City of Philadelphia v. Girard's Heirs

• Decision Date: 01 July 1863
• Citation: 45 Pa. 9
• Parties: The City of Philadelphia <I>versus</I> The Heirs of Stephen Girard.
• Court: Pennsylvania Supreme Court

Page 9

45 Pa. 9

The City of Philadelphia versus The Heirs of Stephen Girard.

Supreme Court of Pennsylvania.

July 1, 1863.

ERROR to the Common Pleas of Schuylkill county.

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COPYRIGHT MATERIAL OMITTED

D. W. Sellers, J. H. Campbell, Edward Olmstead, William M. Meredith, and F. Carroll Brewster, City Solicitor, appeared for the City of Philadelphia, plaintiffs in error, and F. P. Dewees, L. M. Coates, H. D. Foster, E. O. Parry, F. W. Hughes, and John C. Knox, for defendants in error.

F. Carroll Brewster, City Solicitor, argued, I. That the devise of Mr. Girard provided for no indefinite accumulation, and was not void. The language of the will was, that the personalty should be so invested as to "form a permanent fund" — that is, fixed, invariable — the opposite of indefinite. The income was to be applied "yearly, and every year for ever" to the designated purposes. How, then, can it accumulate? The idea that the distribution was not to begin at once, but was to be postponed until some indefinite accumulation could be made, was repugnant to the clear reading of the will.

The rents of the realty were not to be invested or accumulated; they were to be applied to keeping the properties in repair, and the residue was to "be applied to the same uses as declared of the residue of the personal estate."

The words "to invest the interest from time to time" are usually found in all wills directing investments and applications of investments. A small balance might remain on hand from the year's expenditure. Was that to be kept idle?

The condition of the estate at the time of the testator's death was to be considered. He owned a large realty, and was at the head of a bank. The latter was to be wound up by assignees, so as to close it without blending its proceeds with the general estate, and in such manner that all balances could be paid over by the assignees to the executors.

From the very nature of the case, many years were required in closing up this bank, during which time the assignees were not liable to be coerced into a settlement like executors. In the mean time the rents were the only supply for the trusts; but when the bank was finally closed, there was in addition to the rents the residue of the personalty, going to form a permanent fund. This interpretation makes the various clauses of the will harmonious.

II. The doctrine of perpetuities has no application to this case. The will creates a trust for charities: 2 Howard 191. Charities receive a liberal interpretation: Reeves' Hist. Eng. Law, vol. 4, p. 80: and were enforceable before the passage of the stat. 29 Eliz. c. 6, or that of 43 Eliz. c. 4. Lord Coke said, "no time was so barbarous as to abolish learning, nor so uncharitable as to prohibit relieving the poor."

For many items of interest on charitable uses the profession are indebted to Professor Dwight: vide Law Register of April, May, and June 1862. According to Lord Bacon, "the law of England is not insociable, but is advised by other sciences; in words by grammarians; in uses by moral philosophers."

The definition of a perpetuity given by Vern. 164, does not apply to this charity. Lewis on Perpetuities, p. 689, contains a full answer to the argument on the other side. The mischief to be prevented by the rule was, 1. The check on the "improvement of land." 2. "Depriving the Commonwealth of all benefit of the property." 3. Making the property "a stagnant possession." No such unlawful purposes are to be found in the trusts created by Mr. Girard's will.

The testator's objects were, the education of poor orphans, the lightening the burdens of taxation, the prosperity of the city, and the health and comfort of its inhabitants.

The statutes of mortmain have never been applied to charities: Cruise, vol. 4, p. 25. Two hundred and fifty charities in London alone, endowed before A. D. 1600, are still existing: 6th Rep. Com. of Charities, p. 197.

Dr. Knight, in his Life of Dean Colet, describes the "impulse of Christian charity as one of the providential ways and means for bringing about the blessed Reformation; and it is therefore observable that within thirty years after it there were more grammar schools erected and endowed in England than had been in those hundred years preceding. And after the Reformation was established, the piety and charity of Protestants ran so fast in this channel that in the next age there wanted rather a regulation of grammar schools than an increase of them." The Smithsonian legacy was a noble bequest by an Englishman to the United States for general purposes of education.

The history of Pennsylvania is full of these charities from 1708 to the present. See Addison 362; 6 S. & R. 211; 17 Id. 89; 1 Penna. Rep. 49; 1 Watts 218; 3 Id. 440; 5 Id. 494; 6 W. & S. 218; 6 Barr 86; 6 Id. 201; 8 Id. 327; 9 Id. 433; 10 Id. 23; 12 Harris 474; 4 Casey 23; 6 Id. 425, 437; 11 Id. 316.

The people have not merely acquiesced in the principle. Five centuries ago the English Parliament enacted that lands held by the Knights Templars should not escheat, but should be devoted for ever to pious uses: 1 Stat. of the Realm 195; 17 Edw. 2, stat. 2, De Ter. Templar, A. D. 1324. Among the most famous laws in favour of charities were the 39 Eliz. c. 6, and 43 Eliz. c. 4.

