions which she did not create until about eight years later. It is of course quite true that the original will and all the codicils taken together constitute the last will and testament of the testatrix, and it is argued that because of this the 1913 provisions will be construed as relating even to the later codicils. But it seems to me that it would be artificial and illogical reasoning to infer that Miss Ross intended such a previous clause to affect the Museum provisions, the same being wholly inconsistent with her intention as suggested in the codicil of October 12, 1921, providing for the museum in lieu of or by way of substitution for the Library provisions. The will with all the codicils speaks as of the time of the death of the testator, but it speaks then of what was in the mind of the testator at the dates when the will and the codicils were respectively signed. Scaife v. Thomson, 15 S.C. 337. When Miss Ross executed the codicil of 1913, she intended and said that Paragraph 11 should apply to the original will she had signed and the particular codicil she was then signing. And reading it as of the date of her death I do not think anything more can be found in it. Of course, if the Library provisions had been absolutely revoked (instead of conditionally), the property would vest under the residuary clause, but this would then be so regardless of Paragraph 11, supra.
It will be recalled that in the Museum provisions of the 1921 codicil it was provided that the executors or trustees should apply the net income of the property in question 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." And it is argued by counsel for defendants that this is a circumstance tending to show that Miss Ross intended that if the property were not used for the museum it should go to the Roper Hospital. But if the Museum provisions failed there was no income whatever for that purpose and hence no surplus. Obviously Miss Ross anticipated that perhaps there might be a surplus income after fully caring for the museum, and in that case she wanted it to go to the Roper Hospital although it was already one of her highly favored legatees. Such a subordinate and incidental provision as this would hardly be deemed as indicating any intention against the application of the principle of dependent relative revocation.
It is further argued by the defendants that the decisions in the other litigation relating to the Museum provisions of the will of Miss Ross have already settled the questions involved in the instant cause and that the Court has already construed the will and codicils adversely to the contention of the plaintiffs here. It is admitted, however, that the plaintiffs in this cause were not parties to the former litigation and it is therefore obvious that they cannot as a matter of law be bound thereby. But aside from this, I do not construe the orders and decrees in the former litigation as in any way adjudicating or attempting to adjudicate or pass upon the issues before me, although it is doubtless true that the Circuit Judges and the Supreme Court assumed that if the Museum provisions were invalid the property would pass under the residuary clause of the will. But Judges are not required (if indeed permitted) to determine issues not presented to them. I have carefully read the orders of Judge Grimball and Judge Gaston, and in neither of these orders is the slightest reference made to the principle of dependent relative revocation, nor is there any suggestion that such a point had been made in argument before them. Pursuant to the express request of counsel for the defendants I have read the pleading in the case, and they are indeed broad enough to have permitted the issue to be made, but if it had been made the Court would have, of course, brought in as parties the library authorities who are the plaintiffs in the case at bar before me.
It is, however, true that upon the final appeal to the Supreme Court the defendants there, who were the appellants, did directly purport to raise the point in their exception XIX, but the Supreme Court says in regard to this: "Appellants' exception XIX attempts to present the point that in any event of this case the plaintiffs are not entitled to recover because the codicil here held invalid was not a complete revocation of certain other provisions of the will, but this contention was not presented to the Court below and on that account cannot be properly made here."
This declaration of the Supreme Court, quoted from the opinion delivered by Mr. Justice Stukes, seems therefore to be conclusive that the question was not before it for decision, and hence cannot be held to have been decided either expressly or by implication.
My conclusion then is that the plaintiffs herein are entitled to the property referred to in Article 8 of the will of Miss Mary Jane Ross and Article 4 of the codicil of November 10, 1913, pursuant thereto; excepting, of course, the property described as No. 144 Wentworth Street, mentioned in Paragraph 2 of the codicil of October 12, 1921.
It is, therefore, ordered, that the demurrer interposed to the complaint herein by the defendants be, and the same is hereby overruled.
