US SUPREME COURT DECISIONS

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. chanrobles.com-red

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.]"

chanrobles.com-red

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

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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

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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. chanrobles.com-red

Page 43 U. S. 183