The corporation of the City of Philadelphia has power, under its
charter, to take real and personal estate by deed and also by
devise, inasmuch as the act of 32 and 34 Henry 8, which excepts
corporations from taking by devise, is not in force in
Pennsylvania.
Where a corporation has this power, it may also take and hold
property in trust in the same manner and to the same extent that a
private person may do; if the trust be repugnant to, or
inconsistent with, the proper purpose for which the corporation was
created, it may not be compellable to execute it, but the trust (if
otherwise unexceptionable) will not be void, and a court of equity
will appoint a new trustee to enforce and perfect the objects of
the trust.
Neither is there any positive objection in point of law to a
corporation's taking property upon a trust not strictly within the
scope of the direct purposes of its institution, but collateral to
them.
Under the general power "for the suppression of vice and
immorality, the advancement of the public health and order, and the
promotion of trade, industry, and happiness," the corporation may
execute any trust germane to those objects.
The charter of the city invests the corporation with powers and
rights to take property upon trust for charitable purposes which
are not otherwise obnoxious to legal animadversion.
The two acts of March and April, 1832, passed by the Legislature
of Pennsylvania, are a legislative interpretation of the charter of
Philadelphia, and would be sufficient hereafter to estop the
legislature from contesting the competency of the corporation to
take the property and execute the trusts.
If the trusts were in themselves valid but the corporation
incompetent to execute them, the heirs of the devisor could not
take advantage of such inability; it could only be done by the
state in its sovereign capacity, by a
quo warranto or
other proper judicial proceeding.
The trusts mentioned in the will of Stephen Girard are of an
eleemosynary nature, and charitable uses in a judicial sense.
Donations for the establishment of colleges, schools, and
seminaries of learning, and especially such as are for the
education of orphans and poor scholars, are charities in the sense
of the common law.
The decision of the Supreme Court of Pennsylvania in the case of
Zimmerman v. Andres, January term, 1841, recognized and
confirmed,
viz.:
"That the conservative provisions of the statute of 43
Elizabeth, chap. 4, have been in force in Pennsylvania by common
usage and constitutional recognition, and not only these but the
more extensive range of charitable uses which chancery supported
before that statute and beyond it. "
Page 43 U. S. 128
The present case distinguished from the case of
Trustees of
Philadelphia Baptist Association v. Hart's
Executors, 4 Wheat. 1, upon two grounds,
viz.,
1. that the case in Wheaton arose under the law of Virginia, in
which state the statute of 43 Elizabeth, chap. 4, had been
expressly and entirely abolished by the legislature, so that no aid
whatever could be derived from its provisions to sustain the
bequest;
2. that the donees were an unincorporated association which had
no legal capacity to take and hold the donation in succession for
the purposes of the trust, and the beneficiaries were also
uncertain and indefinite.
The decisions and
dicta of English judges and the
recent publication of the Record Commissioners in England examined
as to the jurisdiction of chancery over charitable devises anterior
to the statute of 43 Elizabeth.
This part of the common law was in force in Pennsylvania,
although no court having equity powers now exists or has existed
capable of enforcing such trusts.
The exclusion of all ecclesiastics, missionaries, and ministers
of any sort from holding or exercising any station or duty in a
college or even visiting the same, or the limitation of the
instruction to be given to the scholars, to pure morality, general
benevolence, a love of truth, sobriety, and industry, are not so
derogatory and hostile to the Christian religion as to make a
devise for the foundation of such a college void according to the
Constitution and laws of Pennsylvania.
The object of the bill filed in the court below was to set aside
a part of the will of the late Stephen Girard under the following
circumstances:
Girard, a native of France, was born about the middle of the
last century. Shortly before the declaration of independence, he
came to the United States, and before the peace of 1783 was a
resident of the City of Philadelphia, where he died in December,
1831, a widower and without issue. Besides some real estate of
small value near Bordeaux, he was, at his death, the owner of real
estate in this country which had cost him upwards of $1,700,000,
and of personal property worth not less than $5,000,000. His
nearest collateral relations were a brother, one of the original
complainants, a niece, the other complainant, who was the only
issue of a deceased sister, and three nieces who were defendants,
the daughters of a deceased brother.
The will of Mr. Girard, with two codicils, was proved at
Philadelphia on 31 December, 1831.
Page 43 U. S. 129
After sundry legacies and devises of real property to various
persons and corporations, the will proceeds thus:
"XX. And whereas, I have been for a long time impressed with the
importance of educating the poor and of placing them, by the early
cultivation of their minds and the developments of their moral
principles, above the many temptations to which, through poverty
and ignorance, they are exposed, and I am particularly desirous to
provide for such a number of poor male white orphan children as can
be trained in one institution a better education as well as a more
comfortable maintenance than they usually receive from the
application of the public funds, and whereas, together with the
object just adverted to, I have sincerely at heart the welfare of
the City of Philadelphia, and as a part of it am desirous to
improve the neighborhood of the River Delaware, so that the health
of the citizens may be promoted and preserved and that the eastern
part of the city may be made to correspond better with the
interior."
"Now I do give, devise and bequeath all the residue and
remainder of my real and personal estate of every sort and kind
wheresoever situate (the real estate in Pennsylvania charged
aforesaid), unto 'the Mayor, Aldermen, and Citizens of
Philadelphia,' their successors and assigns, in trust to and for
the several uses, intents, and purposes herein after mentioned and
declared of and concerning the same -- that is to say, so far as
regards my real estate in Pennsylvania, in trust, that no part
thereof shall ever be sold or alienated by the said Mayor,
Aldermen, and Citizens of Philadelphia or their successors, but the
same shall forever thereafter be let form time to time, to good
tenants, at yearly, or other rents, and upon leases in possession
not exceeding five years from the commencement thereof, and that
the rents, issues, and profits arising therefrom shall be applied
towards keeping that part of the said real estate situate in the
city and liberties of Philadelphia constantly in good repair (parts
elsewhere situate to be kept in repair by the tenants thereof
respectively), and towards improving the same whenever necessary by
erecting new buildings, and that the net residue (after paying the
several annuities hereinbefore provided for) be applied to the same
uses and purposes as are herein declared of and concerning the
residue of my personal estate, and so far as regards my real estate
in Kentucky, now under the care of Messrs. Triplett and Brumley, in
trust, to sell and dispose of the same whenever it may be expedient
to do so and to apply the proceeds of such sale to the same uses
and purposes as are
Page 43 U. S. 130
herein declared of and concerning the residue of my personal
estate."
"XXI. And so far as regards the residue of my personal estate,
in trust, as to two millions of dollars, part thereof, to apply and
expend so much of that sum as may be necessary in erecting, as soon
as practicably may be, in the center of my square of ground between
High and Chestnut Streets and Eleventh and Twelfth Streets, in the
City of Philadelphia (which square of ground I hereby devote for
the purposes hereinafter stated, and for no other, forever), a
permanent college, with suitable outbuildings, sufficiently
spacious for the residence and accommodation of at least three
hundred scholars, and the requisite teachers and other persons
necessary in such an institution as I direct to be established, and
in supplying the said college and outbuildings with decent and
suitable furniture, as well as books and all things needful to
carry into effect my general design."
"The said college shall be constructed with the most durable
materials, and in the most permanent manner, avoiding needless
ornament and attending chiefly to the strength, convenience, and
neatness of the whole. It shall be at least one hundred and ten
feet east and west, and one hundred and sixty feet north and south,
and shall be built on lines parallel with High and Chestnut Streets
and Eleventh and Twelfth Streets, provided those lines shall
constitute at their junction right angles. It shall be three
stories in height, each story at least fifteen feet high in the
clear from the floor to the cornice. It shall be fireproof inside
and outside. The floors and the roof to be formed of solid
materials on arches turned on proper centers, so that no wood may
be used, except for doors, windows, and shutters. Cellars shall be
made under the whole building solely for the purposes of the
institution &c. [and then follows a long and exceedingly minute
description of the manner in which the building shall be
erected]."
"When the college and appurtenances shall have been constructed
and supplied with plain and suitable furniture and books,
philosophical and experimental instruments and apparatus, and all
other matters needful to carry my general design into execution,
the income, issues, and profits of so much of the said sum of two
million of dollars as shall remain unexpended shall be applied to
maintain the said college according to my directions."
"1. The institution shall be organized as soon as practicable,
and to accomplish that purpose more effectually, due public notice
of the
Page 43 U. S. 131
intended opening of the college shall be given, so that there
may be an opportunity to make selections of competent instructors
and other agents, and those who may have the charge of orphans may
be aware of the provisions intended for them."
"2. A competent number of instructors, teachers, assistants, and
other necessary agents shall be selected, and when needful, their
places from time to time supplied. They shall receive adequate
compensation for their services, but no person shall be employed
who shall not be of tried skill in his or her proper department, of
established moral character, and in all cases persons shall be
chosen on account of their merit, and not through favor or
intrigue."
"3. As many poor white male orphans between the ages of six and
ten years as the said income shall be adequate to maintain shall be
introduced into the college as soon as possible, and from time to
time as there may be vacancies or as increased ability from income
may warrant, others shall be introduced."
"4. On the application for admission, an accurate statement
should be taken in a book prepared for the purpose of the name,
birthplace, age, health, condition as to relatives, and other
particulars useful to be known of each orphan."