It was written in the Constitution of 1776, of Pennsylvania, that "All religious societies or bodies of men heretofore united or incorporated, for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities, and estates which they were accustomed to enjoy, or could of right have enjoyed under the laws and former constitution of this state."

The same principle was incorporated in the constitutions of 1790 and 1838. Laws assisting a charity are to be found in 3 Dall. State Laws 46, 659.

On the 24th of March and the 4th of April 1832, Acts of Assembly were approved which assumed the very trusts in this will to be valid.

If legislative interpretation can establish anything, these acts are to be taken as demonstrating that in the view of that General Assembly these trusts were perfectly valid, and deserving of protection at the hands of the law. Mr. Justice Story, 2 Howard 127, says, "No doubt can then be entertained that the legislature meant to affirm the entire validity of these trusts, and the entire competency of the corporation to take and hold the property devised upon the trusts named in the will."

Courts of justice have uniformly sustained charities like those created by Mr. Girard's will. It was a reproach to say that Hilliard v. Miller, 10 Barr 326, decided that a devise like that in question now was void. See also Griffin v. Graham, 1 Hawks, (Va.) 96; The State v. Gerard, 2 Ired. Eq. N. C. 210; McDonough v. Murdoch, 15 How. 367. There was in this latter case an unequivocal intent to increase the estate after the testator's decease. See also Perin v. Carey, 24 How. 465; Thompson v. Swope, 12 Harris 474. "Whatever is given for the love of God, or for the love of our neighbour, free from the stain of everything that is personal, private, or selfish, is a gift for charitable uses:" Lewis, C. J., Price v. Maxwell, 4 Casey 23. See also Cresson's Appeal, 6 Casey 437.

As to the application of the surplus rents: "Where a testator has devised his estate to charitable uses, and has pointed out the particular objects of his bounty, the court construe his intention imperatively to be not only in exclusion of his next of kin, but to the disinheriting of his heir at law."

"And they uniformly decree the surplus rents and profits to the augmentation of the charities, upon the ground that as the charity must have borne the loss, if the value of the thing devised had decreased, it shall enjoy the benefit of its increase:" 1 Coke Rep. 67, note w 1, citing Case of Thetford School, 8 Co. 130; Arnold v. The Attorney-General, Show. P. C. 22; Attorney-General v. Mayor of Coventry, Colles, P. C. 280; 2 Bro. C. P. 236; Vern. 397; Attorney-General v. Price, 8 Atk. 109; Attorney-General v. Smart, 1 Ves. 72; Attorney-General v. Johnson, Ambl. 190; Attorney-General v. Sparks, Id. 201; Shepherd v. Corporation, 3 Mad. 320.

And the court will either increase the bounty limited to the objects, Attorney-General v. Minshull, 4 Ves. 11; or if the fund is very considerable in proportion to the objects, it will apply the surplus upon the principle of cy pres for the benefit of the same objects, to purposes not expressly pointed out by the will: The Bishop of Hereford v. Adams, 7 Ves. 224. Or, after providing for the maintenance of those already established, will extend the bounty, by increasing the number of objects of the same description with those pointed out by the testator: Attorney-General v. Earl of Winchelsea, 3 Bro. C. C. 373; Attorney-General v. Haberdashers' Co. or Turner, 2 Ves Jr. 1; 4 Bro. C. C. 103; Attorney-General v. Hurst, 2 Cox 365; Attorney-General v. Wansey, 15 Ves. 231; Attorney-General v. The Cooper's Co., 19 Id. 187.

In addition to the foregoing the following were held good charities: —

Hob. 136; Com. Dig. Uses n. 3; Bac. Abr., Char. Uses C; Com. Dig. Use, n. 2; Duke 134; Com. Dig. Uses, n. 4; Com. Dig. Uses, n. 10; Com. Dig. Uses, n. 7; Cro. Car. 525; Duke 136; Viscount Gort v. Attorney-General, 6 Dow. 136; 1 Co. R. 26 a, note w 1; Vaughan v. Fener, 2 Ves. 187; Luke 109; Poph. 139; Ves. 321; Newcomb's Case, 14 Id. 1; Cook's Case, 2 Id. 273; 1 Fowler's Case, 15 Id. 85; Fonbl. Tr. Eq. 210; Turner v. Ogden, 1 Cox 316; Johnston v. Swain, 3 Mad. 457; Durour v. Motteux, 1 Ves. 3, n.; Igleby v. Dobson, 4 Ross 342; Attorney-General v. Heelis, 2 S. & S. 76; Attorney-General v. Goddard, 1 Turn. & R. 348; Attorney-General v. Power, 1 Ball & B. 145; White v. White, 7 Ves. 423; Kedmore v. Woodroffe, Ambl. 636; s. c. 1 Bro. C. C. 13; Davenport v. Mortimer, 3 Tur. 287, s. c.; In re Bedford Charity, 2 Swanst. 4...