Opinion
14557
October 28, 1937.
Before GRIMBALL, J., Charleston, March, 1937. Affirmed.
Action by the Medical Society of South Carolina, a corporation chartered under the laws of the State of South Carolina, and another, against Alfred Huger, as executor under the last will and testament of Mary Jane Ross, and others, wherein the Carolina Art Association filed an intervening petition. From an order denying the intervening petition, petitioner appeals.
The order of the trial court follows:
This cause now comes before this Court on the petition of Carolina Art Association, a corporation, and on its motion made upon the petition and upon the record in the cause for an order making it a party defendant in the cause, and giving it leave to intervene and to answer.
I have heard the arguments of counsel in the cause, both in favor of the motion and against it, and I have given the matter careful consideration.
It seems that under the will of Mary Jane Ross a trust was created for the establishment of an art museum as a memorial to her two deceased brothers, the testatrix providing that in case the establishment of this art museum should fail or lapse or prove to be void or for any reason ineffectual the trust property so set aside should be divided between the Medical Society of South Carolina and the Presbyterian Hospital in Philadelphia.
The record shows that, although Mary Jane Ross departed this life in August, 1922, the trustees of this trust property have not yet established the memorial museum provided for.
And now comes the petitioner, Carolina Art Association, with a proposed plan for the carrying out of the trust. It asks that an order issue making it a party to this cause, and that it be allowed to intervene and file pleadings herein.
In deciding this issue now presented by Carolina Art Association, as to whether it has a right to be made a party to this cause, the Court must necessarily adhere to the existing rules of practice and pleading — those rules which are founded on common sense and which have stood the test of time and experience.
I find no better statement of the rule than that expressed by Justice Joseph Story, at one time a justice of the Supreme Court of the United States, and at one time a professor of law in Harvard University. In his work on "Equity Pleadings" Justice Story wrote as follows: "No person should be made a party, who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had."
Applying that rule to the petition of Carolina Art Association to have itself made a party to this cause, it is evident that the petitioner has no interest in the suit. Miss Ross did not name petitioner in her will. The suit is between those parties which were in fact named by Miss Ross. No property rights of Carolina Art Association can in any way be affected by the outcome of this cause.
Nor can any decree of affirmative relief be possibly had in this cause against Carolina Art Association.
It is evident that an application of this rule to the petition requires the denial of the petitioner's prayer to be made a party to this cause.
It is my opinion that Carolina Art Association is to be commended for bringing forward its well-considered plan for the carrying out of Miss Ross's expressed desire to establish an art museum as a memorial to her two brothers. The trustees should consider this plan. But whether or not the trustees should undertake to adopt this plan is at this time entirely within the realm of their duty as trustees of this trust.
Should the trustees undertake to adopt the suggested plan, the adverse interests of other parties to this cause will no doubt be urged upon the attention of the Court. Should such a contingency arise it will then be the duty of the Court to declare whether or not such a plan can, under the existing rules applying to the execution and interpretation of trusts, be legally adopted.
It is therefore ordered that the petition of Carolina Art Association be, and the same is hereby, denied.
Messrs. Nathaniel B. Barnwell and Augustine T. Smythe, for appellant, cite: Validity of charitable devise: 48 S.C. 444; 26 S.E., 717; 93 S.C. 455; 77 S.E., 131; 122 S.C. 96; 115 S.E., 217; 107 S.E., 238; 81 N.C. 509. Intention of testator to govern: 139 S.C. 262; 137 S.E., 727; 93 S.C. 455; 77 S.E., 131.
Messrs. Hagood, Rivers Young, for respondents, cite: Only parties having interest may intervene: Sec. 404, Code 1932; 129 S.C. 531; 181 S.C. 458; 176 S.C. 151; 67 C.J., 276. Doctrine of cy-pres: 3 S.C. 502; 23 N.Y., 9; 2 Strob. Eq., 395.
October 28, 1937. The opinion of the Court was delivered by
This action was commenced in the Court of Common Pleas for Charleston County on December 18, 1934. The issues made by the pleadings are whether, under the provisions of the will and codicils of Mary Jane Ross, probated September 25, 1922, certain property given by her to the trustees of the Ross Memorial in order to create and maintain a memorial museum in memory of certain members of her family, should be so applied, or whether such property should pass to the plaintiffs, the beneficiaries of the residuary estate of the testatrix, under the provisions of one of the codicils to the effect that if any of the devises or bequests made should "fail or lapse or prove to be void or for any reason ineffectual," the property intended to be so disposed of should become a part of the residuary estate. The plaintiffs allege that what the testatrix gave for the museum is insufficient to make it practicable to operate it, and claim that they are now entitled, under the provisions of the will, to such property. The answers of the defendants set up the practicability of establishing and operating the museum if sufficient time be allowed, and pray that the complaint be dismissed.
In February, 1937, the appellant, Carolina Art Association, filed an intervening petition, setting out that it is a corporation engaged in the "furtherance, maintenance and preservation of all cultural and artistic progress and development" in the community of Charleston, and submitting a plan under which it alleged that the main purpose of the trust created by the testatrix could be carried out and her desires in the matter fulfilled. It asked to be made a party to the cause and for leave to answer so as to set up such plan. The plaintiffs replied to the petition, alleging that Carolina Art Association has no interest in the property, the subject of the suit, nor in the devises and bequests in the will and codicils, and that the petitioner's purpose is an effort to pervert a portion of the trust estate to an object not contemplated by the testatrix. They asked that the petition be dismissed.
The matter was heard by his Honor, Judge Grimball, who filed an order on March 15, 1937, refusing to make the petitioner a party to the cause and denying to it the right to come in and answer. The association excepts and brings error.
We have given painstaking consideration to the question presented by the appeal, and are satisfied, for the reasons stated by him, that the conclusion reached by Judge Grimball is correct. In Bomar v. City of Spartanburg, 181 S.C. 453, 187 S.E., 921, 923, this Court, speaking through Mr. Justice Bonham, stated the principle of pleading involved in Section 404 of the Code of 1932 to be "that in order that one be made a party defendant to an action, such person must have an interest in the controversy adverse to the plaintiff. That is to say, he must have an interest contrary to the claim which is the foundation of plaintiff's action." See, also, Ex parte Mercer, 129 S.C. 531, 125 S.E., 33.
It is not disputed that the property here in question belonged outright to the testatrix to do with as she pleased. The appellant is not mentioned in the will, nor is it made to appear that it has any interest in the subject-matter of the suit in any way. The contest thereabout is between the plaintiffs and the defendants, who are named in the will and who claim thereunder. We may observe also that the decisions relied on by the appellant, and which we here cite, give no support to its contention that it should be made a party to the action. Dye v. Beaver Creek Church, 48 S.C. 444, 26 S.E., 717, 59 Am. St. Rep., 724; Mars v. Gibert, 93 S.C. 455, 77 S.E., 131; Harter v. Johnson, 122 S.C. 96, 115 S.E., 217; City of Columbia v. Monteith, 139 S.C. 262, 137 S.E., 727.
As to whether the plan which the petitioner seeks to submit to the Court is a wise or "well-considered" one, is a matter about which we express no opinion. The comments thereon by the Circuit Judge were unnecessary to a decision of the question before him.
Judge Grimball's order, which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.