"5. No orphan should be admitted until the guardians or
directors of the poor, or a proper guardian or other competent
authority shall have given, by indenture, relinquishment, or
otherwise, adequate power to the Mayor, Aldermen, and Citizens of
Philadelphia, or to directors, or others by them appointed, to
enforce, in relation to each orphan, every proper restraint, and to
prevent relatives or others from interfering with, or withdrawing
such orphan from the institution."
"6. Those orphans for whose admission application shall first be
made shall be first introduced, all other things concurring -- and
at all future times, priority of application shall entitle the
applicant to preference in admission, all other things concurring,
but if there shall be, at any time, more applicants than vacancies,
and the applying orphans shall have been born in different places,
a preference shall be given first, to orphans born in the City of
Philadelphia; secondly, to those born in any other part of
Pennsylvania; thirdly, to those born in the City of New York (that
being the first port on the continent of North America at which I
arrived), and lastly to those born in the City of New Orleans,
being the first port on the said continent at which I first traded,
in the first instance as first officer and subsequently as master
and part owner of a vessel and cargo. "
Page 43 U. S. 132
"7. The orphans admitted into the college shall be there fed
with plain but wholesome food, clothed with plain but decent
apparel (no distinctive dress ever to be worn), and lodged in a
plain but safe manner; due regard shall he paid to their health,
and to this end their persons and clothes shall be kept clean, and
they shall have suitable and rational exercise and recreation. They
shall be instructed in the various branches of a sound education,
comprehending reading, writing, grammar, arithmetic, geography,
navigation, surveying, practical mathematics, astronomy, natural,
chemical and experimental philosophy, the French and Spanish
languages (I do not forbid, but I do not recommend, the Greek and
Latin languages), and such other learning and science as the
capacities of the several scholars may merit or warrant. I would
have them taught facts and things, rather than words or signs, and
especially I desire that by every proper means a pure attachment to
our republican institutions and to the sacred rights of conscience,
as guaranteed by our happy constitutions, shall be formed and
fostered in the minds of the scholars."
"8. Should it unfortunately happen that any of the orphans
admitted into the college shall, from malconduct, have become unfit
companions for the rest, and mild means of reformation prove
abortive, they should no longer remain therein."
"9. Those scholars who shall merit it shall remain in the
college until they shall respectively arrive at between fourteen
and eighteen years of age; they shall then be bound out by the
Mayor, Aldermen, and Citizens of Philadelphia, or under their
direction, to suitable occupations -- as those of agriculture,
navigation, arts, mechanical trades, and manufactures, according to
the capacities and acquirements of the scholars respectively,
consulting, as far as prudence shall justify it, the inclinations
of the several scholars, as to the occupation, art, or trade to be
learned."
"In relation to the organization of the college and its
appendages, I leave, necessarily, many details to the Mayor,
Aldermen, and Citizens of Philadelphia and their successors, and I
do so with the more confidence as, from the nature of my bequests
and the benefit to result from them, I trust that my fellow
citizens of Philadelphia will observe and evince especial care and
anxiety in selecting members for their city councils, and other
agents."
"There are, however, some restrictions which I consider it my
duty to prescribe and to be, amongst others, conditions on
which
Page 43 U. S. 133
my bequest for said college is made and to be enjoyed,
namely:"
"First, I enjoin and require that if, at the close of any year,
the income of the fund devoted to the purposes of the said college
shall be more than sufficient for the maintenance of the
institution during that year, then the balance of the said income,
after defraying such maintenance, shall be forthwith invested in
good securities, thereafter to be and remain a part of the capital;
but in no event shall any part of the said capital be sold,
disposed of or pledged to meet the current expenses of the said
institution, to which I devote the interest, income, and dividends
thereof, exclusively."
"Secondly, I enjoin and require that no ecclesiastic,
missionary, or minister of any sect whatsoever shall ever hold or
exercise any station or duty whatever in the said college, nor
shall any such person ever be admitted for any purpose, or as a
visitor, within the premises appropriated to the purposes of the
said college."
"In making this restriction, I do not mean to cast any
reflection upon any sect or person whatsoever, but as there is such
a multitude of sects and such a diversity of opinion amongst them,
I desire to keep the tender minds of the orphans who are to derive
advantage from this bequest free from the excitement which clashing
doctrines and sectarian controversy are so apt to produce; my
desire is that all the instructors and teachers in the college
shall take pains to instill into the minds of the scholars the
purest principles of morality, so that, on their entrance into
active life, they may, from inclination and habit, evince
benevolence towards their fellow creatures and a love of truth,
sobriety, and industry, adopting at the same time such religious
tenets as their matured reason may enable them to prefer."
"If the income arising from that part of the said sum of two
millions of dollars remaining after the construction and furnishing
of the college and outbuildings shall, owing to the increase of the
number of orphans applying for admission or other cause, be
inadequate to the construction of new buildings or the maintenance
and education of as many orphans as may apply for admission, then
such further sum as may be necessary for the construction of new
buildings, and the maintenance and education of such further number
of orphans as can be maintained and instructed within such
buildings as the said square of ground shall be adequate to shall
be taken from the final residuary fund hereinafter expressly
referred to for the purpose, comprehending the income of my real
estate in the City and County of Philadelphia, and the dividends of
my stock in the Schuylkill Navigation Company
Page 43 U. S. 134
-- my design and desire being that the benefits of said
institution shall be extended to as great a number of orphans as
the limits of the said square and buildings therein can
accommodate."
"XXII. And as to the further sum of five hundred thousand
dollars, part of the residue of my personal estate, in trust, to
invest the same securely, and to keep the same so invested, and to
apply the income thereof exclusively to the following purposes,
that is to say [then follows an enumeration of the objects to which
the income of the fund is to be applied, being the improvement of
the eastern part of the city]."
"XXIII. I give and bequeath to the Commonwealth of Pennsylvania
the sum of three hundred thousand dollars for the purpose of
internal improvement by canal navigation, to be paid into the state
treasury by my executors, as soon as such laws shall have been
enacted by the constituted authorities of the said commonwealth as
shall be necessary, and amply sufficient to carry into effect, or
to enable the constituted authorities of the City of Philadelphia
to carry into effect the several improvements above specified,
namely: 1. laws to cause Delaware Avenue, as above described, to be
made, paved, curbed, and lighted; to cause the buildings, fences,
and other obstructions now existing, to be abated and removed, and
to prohibit the creation of any such obstructions to the eastward
of said Delaware Avenue; 2. laws to cause all wooden buildings, as
above described, to be removed and to prohibit their future
erection within the limits of the City of Philadelphia; 3. laws
providing for the gradual widening, regulating, paving, and curbing
Water Street, as hereinbefore described, and also for the repairing
the middle alleys, and introducing the Schuylkill water and pumps,
as before specified -- all which objects may, I persuade myself, be
accomplished on principles at once just in relation to individuals,
and highly beneficial to the public, the said sum, however, not to
be paid unless said laws be passed within one year after my
decease."
"XXIV. And as it regards the remainder of said residue of my
personal estate, in trust, to invest the same in good securities,
and in like manner to invest the interests and income thereof from
time to time, so that the whole shall form a permanent fund, and to
apply the income of the said fund: "
"1st. To the further improvement and maintenance of the
aforesaid college, as directed in the last paragraph of the XXIst
clause of this will. "
Page 43 U. S. 135
"2d. To enable the corporation of the City of Philadelphia to
provide more effectually than they now do for the security of the
persons and property of the inhabitants of the said city by a
competent police, including a sufficient number of watchmen, really
suited to the purpose, and to this end I recommend a division of
the city into watch districts, or four parts, each under a proper
head, and that at least two watchmen shall, in each round or
station, patrol together."
"3d. To enable the said corporation to improve the city property
and the general appearance of the city itself, and in effect to
diminish the burden of taxation, now most oppressive, especially on
those who are least able to bear it."
"To all which objects, the prosperity of the city, and the
health and comfort of its inhabitants, I devote the said fund as
aforesaid, and direct the income thereof to be applied yearly and
every year forever, after providing for the college as hereinbefore
directed as my primary object. But, if the said city shall
knowingly and willfully violate any of the conditions hereinbefore
and hereinafter mentioned, then I given and bequeath the said
remainder and accumulations to the Commonwealth of Pennsylvania for
the purposes of internal navigation, excepting, however, the rents,
issues, and profits of my real estate in the City and County of
Philadelphia, which shall forever be reserved and applied to
maintain the aforesaid college in the manner specified in the last
paragraph of the XXIst clause of this will. And if the Commonwealth
of Pennsylvania shall fail to apply this or the preceding bequest
to the purposes before mentioned or shall apply any part thereof to
any other use, or shall, for the term of one year from the time of
my decease, fail or omit to pass the laws hereinbefore specified
for promoting the improvement of the City of Philadelphia, then I
give, devise, and bequeath the said remainder and accumulations
(the rents aforesaid always excepted and reserved for the college
as aforesaid) to the United States of America for the purposes of
internal navigation and no other."
"Provided, nevertheless, and I do hereby declare that all the
preceding bequests and devises of the residue of my estate to the
Mayor, Aldermen, and Citizens of Philadelphia are made upon the
following express conditions -- that is to say:"
"First, that none of the moneys, principal, interest, dividends,
or rents, arising from the said residuary devise and bequest shall
at any time be applied to any other purpose or purposes whatever
than those herein mentioned and appointed."
