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Binney and Sergeant, for the defendants.
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 neighbourhood 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, [**3] and Citizens of Philadelphia," their successors and assigns, in trust, to and for the several uses, intents, and purposes hereinafter 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 for ever thereafter be let from 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 nett residue (after paying the several annuities herein-before 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 [**4] 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 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 centre 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, for ever,) a permanent college, with suitable out-buildings, 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 out-buildings 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 [**5] 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 fire-proof inside and outside. The floors and the roof to be formed of solid materials, on arches turned on proper centres, 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. &c. &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 [**6] 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 millions 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 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. The 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 favour or intrigue.
3. As many poor white male orphans, between the ages of six and ten years, as the said income shall [**7] 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 [**8] 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.
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 be paid to their health, and to this end their persons and clothers 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, [**9] 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 guarantied 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 mal-conduct, 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 [**10] 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 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 [**11] a part of the captial; 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 instil 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, evidence [**12] 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.
[various provisions omitted]
In [**21] 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.
Signed, sealed, published, and declared, by the said Stephen Girard, as and for a republication of his last will and testament, and a 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.
[ * * * ]
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 [**25] 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.
[Details of complaint omitted -kc]
[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 the 28th April, 1841, [**33] 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, adjudged, and decreed, that the complainants' bill be dismissed with costs.
The complainants appealed to this court.
LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: Corporation of City -- Philadelphia can take real and personal estate by deed in trust -- if refused, trust not void -- new trustee may be appointed by Court of Equity -- the two acts March and April, 1832, interpret the charter of Philadelphia -- Conclusiveness of -- Construction of Girard's Will -- Charities and charitable uses and devises -- the excluding christian influences from college founded does not vitiate devise. --
Headnote:
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 VIII., 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 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, 1844), 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."
The present case distinguished from the case of The Trustees of the 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, ch. 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.
[One might surmise from these headnotes that the majority of this case dealt with the law of charitable devises, and whether the City could take Girard's gift. Part of the question was whether charities belonged to church or state. One final issue is described in the last headnote:]
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.
[If they had asked me to write this headnote, it would be quite different!]
SYLLABUS: 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 corporatons 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 taking property upon a trust not strictly within the scope of the direct purposes [**34] 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, 1032, 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 anjudicial sense. Donations for the establishment [**35] 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, 1844,) recognised 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."
The present case distinguished from the case of the Trustees of the 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 enirely 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 assocation which had no legal capacity to take and hold the donation in succession for the purposes of the trust, and the beneficiaries were [**36] also uncertain and indefinite.
The decisions and dicta 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.
COUNSEL: Jones and Webster, for the appellants, who were also the complaiants below.
Binney and Sergeant, for the defendants.