Messrs. Hagood, Rivers Young, of Charleston, counsel for appellants, cite: As to doctrine of dependent relative revocation: Professor Joseph Warren in 33 Harvard Law Review, p. 356, 1 K. J. 665, 69 English Reprint, 627; L.R. 6 Equity, 225, at 227; 1916 Law Reports, 1 Chancery 552; 1 P. Wms., 343; 2 Brev., 279 (Differentiating from case at bar); 2 N. McC., 272; 91 S.C. 101 74 S.E., 135: 193 S.C. 108, 7 S.E.2d 852; 115 S C., 145, 104 S.E., 473; 183 S.C. 379, 191 S.E., 59, at p. 64; 8 Rich. Eq., at p. 246; 61 S.C. 155, 39 S.E., 347, at p. 162; 125 S.C. 165, 118 S.E., 312, at p. 171; 78 S.C. 334, 58 S.E., 945, at pp. 340-1; 192 S.C. 329, 6 S.E.2d 741; 165 S.C. 111, 162 S.E., 911, at p. 912; 8 S.C. Reports, 517, at p. 527; 109 S.C. 477, 96 S.E., 608, at p. 512; 157 S.C. 407, 154 S.E., 426, at 429; 104 S.C. 441, 89 S.E., 405, at 445; 186 S.C. 498, 196 S.E., 177, at p. 179; 9 S.C. 229; 71 S.C. 174, 50 S.E., 777; 12 S.C.L., 409; 14 S.C.L., 282; 14 S.C. 458; 110 S.C. 130, 96 S.E., 557; 136 Tenn., 602, 191 S.W., 131, 5 A.L.R., 303, at p. 314; (Mass.) 136 N.E., 170; Treatise on American Law of Admin., including Wills, 3rd. Ed., by J.G. Woerner, in Vol. 1, Sec. 51, p. 138: Page on Wills, 2nd. Ed., V. 1, Sec. 452, p. 734; 245 Penn., 318; Page on Wills, Sec. 271-277; 1 Pick. (Mass.), 535, at p. 545; 30 Miss., 276; 28 Penn., 23; 153 Penn., 239; 25 A., 1135; 245 Penn., 318, 91 A., 679; 3 W. Va., 174, at p. 180; 23 Ga. 232; 117 Ind., 44, 18 N.E., 45; 219 N.Y., 112, 113 N.E., 800; 172 Ala., 283: 124 Mich., 440, 83 N.W., 97; 38 Minn., 169, 36 N.W., 269, at p. 270; 198 S.C. 29, 15 S.E.2d 837, at p. 845; (Ill.) 39 N.E.2d 1016, at p. 1019; 199 S.C. 197, 18 S.E.2d 661; 68 C.J., Sec. 483, at p. 799 and 800; 28 R.C.L., p. 182. Sec. 141. As to mistake of testatrix justifying Court in setting aside revocation testatrix made without condition expressed: 115 S.C. 145, 104 S.E., 473, at p. 163; 28 R.C.L., p. 177; 33 Harvard L. Review, p. 348; 28 R.C.L., 142, As to equity of Court's rulings: 197 S.C. 96, at 101, 14 S.E.2d 577; 185 S.C. 137, 193 S.E., 602; 29 S.C. Eq., 241; 197 S.C. supra, at p. 107. As to appellant's defense of laches and other defenses in the answer: 187 S.C. 491, 181 S.E., 8. Messrs. Barnwell and Whaley, Mitchell and Horlbeck, all of Charleston, counsel for respondents, cite: As to intention of testatrix: 131 S.C. 192, 126 S.E., 189; 4 S.C. L., 279, at p. 288; 31 S.C. Equity, 538. As to Court of equity granting relief from mistake of law or mistake of fact: 128 S.C. 271, 122 S.E., 768; 180 S.C. 449, 186 S.E., 371; 184 S.C. 449, 191 S.E., 771; 192 S.C. 300, 6 S.E.2d 465; 28 R.C.L., Sec. 141, pp. 182-183. As to object of all construction of wills: 165 S.C. 