"Second, that separate accounts, distinct from the other
Page 43 U. S. 136
accounts of the corporation, shall be kept by the said
corporation, concerning the said devise, bequest, college, and
funds, and of the investment and application thereof, and that a
separate account or accounts of the same shall be kept in bank, not
blended with any other account, so that it may at all times appear
on examination by a committee of the legislature, as hereinafter
mentioned, that my intentions had been fully complied with."
"Third, That the said corporation render a detailed account
annually, in duplicate, to the Legislature of the Commonwealth of
Pennsylvania at the commencement of the session, one copy for the
Senate, and the other for the House of Representatives, concerning
the said devised and bequeathed estate, and the investment and
application of the same, and also a report in like manner of the
state of the said college, and shall submit all their books,
papers, and accounts touching the same to a committee or committees
of the legislature for examination when the same shall be
required."
"Fourth, the said corporation shall also cause to be published
in the month of January annually, in two or more newspapers printed
in the City of Philadelphia, a concise but plain account of the
state of the trusts, devises, and bequests herein declared and
made, comprehending the condition of the said college, the number
of scholars, and other particulars needful to be publicly known,
for the year next preceding the said month of January,
annually."
"[The 25th section related to the winding up of the Girard Bank,
and the 26th appointed Timothy Paxon, Thomas P. Cope, Joseph
Roberts, William J. Duane, and John A. Barclay Executors. Then
followed the execution of the will, in regular form, on 16
February, 1830]."
"Whereas, I, Stephen Girard, the testator named in the foregoing
will and testament, dated the sixteenth day of February, eighteen
hundred and thirty, have, since the execution thereof, purchased
several parcels and pieces of real estate, and have built sundry
messuages, all which, as well as any real estate that I may
hereafter purchase, it is my wish and intention to pass by the said
will, now I do hereby republish the foregoing last will and
testament, dated February 16, 1830, and do confirm the same in all
particulars."
"In witness, I, the said Stephen Girard, set my hand and seal
hereunto the twenty-fifth day of December, eighteen hundred and
thirty."
"STEPHEN GIRARD [L. S.]"
Page 43 U. S. 137
"Signed, sealed, published, and declared by the said Stephen
Girard, as and for a republication of his last will and testament,
in the presence of us, who, at his request, have hereunto
subscribed our names as witnesses thereto, in the presence of the
said testator and of each other, December 25, 1830."
"JOHN H. IRWIN"
"SAMUEL ARTHUR"
"JNO. THOMSON"
"Whereas I, Stephen Girard, the testator named in the foregoing
will and testament, dated February 16, 1830, have since the
execution thereof, purchased several parcels and pieces of land and
real estate, and have built sundry messuages, all of which, as well
as any real estate that I may hereafter purchase, it is my
intention to pass by said will; and whereas, in particular, I have
recently purchased from Mr. William Parker the mansion house,
outbuildings, and forty-five acres and some perches of land, called
Peel Hall, on the Ridge Road in Penn Township, now I declare it to
be my intention, and I direct, that the orphan establishment,
provided for in my said will, instead of being built as therein
directed upon my square of ground between High and Chestnut and
Eleventh and Twelfth Streets, in the City of Philadelphia, shall be
built upon the estate so purchased from Mr. W. Parker, and I hereby
devote the said estate to that purpose exclusively in the same
manner as I had devoted the said square, hereby directing that all
the improvements and arrangements for the said orphan establishment
prescribed by my said will as to said square shall be made and
executed upon the said estate, just as if I had in my will devoted
the said estate to said purpose -- consequently, the said square of
ground is to constitute, and I declare it to be a part of the
residue and remainder of my real and personal estate, and given and
devised for the same uses and purposes, as are declared in section
twenty of my will, it being my intention that the said square of
ground shall be built upon and improved in such a manner as to
secure a safe and permanent income for the purposes stated in said
twentieth section."
"In witness whereof I, the said Stephen Girard, set my hand and
seal hereunto, the twentieth day of June, eighteen hundred and
thirty-one."
"STEPHEN GIRARD [L. S.]"
"Signed, sealed, published, and declared by the said Stephen
Girard, as and for a republication of his last will and testament,
and a
Page 43 U. S. 138
further direction in relation to the real estate therein
mentioned, in the presence of us, who, at his request, have
hereunto subscribed our names as witnesses thereto, in the presence
of the said testator, and of each other, June 20, 1831."
"S. H. CARPENTER"
"L. BARDIN"
"SAMUEL ARTHUR"
The executors named in the will duly proved the same with the
codicils before the Register of wills for the City and County of
Philadelphia, obtained letters testamentary thereon, and took upon
themselves the burden of the execution thereof. Inventories and
supplementary inventories of the estate were filed, debts and
legacies paid, and large sums of money paid to the residuary
legatees. The accounts of the executors were filed in the office of
the register of wills, from which they passed, in due course of
legal proceedings to the Orphan's Court for the City and County of
Philadelphia.
An Act of the Legislature of Pennsylvania of 24 March, 1832, "To
enable the Mayor, Aldermen, and Citizens of Philadelphia to carry
into effect certain improvements, and to execute certain trusts,"
recites the bequest of $500,000, in Stephen Girard's will, sec. 22,
to the Mayor, Aldermen, and Citizens of Philadelphia, in trust
&c., and
"for the purpose of enabling the Mayor, Aldermen, and Citizens
of Philadelphia aforesaid to effect the improvements contemplated
by the said testator, and to execute in all other respects the
trusts created by his will, to enable the constituted authorities
of the City of Philadelphia to carry which into effect, the said
Stephen Girard has desired the legislature to enact the necessary
laws."
Sections 1 to 9 contain enactments stipulated by the testator in
sec. 23 of the will, as the condition on which $300,000 was
bequeathed to the Commonwealth of Pennsylvania.
"And forasmuch as in the course of time it may appear that
powers are not vested in the said the Mayor, Aldermen, and Citizens
of Philadelphia, which may be yet required, to the full execution
of those parts of the said will of the said Stephen Girard, for the
carrying of which into effect he has in his said will requested
legislative provision, and it is the object and intent of this act
fully to confer all such powers."
"Sec. 10. Be it further &c., that it shall be lawful for the
Mayor, Aldermen, and Citizens of Philadelphia, to exercise all such
jurisdiction, enact all such ordinances, and do and execute all
such acts and
Page 43 U. S. 139
things whatsoever as may be necessary and convenient for the
full and entire acceptance, execution and prosecution of any and
all the devises and bequests, trusts and provisions, contained in
the said will, which are the subjects of the preceding parts of
this act, and to enable the constituted authorities of the City of
Philadelphia to carry which into effect, the said Stephen Girard
has desired the legislature to enact the necessary laws."
"Sec. 11. And be it further &c., that no road or street
shall be laid out or passed through the land in the County of
Philadelphia, bequeathed by the late Stephen Girard for the
erection of a college, unless the same shall be recommended by the
trustees or directors of the said college, and approved of by a
majority of the Select and Common Councils of the City of
Philadelphia."
By another act, passed on 4 April, 1832, entitled
"A supplement to the act entitled 'An act to enable the Mayor,
Aldermen, and Citizens of Philadelphia, to carry into effect
certain improvements, and to execute certain trusts,'"
the Select and Common Council of the City of Philadelphia are
authorized to provide by ordinance or otherwise for the election or
appointment of such officers or agents as they may deem essential
to the due execution of the duties and trusts enjoined and created
by the will of the late Stephen Girard.
In October, 1836, some of the heirs of Stephen Girard filed a
bill upon the equity side of the Circuit Court of the United States
for the Eastern District of Pennsylvania, against the corporation
of Philadelphia, the executors, and some of the nieces of Girard,
who were made co-defendants. The claim, as presented in the
original bill, amended bill, and bill of revivor (in which Henry
Stump is made a party as the administrator of one of the deceased
complainants), is as follows:
"Your orator and oratrix further show, that amongst other things
in their original bill, they have alleged and charged that the
testator, Stephen Girard, by a supposed devise in his last will and
testament, has in the first place appropriated two millions of
dollars to the Mayor, Aldermen, and Citizens of Philadelphia, in
trust, for the erection and endowment of a college, for the
maintenance and education of a class of orphans, attempted to be
described by the said testator in his will."
"And your orator and oratrix further state, that in their
original bill, they set out that the said testator, in and by his
will, after appropriating
Page 43 U. S. 140
the two millions of dollars as aforesaid, by another supposed
devise, dedicated the whole of the residuum of his real and
personal estate, with certain exceptions mentioned in the said
original bill, to the Mayor, Aldermen, and Citizens of
Philadelphia, in trust, for the progressive enlargement of said
college, and that there are no other limitations to the number of
orphans to be ultimately admitted into the said college, nor to the
cost nor extent of the establishment, but the number and extent of
the collegiate buildings and their appendages, that may from time
to time be erected within the entire area of forty-five acres and
some perches of land, being a country seat called Peel Hall, so
that in effect there is no devise over of any part of the said
residuum of the real and personal estate of the testator, to any
other use, purpose or object, after deducting the appropriations
that are accepted in the original bill, than the charity connected
with the establishment of said college, except it be contingently,
in case the said college establishment be not made, as it is
contemplated to be, capable of absorbing the whole of the said
residuum of the real and personal estate, intended to be devised in
trust as aforesaid, as by a reference to the said original bill and
exhibits, which your complainants pray may be taken as part of this
bill, will more fully appear."
"Your complainants suggest and insist to be available that it
will be decided, from a true exposition and construction of said
will, which is submitted to the court, that it was the intention of
the testator to dedicate the whole of the rents, issues, and
profits of his real estate in the City and County of Philadelphia
in trust exclusively to the uses and purposes of the charity
connected with said college, and not that the said real estate, or
the rents, issues, and profits thereof are to be contingently
applied to any other use or purpose unless it be to the payment of
a ratable proportion of certain annuities charged on the real
estate of the testator in the State of Pennsylvania by the
eighteenth clause in his will."
"And your orator and oratrix further aver and expressly charge
that the charity connected with the college, if the establishment
is erected and managed according to the directions of the testator
and the necessary buildings constructed so as to fill up and
improve the whole area of forty-five acres and some perches of
land, will require and consume the whole of the residuum of his
real and personal estate, attempted to be devised as aforesaid for
the purposes of erecting, progressively enlarging, and perpetually
maintaining said collegiate establishment for the support and
education of as great a number
Page 43 U. S. 141
of orphans as the testator directs to be admitted therein, so
that there will be no surplus of said residuum of his real and
personal estate supposed to be devised in trust as aforesaid to be
appropriated to any other objects or purposes designated by the
testator in his will. And your orator and oratrix aver that there
is no devise over for any other purpose, upon any contingency, of
the said two millions of dollars supposed to be devised to the
Mayor, Aldermen, and Citizens of Philadelphia in trust for the
erection and endowment of said college, and that no part of said
two millions of dollars, according to the will of the testator, can
be applied in any event to any other use, purpose or object except
to the charitable objects depending upon the erection, endowment
and perpetual support of said college. And your orator and oratrix
aver and insist to be available that the said supposed devise of
two millions of dollars to the Mayor, Aldermen, and Citizens of
Philadelphia in trust for the erection and endowment of said
college for the benefits of uncertain objects of charity supposed
to be intended by the testator is void."
"And your complainants maintain that the Mayor, Aldermen, and
Citizens of Philadelphia were at the death of the testator
incapable of executing any such trust or of taking and holding a
legal estate for the benefit of others, and that whatever may be
the capacity of said Mayor, Aldermen, and Citizens of Philadelphia,
to hold property for the use of others, or to execute a trust, the
object for whose benefit the said devise in trust is supposed to
have been made, are indefinite, vague, and uncertain, as will
appear from an examination of said will, so that no trust is
created that is capable of being executed, or is cognizable either
at law or in equity, and no estate passed by said supposed devise,
that can vest in any existing or ascertainable
cestuis que
trust; that if the objects or persons for whose benefit the
said devise is supposed to have been made, were susceptible of
ascertainment, yet such beneficiaries, when ascertained, would be
wholly incapable of transmitting their equitable title in perpetual
succession, so that the said two millions of dollars, for want of a
good and effectual devise, has descended by operation of the law
governing descents in the State of Pennsylvania, and the treaty
stipulations between France and the United States, to the heirs at
law of Stephen Gerard the testator, according as such laws and
treaty stipulations affect the rights of such of the heirs as are
aliens and such as are citizens of the United States."
"Your orator and oratrix expressly charge in their original bill
that
Page 43 U. S. 142
the said supposed devise to the Mayor, Aldermen, and Citizens of
Philadelphia, in trust, of the whole of the residuum of the real
and personal estate of the testator for the erection, progressive
enlargement, and perpetual support of said college is void, and
that your complainants were heirs at law of said testator, and each
entitled to one-third part of the estate of the testator,
undisposed of or ineffectually disposed of by his last will,
according to the law governing descents in the State of
Pennsylvania, and the treaty stipulations between France and the
United States, and that the testator at the time of his death left
certain other heirs, namely, Maria Antoinetta, wife of John
Hemphill, Henrietta, wife of John Y. Clark, and Caroline, wife of
John Haslam, which said Maria, Henrietta, and Caroline, are nieces
of the said testator and daughters of John Girard, later of
Philadelphia, deceased, and they and their husbands, except the
husband of said Caroline, are all made defendants to said bill,
together with Mark Richards, who is the trustee of Caroline, all of
which said defendants are citizens of the State of Pennsylvania.
And your orator and oratrix further allege that the last named
heirs are the only persons entitled besides your complainants to
any part of the real or personal estate of which the said testator
died seized or possessed, and which remained undisposed of or
ineffectually devised by his will."
"And your complainants, as they are informed, verily believe and
expressly charge that notwithstanding the invalidity of said
supposed devise or devises in trust, the said Mayor, Aldermen, and
Citizens of Philadelphia, soon after the death of the testator,
entered upon and possessed themselves of the two millions of
dollars, supposed to be devised to them in trust for the erection
and support of said college, and also of the whole of the residuum
of the real and personal estate of the testator, supposed to be
devised to them for the same purposes, and have ever since
continued to hold and manage the same according to the terms of
said supposed trust, or under the pretext of applying the said two
millions of dollars, and the said residuum of the real and personal
estate of the testator, to the supposed objects and purposes of
said trust; that they have altogether refused to account to your
complainants or to pay over to them any part of their distributive
shares, either of the said two millions of dollars or of the
residuum of the real and personal estate, to which they are
entitled, but intending artfully and fraudulently to evade and
baffle the reasonable and just claims of your complainants, and the
relief prayed for in the
Page 43 U. S. 143
original bill, they have neglected to answer fully either as to
the amount or value of the real or personal estate they have
entered upon or received from the estate of the testator under
color of said trust, and your complainants pray that in order to
obtain the relief and equity prayed for, the said Mayor, Aldermen,
and Citizens of Philadelphia, be compelled to answer and
discover,"
&c.
The bill then prayed a general discovery and account from all
parties.
The defendants all answered, and the executors filed full
accounts of all their transactions. A commission to take testimony
was issued to France in order to establish the relationship
existing between the complainants and the deceased.
Under the act of 1832, the corporation of Philadelphia passed an
ordinance providing for the building of the college, and the board
of trustees created thereby was organized in March, 1833. The
building was commenced and carried on from year to year under the
direction of the authorities appointed in this ordinance.
On 28 April, 1841, the cause came on for hearing in the circuit
court upon the bill, amended bill, and bill of revivor, answers,
replications, depositions and exhibits, when, after argument of
counsel, it was ordered, and adjudged, and decreed, that the
complainants' bill be dismissed with costs.
The complainants appealed to this Court.
Page 43 U. S. 183
MR. JUSTICE STORY delivered the opinion of the Court.
This cause has been argued with great learning and ability. Many
topics have been discussed in the arguments, as illustrative of the
principal grounds of controversy, with elaborate care, upon which,
however, in the view which we have taken of the merits of the
cause, it is not necessary for us to express any opinion, nor even
allude to their bearing or application. We shall therefore confine
ourselves to the exposition of those questions and principles which
in our judgment dispose of the whole matters in litigation, so far
at least as they are proper for the final adjudication of the
present suit.
The late Stephen Girard, by his will dated 25 December, A.D.
1830, after making sundry bequests to his relatives and friends, to
the City of New Orleans, and to certain specified charities,
proceeded in the 20th clause of that will to make the following
bequest, on which the present controversy mainly hinges. "XX. And
whereas I have been for a long time impressed," &c.
[
See the statement prepared by the reporter.]
The testator then proceeded to give a minute detail of the plan
and structure of the college, and certain rules and regulations for
the due management and government thereof and the studies to be
pursued therein,
"comprehending reading, writing, grammar, arithmetic, geography,
navigation, surveying, practical mathematics, astronomy, natural,
chemical, and experimental philosophy, the
Page 43 U. S. 184
French and Spanish languages, [not forbidding, but not
recommending, the Greek and Latin languages] and such other
learning and science as the capacities of the several scholars may
merit or warrant."
He then added,
"I would have them taught facts and things rather than words or
signs, and especially I desire that by every proper means a pure
attachment to our republican institutions and to the sacred rights
of conscience as guaranteed by our happy constitutions shall be
formed and fostered in the minds of the scholars."
The persons who are to receive the benefits of the institution
he declared to be
"poor white male orphans between the ages of six and ten years,
and no orphan should be admitted until the guardians or directors
of the poor or other proper guardian or other competent authority
have given by indenture, relinquishment, or otherwise, adequate
power to the Mayor, Aldermen, and Citizens of Philadelphia or to
directors or others by them appointed to enforce in relation to
each orphan every proper restraint and to prevent relatives or
others from interfering with, or withdrawing such orphan from the
institution."
The testator then provided for a preference
"first, to orphans born in the City of Philadelphia; secondly,
to those born in any other part of Pennsylvania; thirdly, to those
born in the City of New York; and lastly, to those born in the City
of New Orleans."
The testator further provided that the orphan "scholars who
shall merit it shall remain in the college until they shall
respectively arrive at between fourteen and eighteen years of
age."
The testator then, after suggesting that in relation to the
organization of the college and its appendages, he leaves
necessarily many details to the Mayor, Aldermen, and Citizens of
Philadelphia and their successors, proceeded to say:
"There are, however, some restrictions which I consider it my
duty to prescribe, and to be, amongst others, conditions on which
my bequest for said college is made and to be enjoyed, namely,
first, I enjoin and require, . . . [
see statement of the
reporter]."