111, 162 S.E., 911; 186 S.C. 498, 196 S.E., 177; 190 S.C. 53, 2 S.E., 2d 33; 192 S.C. 329, 6 S.E., 2d 741; 193 S.C. 108, 7 S.E.2d 853; 195 S.C. 431, 12 S.E.2d 10; 2 S.C. Equity (2 Des.), 524, 545; 110 S.C. 130, 96 S.E., 557; 1 Bailey, 517-526; 9 S.C. 213, 229; 15 S.C. 337, 356; 89 S.C. 405, 406, 104 S.E., 441; 29 S.C. Equity, 241-246; 113 S.C. 416, 102 S.E., 715. As to dependant relative revocation: 68 C.J., 799, Sec. 483; 28 R.C.L., Sec. 141, pp. 182-183; (Iowa), 286 N.W., 735; 4 S.C.L. (2 Brev.), 279; 286 N.W., 735; 11 S.C.L. (2 Nott and McCord), 272, at 279; at 279; 12 S.C.L., 409; 14 S.C. L., 285; 14 S.C. 458. As to doctrine outside of South Carolina: 2 Vern., 742 (Chancery, 1717), Costigan, Cases on Wills, p. 376 (2d Ed., 1929); 3 Ves. Jr., 321 (Chancery, 1797), Costigan, cases on Wills, 377; L.R., 1, P. and D., 209 (Probate, 1866), Cost. Wills, 382; (Mass.), 136 N.E., 170, 171; (Ga.), 47 S.E., 501-503; (M.N.H.), 6 A.2d 753; (N.M.), 106 P.2d 847; 286 N.W., 735; 1 Chancery Reports, 552; 191 S.W. 131; 286 N.W., 735; 153 S.C. 401, 151 S.E., 67; 140 S.C. 325, 138 S.E., 835; 142 S.C. 125, at 137, 140 S.E., 443; 150 S.C. 29, 147 S.E., 625; 150 S.C. 243, 147 S.E., 927; 188 S.C. 233, 198 S.E., 385; 188 S.C. 395, 199 S.E., 530; 192 S.C. 262, 6 S.E.2d 256. As to res judicata: 130 S.C. 131, 125 S.E., 420; 185 S.C. 169, 193 S.E., 638; 160 S.C. 557, 159 S.E., 386; 17 S.C. 535; Bouvier Law Dictionary, 465; 15 S.C. 565; 22 S.C. 332; 102 S.C. 483, 86 S.E., 1057; 116 S.C. 7, 106 S.E., 843. As to "Law of Case:" 135 S.C. 303, 133 S.E., 547; 171 S.C. 221, 171 S.E., 42; 187 S.C. 260, 196 S.E., 883; 191 S.C. 14, 3 S.E.2d 243; 197 S.C. 88, 14 S.E.2d 625; 193 S.C. 225, 8 S.E.2d 326; 194 S.C. 270, 9 S.E.2d 721; 194 S.C. 317, 9 S.E.2d 736. As to stare decisis: 21 C.J.S., Sec. 222, pp. 381-382; 21 C.J.S., Sec. 210, pp. 383-384; 21 C.J.S., Sec. 222, pp. 408-413; 111 S.C. 553, 558, 99 S.E., 350; 122 S.C. 536, 115 S.E., 745; 48 S.C. 8, 25 S.E., 900; 115 S.C. 48, 104 S.E., 312; 199 S.C. 399, 19 S.E.2d 904; 192 S.C. 208, 6 S.E.2d 17. As to necessary parties in bill for construction of a will: 68 C.J., 882, Secs. 2015 and 2016 and notes; 178 S.C. 94, 182 S.E., 306. As to residuary clauses: 69 C.J., 1072-1074, and S.C. cases cited in note 22; 21 R. L., 296, 43 A., 539; 9 S.C. Equity, 263; 139 S.C. 262, 137 S.E., 727; 31 S.C. Equity, p. 538, et seq. As to general scheme of the will: 146 S.C. 294, 304-306, 309, 144 S.E., 1; 185 S.C. 169, 193 S.E., 638.
Counsel for appellants filed a short reply brief in which they invite Court's attention to pages of cases cited which were omitted from their first brief.
Mr. H.L. Erckmann of Charleston, was counsel for the defendant banks.