This second injunction and requirement is that which has been so
elaborately commented on at the bar as derogatory to the Christian
religion, and upon which something will be hereafter suggested in
the course of this opinion.
The testator then bequeathed the sum of $500,000 to be invested,
and the income thereof applied to lay out, regulate, and light and
pave a passage or street in the east part of the City of
Philadelphia, fronting the River Delaware, not less than twenty-one
feet wide and to be called Delaware Avenue &c., and to this
intent to obtain such
Page 43 U. S. 185
acts of assembly, and to make such purchases or agreements as
will enable the Mayor, Aldermen, and Citizens of Philadelphia to
remove or pull down all the buildings, fences, and obstructions,
which may be in the way, and to prohibit all buildings, fences, or
erections of any kind to the eastward of said avenue &c., and
he proceeded to give other minute directions touching the same.
The testator then bequeathed to the Commonwealth of Pennsylvania
the sum of $300,000 for the purpose of internal improvement by
canal navigation, to be paid into the state Treasury as soon as
such laws shall be enacted by the legislature to carry into effect
the several improvements before specified, and certain other
improvements.
The testator then bequeathed the remainder of the residue of his
personal estate in trust to invest the same in good securities
&c., so that the whole shall form a permanent fund, and to
apply the income thereof to certain specified purposes, which he
proceeds to name, and then said: "To all which objects," &c.
[
See statement of the reporter.]
These are the material clauses of the will which seem necessary
to be brought under our review in the present controversy. By a
codicil dated the 20 June, A.D. 1831, the testator made the
following provision:
"Whereas I, Stephen Girard, the testator named in the foregoing
will and testament, dated February 16, 1830, have since the
execution thereof purchased several parcels and pieces of land and
real estate and have built sundry messuages, all of which, as well
as any real estate that I may hereafter purchase, it is my
intention to pass by said will, and whereas, in particular, I have
recently purchased from Mr. William Parker the mansion house,
outbuildings, and forty-five acres and some perches of land, called
Peel Hall, on the Ridge road, in Penn Township, now I declare it to
be my intention, and I direct that the orphan establishment,
provided for in my said will, instead of being built as therein
directed upon my square of ground between High and Chestnut and
Eleventh and Twelfth Streets, in the City of Philadelphia, shall be
built upon the estate so purchased from Mr. W. Parker, and I hereby
devote the said estate to that purpose exclusively in the same
manner as I had devoted the said square, hereby directing that all
the improvements and arrangements for the said orphan
establishment, prescribed by my said will as to said square, shall
be made and executed upon the said estate, just as if I had in my
will devoted the said estate to said purpose -- consequently, the
said square of ground is to constitute
Page 43 U. S. 186
and I declare it to be a part of the residue and remainder of my
real and personal estate, and given and devised for the same uses
and purposes as are declared in section twenty of my will, it being
my intention that the said square of ground shall be built upon and
improved in such a manner as to secure a safe and permanent income
for the purposes stated in said twentieth section."
The testator died in the same year, and his will and codicil
were duly admitted to probate on 31 December of the same year.
The Legislature of Pennsylvania passed the requisite laws to
carry into effect the will so far as respected the bequests of the
$500,000 for the Delaware Avenue and the $300,000 for internal
improvement by canal navigation, according to the request of the
testator.
The present bill is brought by the heirs at law of the testator,
to have the devise of the residue and remainder of the real estate
to the Mayor, Aldermen, and Citizens of Philadelphia in trust as
aforesaid to be declared void for the want of capacity of the
supposed devisees to take land by devise, or if capable of taking
generally by devise for their own use and benefit, for want of
capacity to take such lands as devisees in trust, and because the
objects of the charity for which the lands are so devised in trust
are altogether vague, indefinite, and uncertain, and so no trust is
created by the said will which is capable of being executed or of
being cognizable at law or in equity, nor any trust estate devised
that can vest at law or in equity in any existing or possible
cestui que trust, and therefore the bill insists that as
the trust is void, there is a resulting trust thereof for the heirs
at law of the testator, and the bill accordingly seeks a
declaration to that effect and the relief consequent thereon, and
for a discovery and account, and for other relief.
The principal questions to which the arguments at the bar have
been mainly addressed are first, whether the corporation of the
City of Philadelphia is capable of taking the bequest of the real
and personal estate for the erection and support of a college upon
the trusts and for the uses designated in the will; secondly,
whether these uses are charitable uses valid in their nature and
capable of being carried into effect consistently with the laws of
Pennsylvania; thirdly, if not, whether, being void, the fund falls
into the residue of the testator's estate and belongs to the
corporation of the city in virtue of the residuary clause in the
will, or it belongs, as a resulting or implied trust, to the heirs
and next of kin of the testator.
As to the first question, so far as it respects the capacity of
the
Page 43 U. S. 187
corporation to take the real and personal estate, independently
of the trusts and uses connected therewith, there would not seem to
be any reasonable ground for doubt. The act of 32 and 34 Henry 8,
respecting wills, excepts corporations from taking by devise, but
this provision has never been adopted into the laws of Pennsylvania
or in force there. The Act of 11 March, 1789, incorporating the
City of Philadelphia, expressly provides that the corporation,
thereby constituted by the name and style of the Mayor, Aldermen,
and Citizens of Philadelphia, shall have perpetual succession,
"and they and their successors shall at all times forever be
capable in law to have, purchase, take, receive, possess, and enjoy
lands, tenements and hereditaments, liberties, franchises and
jurisdictions, goods, chattels, and effects to them and their
successors forever, or for any other or less estate,"
&c., without any limitation whatsoever as to the value or
amount thereof or as to the purposes to which the same were to be
applied, except so far as may be gathered from the preamble of the
act, which recites that the then administration of government
within the City of Philadelphia was in its form
"inadequate to the suppression of vice and immorality, to the
advancement of the public health and order, and to the promotion of
trade, industry, and happiness, and in order to provide against the
evils occasioned thereby, it is necessary to invest the inhabitants
thereof with more speedy, rigorous, and effective powers of
government than at present established."
Some, at least, of these objects might certainly be promoted by
the application of the city property or its income to them -- and
especially the suppression of vice and immorality and the promotion
of trade, industry, and happiness. And if a devise of real estate
had been made to the city directly for such objects, it would be
difficult to perceive why such trusts should not be deemed within
the true scope of the city charter and protected thereby.
But without doing more at present than merely to glance at this
consideration, let us proceed to the inquiry whether the
corporation of the city can take real and personal property in
trust. Now although it was in early times held that a corporation
could not take and hold real or personal estate in trust upon the
ground that there was a defect of one of the requisites to create a
good trustee,
viz., the want of confidence in the person,
yet that doctrine has been long since exploded as unsound and too
artificial, and it is now held that where the corporation has a
legal capacity to take real or personal estate, there it may take
and hold it upon trust in the same
Page 43 U. S. 188
manner and to the same extent as a private person may do. It is
true that, if the trust be repugnant to or inconsistent with the
proper purposes for which the corporation was created, that may
furnish a ground why it may not be compellable to execute it. But
that will furnish no ground to declare the trust itself void, if
otherwise unexceptionable; but it will simply require a new trustee
to be substituted by the proper court, possessing equity
jurisdiction, to enforce and prefect the objects of the trust. This
will be sufficiently obvious upon an examination of the
authorities; but a single case may suffice. In
Sonley v.
Clockmaker's Company, 1 Bro.Ch. 81, there was a devise of
freehold estate to the testator's wife for life, with remainder to
his brother C. in tail male, with remainder to the Clockmaker's
Company, in trust to sell for the benefit of the testator's nephews
and nieces. The devise being to a corporation, was, by the English
statute of wills, void, that statute prohibiting devises to
corporations, and the question was, whether the devise being so
void, the heir at law took beneficially or subject to the trust.
Mr. Baron Eyre, in his judgment, said that although the devise to
the corporation be void at law, yet the trust is sufficiently
created to fasten itself upon any estate the law may raise. This is
the ground upon which courts of equity have decreed, in cases where
no trustee is named. Now this was a case not of a charitable
devise, but a trust created for nephews and nieces; so that it
steers wide from the doctrines which have been established as to
devises to corporations for charities as appointments under the
statute of 43 Elizabeth:
a fortiori, the doctrine of this
case must apply with increased stringency to a case where the
corporation is capable at law to take the estate devised, but the
trusts are utterly
dehors the purposes of the
incorporation. In such a case, the trust itself being good, will be
executed by and under the authority of a court of equity. Neither
is there any positive objection in point of law to a corporation's
taking property upon a trust not strictly within the scope of the
direct purposes of its institution, but collateral to them -- nay,
for the benefit of a stranger or of another corporation. In the
case of
Green v. Rutherforth, 1 Ves. 462, a devise was
made to St. John's College in Cambridge of the perpetual advowson
of a rectory in trust, that whenever the church should be void and
his nephew be capable of being presented thereto, they should
present him, and on the next avoidance should present one of his
name and kindred, if there should be anyone capable thereof in the
college; if none such, they should present the
Page 43 U. S. 189
senior divine, then fellow of the college, and on his refusal
the next senior divine, and so downward, and if all refused, they
should present any other person they should think fit. Upon the
argument of the cause, an objection was taken that the case was not
cognizable in a court of equity, but fell within the jurisdiction
of the visitor. Sir John Strange (the Master of the Rolls), who
assisted Lord Hardwicke at the hearing of the cause, on that
occasion said:
"A private person would undoubtedly be compellable to execute it
[the trust], and, considered as a trust, it makes no difference who
are the trustees, the power of this Court operating on them in the
capacity of trustees. And though they are a collegiate body whose
founder has given a visitor to superintend his own foundation and
bounty, yet as between one claiming under a separate benefactor and
these trustees for special purposes, the court will look on them as
trustees only, and oblige them to execute it under direction of the
court."
Lord Hardwicke, after expressing his concurrence in the judgment
of the Master of the Rolls, put the case of the like trust being to
present no member of another college, and held that the court would
have jurisdiction to enforce it.
But if the purposes of the trust be germane to the objects of
the incorporation; if they relate to matters which will promote,
and aid, and perfect those objects; if they tend (as the charter of
the City of Philadelphia expresses it) "to the suppression of vice
and immorality, to the advancement of the public health and order,
and to the promotion of trade, industry and happiness," where is
the law to be found which prohibits the corporation from taking the
devise upon such trusts, in a state where the statutes of mortmain
do not exist (as they do not in Pennsylvania), the corporation
itself having a legal capacity to take the estate as well be devise
as otherwise? We know of no authorities which inculcate such a
doctrine or prohibit the execution of such trusts, even though the
act of incorporation may have for its main objects mere civil and
municipal government and regulations and powers. If, for example,
the testator by his present will had devised certain estate of the
value of $1,000,000 for the purpose of applying the income thereof
to supplying the City of Philadelphia with good and wholesome water
for the use of the citizens, from the River Schuykill (an object
which some thirty or forty years ago would have been thought of
transcendant benefit), why, although not specifically enumerated
among the objects of the charter, would not such a devise upon such
a trust have been valid,
Page 43 U. S. 190
and within the scope of the legitimate purposes of the
corporation, and the corporation capable of executing it as
trustees? We profess ourselves unable to perceive any sound
objection to the validity of such a trust, and we know of no
authority to sustain any objection to it. Yet in substance the
trust would be as remote from the express provisions of the charter
as are the objects (supposing them otherwise maintainable) now
under our consideration. In short, it appears to us that any
attempt to narrow down the powers given to the corporation so as to
exclude it from taking property upon trusts for purposes
confessedly charitable and beneficial to the city or the public,
would be to introduce a doctrine inconsistent with sound
principles, and defeat instead of promoting the true policy of the
state. We think, then, that the charter of the city does invest the
corporation with powers and rights to take property upon trust for
charitable purposes, which are not otherwise obnoxious to legal
animadversion, and therefore the objection that it is incompetent
to take or administer a trust is unfounded in principle or
authority, under the law of Pennsylvania.
It is manifest that the Legislature of Pennsylvania acted upon
this interpretation of the charter of the city, in passing the Acts
of 24 March, and 4 April, 1832, to carry into effect certain
improvements and execute certain trusts, under the will of Mr.
Girard. The preamble to the trust act, expressly states that it is
passed "to effect the improvements contemplated by the said
testator, and to execute, in all other respects, the trusts created
by his will," as to which, the testator had desired the legislature
to pass the necessary laws. The tenth section of the same act,
provides
"That is shall be lawful for the Mayor, Aldermen, and Citizens
of Philadelphia, to exercise all such jurisdiction, enact all such
ordinances, and to do and execute all such acts and things
whatsoever, as may be necessary and convenient for the full and
entire acceptance, execution, and prosecution of any and all the
devises, bequests, trusts, and provisions contained in said will
&c.; to carry which into effect"
the testator had desired the legislature to enact the necessary
laws. But what is more direct to the present purpose, because it
imports a full recognition of the validity of the devise for the
erection of the college, is the provision of the 11th section of
the same act, which declares
"That no road or street shall be laid out, or passed through the
land in the County of Philadelphia, bequeathed by the late Stephen
Girard for the erection of a college, unless the same shall be
recommended by
Page 43 U. S. 191
the trustees or directors of the said college, and approved by a
majority of the select and common councils of the City of
Philadelphia."
The other act is also full and direct to the same purpose, and
provides
"That the select and common councils of the City of
Philadelphia, shall be and they are hereby authorized to provide,
by ordinance or otherwise, for the election or appointment of such
officers and agents as they may deem essential to the due execution
of the duties and trusts enjoined and created by the will of the
late Stephen Girard."
Here then, there is a positive authority conferred upon the city
authorities to act upon the trusts under will, and to administer
the same through the instrumentality of agents appointed by them.
No doubt can then be entertained that the legislature meant to
affirm the entire validity of those trusts, and the entire
competency of the corporation to take and hold the property devised
upon the trusts named in the will.
It is true that this is not a judicial decision, and entitled to
full weight and confidence as such. But it is a legislative
exposition and confirmation of the competency of the corporation to
take the property and execute the trusts, and if those trusts were
valid in point of law, the legislature would be estopped thereafter
to contest the competency of the corporation to take the property
and execute the trusts, either upon a
quo warranto or any
other proceeding, by which it should seek to divest the property,
and invest other trustees with the execution of the trusts, upon
the ground of any supposed incompetency of the corporation. And if
the trusts were in themselves valid in point of law, it is plain
that neither the heirs of the testator, nor any other private
persons, could have any right to inquire into, or contest the right
of the corporation to take the property, or to execute the trusts;
but this right would exclusively belong to the state in its
sovereign capacity, and in its sole discretion, to inquire into and
contest the same by a
quo warranto, or other proper
judicial proceeding. In this view of the matter, the recognition
and confirmation of the devises and trusts of the will by the
legislature, are of the highest importance and potency.
We are then led directly to the consideration of the question
which has been so elaborately argued at the bar, as to the validity
of the trusts for the erection of the college, according to the
requirements and regulations of the will of the testator. That the
trusts are of an eleemosynary nature, and charitable uses in a
judicial sense, we entertain no doubt. Not only are charities for
the maintenance
Page 43 U. S. 192
and relief of the poor, sick, and impotent, charities in the
sense of the common law, but also donations given for the
establishment of colleges, schools, and seminaries of learning, and
especially such as are for the education of orphans and poor
scholars.
The statute of the 43 of Elizabeth, ch. 4, has been adjudged by
the Supreme Court of Pennsylvania not to be in force in that state.
But then it has been solemnly and recently adjudged by the same
court, in the case of
Zimmerman v. Andres, January term,
1844, that
"it is so considered rather on account of the inapplicability of
its regulations as to the modes of proceeding, than in reference to
its conservative provisions. . . . These have been in force here by
common usage and constitutional recognition; and not only these,
but the more extensive range of charitable uses which chancery
supported before that statute and beyond it."
Nor is this any new doctrine in that court, for it was formally
promulgated in the case of
Witman v. Lex, 17 Serg. &
R. 88, at a much earlier period (1827).
Several objections have been taken to the present bequest to
extract it from the reach of these decisions. In the first place,
that the corporation of the city is incapable by law of taking the
donation of such trusts. This objection has been already
sufficiently considered. In the next place, it is said, that the
beneficiaries who are to receive the benefit of the charity are too
uncertain and indefinite to allow the bequest to have any legal
effect, and hence the donation is void, and the property results to
the heirs. And in support of this argument we are pressed by the
argument that charities of such an indefinite nature are not good
at the common law (which is admitted on all sides to be the law of
Pennsylvania, so far as it is applicable to its institutions and
constitutional organization and civil rights and privileges), and
hence the charity fails, and the decision of this Court in the case
of
Trustees of the Philadelphia
Baptist Association v. Hart's Executors, 4 Wheat.
1, is strongly relied on as fully in point. There are two
circumstances which materially distinguish that case from the one
now before the court. The first is that that case arose under the
law of Virginia, in which state the statute of 43 Elizabeth, ch. 4,
had been expressly and entirely abolished by the legislature, so
that no aid whatsoever could be derived from its provisions to
sustain the bequest. The second is that the donees (the trustees)
were an unincorporated association, which had no legal capacity to
take and hold the donation in succession for the purposes of the
trust, and the beneficiaries also were uncertain and
indefinite.
Page 43 U. S. 193
Both circumstances, therefore, concurred; a donation to trustees
incapable of taking, and beneficiaries uncertain and
indefinite.
The court upon that occasion went into an elaborate examination
of the doctrine of the common law on the subject of charities,
antecedent to and independent of the statute of 43 Elizabeth, ch.
4, for that was still the common law of Virginia. Upon a thorough
examination of all the authorities and all the lights (certainly in
no small degree shadowy, obscure, and flickering), the court came
to the conclusion that at the common law, no donation to charity
could be enforced in chancery, where both of these circumstances,
or rather where both of these defects occurred. The court said:
"We find no dictum that charities could be established on such
an information (by the attorney general) where the conveyance was
defective or the donation was so vaguely expressed that the donee,
if not a charity, would be incapable of taking."
In reviewing the authorities upon that occasion, much reliance
was placed upon
Collison's Case, Hob. 136; (
s.c.,
cited Duke on Charities, by Bridgman, 368, Moore, 888), and
Platt v. St. John's College, Cambridge, Finch., 221
(
s.c., 1 Cas. in Chan. 267, Duke on Charities, by
Bridgman, 379), and the case reported in 1 Ch.Cas. 134. But these
cases, as also
Flood's Case, Hob. 136, (
S.C. 1
Eq.Abr. 95, pl. 6), turned upon peculiar circumstances.