May 27, 1942. The opinion of the Court was delivered by
Miss Mary Jane Ross, a resident of the City of Charleston, died in the year 1922, leaving a will with several codicils. This action was brought for the purpose of having the Court construe the will, particularly the eight paragraph. the fourth article of the codicil of November 10, 1913, and the codicil of October 12, 1921, relating in large measure to the property at Numbers 1 and 3 Meeting Street.
A demurrer to the complaint by the defendants, Medical Society of South Carolina and Presbyterian Hospital in Philadelphia, was heard by Honorable L.D. Lide, the very able Judge of the Twelfth Circuit, and the appeal is from his order overruling it.
The eighth paragraph of the will, which is dated June 1, 1892, and the fourth article of the codicil of 1913, made provisions in favor of the Charleston Library Society, in connection with the family homestead in Meeting Street. The codicil of 1921 revoked the provision for the Library, and at the same time and in lieu of it, provided for the establishment there of a public museum.
The trust for the museum failed to become effective, through the mistake of Miss Ross as to the quality of her art collection. Not being a charitable trust, it was invalid as being in violation of the rule against perpetuities. Medical Society of South Carolina et al. v. South Carolina National Bank et al., 197 S.C. 96, 14 S.E.2d 577.
The appeal raises the very interesting question as to whether the codicil of 1921 amounts to an absolute revocation of the provisions for the Library, or whether it is a dependent relative revocation.
The terms of the applicable portions of the will are set forth in the order of Judge Lide.
Our object, of course, must be to ascertain the intention of the testatrix.
We think that in providing for the establishment of a museum, in the codicil of 1921, Miss Ross did not intend an absolute revocation of the provisions which she had previously made for the Library Society, but intended to make a substitution of one public charity of a cultural nature for another, the revocation being conditional upon the effectiveness of the provision for the museum. The revocation and the substitution were parts of one act. In our opinion the general scheme of the will shows that it was her intention that, as a memorial to her two deceased brothers, about one-fourth of the estate should be devoted to cultural or educational purposes, rather than that this fourth, upon the failure of the provisions for the museum, should pass under the residuary clause to the hospitals, to which she had given more than $875,000.00 in her will.
The codicil of 1921 should be regarded as a dependent relative revocation, or conditional revocation. The substituted provision for the museum having failed, the original provision for the Library becomes restored to full force and effect, in so far as the demurrer is concerned. There are issues raised by the answer yet to be determined, and we of course are not passing upon them.
It would be difficult to add anything of value to the well-prepared decision of Judge Lide in which the English and American cases, and especially our own case of Pringle v. McPherson's Ex'rs, 4 S.C.L., 279, 2 Brev. 279, 3 Am. Dec., 713, are fully discussed and carefully analyzed. The circuit order will be reported.
The eleventh paragraph of the codicil of 1913 provides that if any devise or bequest made in the will "or in this codicil" should fail or lapse or prove to be void or for any reason ineffectual the property "intended to be disposed of by same shall fall into and become part of my residuary estate and be disposed of according to the residuary clause of my said will and under no circumstances shall it be taken or deemed that I have died intestate in respect thereto."
This, we think, can have no reference to the codicil of 1921, since the museum trust was not created until eight years afterward. Clause 11 was expressly limited to the devises and bequests contained in the will or in the codicil of 1913. The will and all of the codicils taken together constitute the testament, yet, as was said in the case of Scaife v. Thomson, 15 S.C. 337, at page 356, "while it is true that in a certain sense a will speaks at the death of the testator, yet, as it was well put in the argument of one of the counsel, it speaks then what was in the mind of the testator when his will was signed."
Clearly, in the year 1913, Miss Ross did not have the museum trust in mind.
In our opinion, also, the former decisions of this Court, in cases growing out of the will of Miss Ross, cases in which the present plaintiffs were not parties, have not decided the question here presented so as to preclude their rights. Medical Society of South Carolina et al. v. South Carolina National Bank et al., 197 S.C. 96, 14 S.E.2d 577; Medical Society of South Carolina et al. v. Huger et al., 185 S.C. 137, 193 S.E., 642.
For the reasons stated by the Circuit Judge the exceptions are overruled, and the order overruling the demurrer is affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGE PHILIP H. STOLL, ACTING ASSOCIATE JUSTICE, concur.