Collison's Case was upon a devise in 15 Henry 8, and was
before the Statute of Wills. The other cases were cases where the
donees could not take at law, not being properly described, or not
having a competent capacity to take, so that there was no legal
trustee, and yet the devises were held good as valid appointments
under the statute of 43 Elizabeth. The
dictum of Lord
Loughborough in
Attorney General v. Bowyer, 3 Ves. 714,
726, was greatly relied on, where he says:
"It does not appear that this Court at that period (that is
before the statute of wills) had cognizance upon information for
the establishment of charities. Prior to the time of Lord
Ellesmere, as far as tradition in times immediately following goes,
there were no such informations as this on which I am now sitting
(an information to establish a college under a devise before the
statute of mortmain of 9 Geo. 2, ch. 36); but they made out their
case as well as they could at law."
In this suggestion Lord Loughborough had under his consideration
Porter's Case, 1 Co. 16. But there a devise was made in 32
Henry 8, to the testator's wife, upon condition for her to grant
the lands &c., in all convenient speed after his decease
Page 43 U. S. 194
for the maintenance and continuance of a certain free school,
and almsmen and almswomen forever. The heir entered for and after
condition broken, and then conveyed the same lands to Queen
Elizabeth in 34 of her reign, and the queen brought an information
of intrusion against Porter for the land in the same year. One
question was whether the devise was not to a superstitious, and
therefore void under the Act of 23 Henry 8, ch. 2, or whether it
was good as a charitable use. And it was resolved by the court that
the use was a good charitable use, and that the statute did not
extend to it. So that here we have a plain case of a charity held
good, before the statute of Elizabeth, upon the ground of the
common law, there being a good devisee originally, although the
condition was broken and the use was for charitable purposes in
some respects indefinite. Now if there was a good devisee to take
as trustee, and the charity was good at the common law, it seems
somewhat difficult to say why, if no legal remedy was adequate to
redress it, the court of chancery might not enforce the trust,
since trusts for other specific purposes, were then, at least when
there were designated trustees, within the jurisdiction of
chancery.
There are, however,
dicta of eminent judges (some of
which were commented upon in the case of
17
U. S. 4 Wheat. 1), which do certainly support the
doctrine that charitable uses might be enforced in chancery upon
the general jurisdiction of the court, independently of the statute
of 43 of Elizabeth, and that the jurisdiction had been acted upon
not only subsequent but antecedent to that statute. Such was the
opinion of Sir Joseph Jekyll in
Eyre v. Countess of
Shaftsbury, 2 P.Wms. 102; 2 Eq.Abr., 710, pl. 2, and that of
Lord Northington in
Attorney General v. Tancred, 1 Eden
10,
s.c. Amb., 351, 1 W.Bl. 90, and that of Lord Chief
Justice Wilmot in his elaborate judgment in
Attorney General v.
Lady Downing, Wilmot's Notes 1, 26, given after an examination
of all the leading authorities. Lord Eldon, in
Attorney General
v. Skinner's Company, 2 Russ., 407, intimates in clear terms
his doubts whether the jurisdiction of chancery over charities
arose solely under the statute of Elizabeth, suggesting that the
statute has perhaps been construed with reference to a supposed
antecedent jurisdiction of the court, by which void devises to
charitable purposes were sustained. Sir John Leach, in the case of
a charitable use before the Statute of Elizabeth,
Attorney
General v. Master of Brentwood School, 1 Myl. & K. 376,
said:
"Although at
Page 43 U. S. 195
his time no legal devise could be made to a corporation for a
charitable use, yet lands so devised were in equity bound by a
trust for the charity, which a court of equity would then
execute."
In point of fact, the charity was so decreed in that very case,
in the 12th year of Elizabeth. But what is still more important is
the declaration of Lord Redesdale, a great judge in equity, in
Attorney General v. Mayor of Dublin, 1 Bligh 312, 347
(1827), where he says:
"We are referred to the statute of Elizabeth with respect to
charitable uses, as creating a new law upon the subject of
charitable uses. That statute only created a new jurisdiction; it
created no new law. It created a new and ancillary jurisdiction, a
jurisdiction created by commission &c.; but the proceedings of
that commission were made subject to appeal to the Lord Chancellor,
and he might reverse or affirm what they had done, or make such
order as he might think fit for reserving the controlling
jurisdiction of the court of chancery as it existed before the
passing of that statute, and there can be no doubt that by
information by the attorney general the same thing might be
done."
He then adds,
"The right which the attorney general has to file an
information, is a right of prerogative. The King, as
parens
patriae, has a right, by his proper officer, to call upon the
several courts of justice, according to the nature of their several
jurisdictions, to see that right is done to his subjects who are
incompetent to act for themselves, as in the case of charities and
other cases."
So that Lord Redesdale maintains the jurisdiction in the
broadest terms, as founded in the inherent jurisdiction of chancery
independently of the statute of 43 Elizabeth. In addition to these
dicta and doctrines, there is the very recent case of the
Incorporated Society v. Richards, 1 Dru. & W. 258,
where Lord Chancellor Sugden, in a very masterly judgment, upon a
full survey of all the authorities, and where the point was
directly before him, held the same doctrine as Lord Redesdale, and
expressly decided that there is an inherent jurisdiction in equity
in cases of charity, and that charity is one of those objects for
which a court of equity has at all times interfered to make good
that, which at law was an illegal or informal gift, and that cases
of charity in courts of equity in England were valid independently
of and previous to the statute of Elizabeth.
Mr. Justice Baldwin in the case of the will of Sarah Zane, which
was cited at the bar and pronounced at April term of the circuit
court, in 1833, after very extensive and learned researches into
the ancient English authorities and statutes, arrived at the same
conclusion
Page 43 U. S. 196
in which the district judge, the late lamented Judge Hopkinson,
concurred, and that opinion has a more pointed bearing upon the
present case, since it included a full review of the Pennsylvania
laws and doctrines on the subject of charities.
But very strong additional light has been thrown upon this
subject by the recent publications of the commissioners on the
public Records in England, which contain a very curious and
interesting collection of the chancery records in the reign of
Queen Elizabeth, and in the earlier reigns. Among these are found
many cases in which the court of chancery entertained jurisdiction
over charities long before the statute of 43 Elizabeth, and some
fifty of these cases, extracted from the printed calendars, have
been laid before us. They establish in the most satisfactory and
conclusive manner that cases of charities where there were trustees
appointed for general and indefinite charities, as well as for
specific charities, were familiarly known to, and acted upon, and
enforced in the court of chancery. In some of these cases the
charities were not only of an uncertain and indefinite nature, but,
as far as we can gather from the imperfect statement in the printed
records, they were also cases where there were either no trustees
appointed, or the trustees were not competent to take. These
records, therefore, do in a remarkable manner confirm the opinions
of Sir Joseph Jekyll, Lord Northington, Lord Chief Justice Wilmot,
Lord Redesdale, and Lord Chancellor Sugden. Whatever doubts,
therefore, might properly be entertained upon the subject when the
case of the Trustees of
Philadelphia Baptist Association
v. Hart's Executors, 4 Wheat. 1, was before this
Court (1819), those doubts are entirely removed by the late and
more satisfactory sources of information to which we have
alluded.
If, then, this be the true state of the common law on the
subject of charities, it would, upon the general principle already
suggested, be a part of the common law of Pennsylvania. It would be
no answer to say that if so it was dormant, and that no court
possessing equity powers now exists, or has existed in
Pennsylvania, capable of enforcing such trusts. The trusts would
nevertheless be valid in point of law, and remedies may from time
to time be applied by the legislature to supply the defects. It is
no proof of the nonexistence of equitable rights that there exists
no adequate legal remedy to enforce them. They may during the time
slumber, but they are not dead.
But the very point of the positive existence of the law of
charities in Pennsylvania has been (as already stated) fully
recognized and
Page 43 U. S. 197
enforced in the state courts of Pennsylvania, as far as their
remedial process would enable these courts to act. This is
abundantly established in the cases cited at the bar, and
especially by the case of
Witman v. Lex, 17 Serg. & R.
88, and that of
Sarah Zane's Will, before Mr. Justice
Baldwin and Judge Hopkinson. In the former case, the court said
"That it is immaterial whether the person to take be
in
esse or not, or whether the legatee were at the time of the
bequest a corporation capable of taking or not, or how uncertain
the objects may be, provided there be a discretionary power vested
anywhere over the application of the testator's bounty to those
objects, or whether their corporate designation be mistaken. If the
intention sufficiently appears in the bequest, it would be
valid."
In the latter case certain bequests given by the will of Mrs.
Zane to the Yearly Meeting of Friends in Philadelphia, an
unincorporated association, for purposes of general and indefinite
charity, were, as well as other bequests of a kindred nature, held
to be good and valid, and were enforced accordingly. The case then,
according to our judgment, is completely closed in by the
principles and authorities already mentioned, and is that of a
valid charity in Pennsylvania, unless it is rendered void by the
remaining objection which has been taken to it.
This objection is that the foundation of the college upon the
principles and exclusions prescribed by the testator, is derogatory
and hostile to the Christian religion, and so is void, as being
against the common law and public policy of Pennsylvania, and this
for two reasons: first, because of the exclusion of all
ecclesiastics, missionaries, and ministers of any sect from holding
or exercising any station or duty in the college, or even visiting
the same, and secondly because it limits the instruction to be
given to the scholars to pure morality, and general benevolence,
and a love of truth, sobriety, and industry, thereby excluding, by
implication, all instruction in the Christian religion.
In considering this objection, the court are not at liberty to
travel out of the record in order to ascertain what were the
private religious opinions of the testator (of which indeed we can
know nothing), nor to consider whether the scheme of education by
him prescribed, is such as we ourselves should approve, or as is
best adapted to accomplish the great aims and ends of education.
Nor are we at liberty to look at general considerations of the
supposed public interests and policy of Pennsylvania upon this
subject, beyond what its Constitution and laws and judicial
decisions make known to us. The question, what
Page 43 U. S. 198
is the public policy of a state, and what is contrary to it, if
inquired into beyond these limits, will be found to be one of great
vagueness and uncertainty, and to involve discussion which scarcely
come within the range of judicial duty and functions, and upon
which men may and will complexionally differ; above all, when that
topic is connected with religious polity, in a country composed of
such a variety of religious sects as our country, it is impossible
not to feel that it would be attended with almost insuperable
difficulties, and involve differences of opinion almost endless in
their variety. We disclaim any right to enter upon such
examinations, beyond what the state constitutions and laws and
decisions necessarily bring before us.
It is also said, and truly, that the Christian religion is a
part of the common law of Pennsylvania. But this proposition is to
be received with its appropriate qualifications, and in connection
with the bill of rights of that state, as found in its constitution
of government. The Constitution of 1790 (and the like provision
will, in substance, be found in the Constitution of 1776, and in
the existing Constitution of 1838), expressly declares,
"That all men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own consciences; no
man can of right be compelled to attend, erect, or support any
place of worship, or to maintain any ministry against his consent;
no human authority can, in any case whatever, control or interfere
with the rights of conscience, and no preference shall ever be
given by law to any religious establishment or modes of
worship."
Language more comprehensive for the complete protection of every
variety of religious opinion could scarcely be used, and it must
have been intended to extend equally to all sects, whether they
believed in Christianity or not, and whether they were Jews or
infidels. So that we are compelled to admit that although
Christianity be a part of the common law of the state, yet it is so
in this qualified sense, that its divine origin and truth are
admitted, and therefore it is not to be maliciously and openly
reviled and blasphemed against, to the annoyance of believers or
the injury of the public. Such was the doctrine of the Supreme
Court of Pennsylvania in
Updegraff v. Commonwealth, 11
Serg. & R. 394.
It is unnecessary for us, however, to consider what would be the
legal effect of a devise in Pennsylvania for the establishment of a
school or college, for the propagation of Judaism, or Deism, or any
other form of infidelity. Such a case is not to be presumed to
exist in a Christian country, and therefore it must be made out by
clear
Page 43 U. S. 199
and indisputable proof. Remote inferences, or possible results,
or speculative tendencies, are not to be drawn or adopted for such
purposes. There must be plain, positive, and express provisions,
demonstrating not only that Christianity is not to be taught, but
that it is to be impugned or repudiated.
Now in the present case there is no pretense to say that any
such positive or express provisions exist, or are even shadowed
forth in the will. The testator does not say that Christianity
shall not be taught in the college, but only that no ecclesiastic
of any sect shall hold or exercise any station or duty in the
college. Suppose, instead of this, he had said that no person but a
layman shall be an instructor or officer or visitor in the college,
what legal objection could have been made to such a restriction?
And yet the actual prohibition is in effect the same in substance.
But it is asked why are ecclesiastics excluded if it is not because
they are the stated and appropriate preachers of Christianity? The
answer may be given in the very words of the testator. "In making
this restriction," says he,
"I do not mean to cast any reflection upon any sect or person
whatsoever. But as there is such a multitude of sects, and such a
diversity of opinion amongst them, I desire to keep the tender
minds of the orphans, who are to derive advantage from this
bequest, free from the excitement which clashing doctrines and
sectarian controversy are so apt to produce."
Here, then, we have the reason given, and the question is not
whether it is satisfactory to us or not, nor whether the history of
religion does or does not justify such a sweeping statement, but
the question is whether the exclusion be not such as the testator
had a right, consistently with the laws of Pennsylvania, to
maintain, upon his own notions of religious instruction. Suppose
the testator had excluded all religious instructors but Catholics,
or Quakers, or Swedenborgians, or, to put a stronger case, he had
excluded all religious instructors but Jews, would the bequest have
been void on that account? Suppose he had excluded all lawyers, or
all physicians, or all merchants from being instructors or
visitors, would the prohibition have been fatal to the bequest? The
truth is that in cases of this sort, it is extremely difficult to
draw any just and satisfactory line of distinction in a free
country as to the qualifications or disqualifications which may be
insisted upon by the donor of a charity as to those who shall
administer or partake of his bounty.
But the objection itself assumes the proposition that
Christianity
Page 43 U. S. 200
is not to be taught, because ecclesiastics are not to be
instructors or officers. But this is by no means a necessary or
legitimate inference from the premises. Why may not laymen instruct
in the general principles of Christianity as well as ecclesiastics.
There is no restriction as to the religious opinions of the
instructors and officers. They may be, and doubtless, under the
auspices of the city government there will always be men not only
distinguished for learning and talent, but for piety and elevated
virtue, and holy lives and characters. And we cannot overlook the
blessings, which such men by their conduct, as well as their
instructions, may -- nay must -- impart to their youthful pupils.
Why may not the Bible, and especially the New Testament, without
note or comment, be read and taught as a divine revelation in the
college -- its general precepts expounded, its evidences explained,
and its glorious principles of morality inculcated? What is there
to prevent a work, not sectarian, upon the general evidences of
Christianity, from being read and taught in the college by lay
teachers? Certainly there is nothing in the will that proscribes
such studies. Above all, the testator positively enjoins,
"that all the instructors and teachers in the college shall take
pains to instill into the minds of the scholars the purest
principles of morality, so that on their entrance into active life,
they may from inclination and habit evince benevolence towards
their fellow creatures, and a love of truth, sobriety, and
industry, adopting at the same time such religious tenets as their
matured reason may enable them to prefer."
Now it may well be asked what is there in all this which is
positively enjoined, inconsistent with the spirit or truths of
Christianity? Are not these truths all taught by Christianity,
although it teaches much more? Where can the purest principles of
morality be learned so clearly or so perfectly as from the New
Testament? Where are benevolence, the love of truth, sobriety, and
industry, so powerfully and irresistibly inculcated as in the
sacred volume? The testator has not said how these great principles
are to be taught or by whom, except it be by laymen, nor what books
are to be used to explain or enforce them. All that we can gather
from his language is that he desired to exclude sectarians and
sectarianism from the college, leaving the instructors and officers
free to teach the purest morality, the love of truth, sobriety, and
industry, by all appropriate means, and of course including the
best, the surest, and the most impressive. The objection, then, in
this view, goes to this -- either that the testator has totally
omitted to provide for religious instruction in his
Page 43 U. S. 201
scheme of education (which, from what has been already said, is
an inadmissible interpretation), or that it includes but partial
and imperfect instruction in those truths. In either view can it be
truly said that it contravenes the known law of Pennsylvania upon
the subject of charities, or is not allowable under the article of
the bill of rights already cited? Is an omission to provide for
instruction in Christianity in any scheme of school or college
education a fatal defect, which avoids it according to the law of
Pennsylvania? If the instruction provided for is incomplete and
imperfect, is it equally fatal? These questions are propounded
because we are not aware that anything exists in the Constitution
or laws of Pennsylvania or the judicial decisions of its tribunals
which would justify us in pronouncing that such defects would be so
fatal. Let us take the case of a charitable donation to teach poor
orphans reading, writing, arithmetic, geography, and navigation,
and excluding all other studies and instruction; would the donation
be void, as a charity in Pennsylvania, as being deemed derogatory
to Christianity? Hitherto it has been supposed that a charity for
the instruction of the poor might be good and valid in England even
if it did not go beyond the establishment of a grammar school. And
in America, it has been thought, in the absence of any express
legal prohibitions, that the donor might select the studies, as
well as the classes of persons, who were to receive his bounty
without being compellable to make religious instruction a necessary
part of those studies. It has hitherto been thought sufficient, if
he does not require anything to be taught inconsistent with
Christianity.
Looking to the objection therefore in a mere juridical view,
which is the only one in which we are at liberty to consider it, we
are satisfied that there is nothing in the devise establishing the
college, or in the regulations and restrictions contained therein,
which are inconsistent with the Christian religion or are opposed
to any known policy of the State of Pennsylvania.
This view of the whole matter renders it unnecessary for us to
examine the other and remaining question, to whom, if the devise
were void, the property would belong, whether it would fall into
the residue of the estate devised to the city, or become a
resulting trust for the heirs at law.
Upon the whole, it is the unanimous opinion of the Court that
the decree of the Circuit Court of Pennsylvania dismissing the
bill, ought to be affirmed, and it is accordingly
Affirmed with costs.
Page 43 U. S. 202
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and was argued by counsel. On
consideration whereof, it is now here ordered, adjudged, and
decreed by this Court that the decree of the said circuit court, in
this cause be and the same is hereby affirmed with costs.
