Girard College Trusteeship, In re

Decision Date24 January 1958
Citation391 Pa. 434,138 A.2d 844
CourtPennsylvania Supreme Court

William T. Coleman, Jr., Raymond Pace Alexander, Philadelphia, Louis H. Pollak, New Haven, Conn., for appellants, William Ashe Foust and Robert Felder.

David Berger, city Solicitor, Abraham L. Freedman, David E. Pinsky, Jacob J. Siegal, Asst. City Solicitors, Philadelphia, for City of Philadelphia.

Arthur Littleton, Morgan, Lewis & Bockius, Philadelphia, for substituted trustees.

Joseph P. Gaffney, Philadelphia, for board of directors of city trusts.

Lois G. Forer, Deputy Atty. Gen., Thomas D. McBride, Atty. Gen., for Commonwealth of Pennsylvania.

C. Brewster Rhoads, Philadelphia, for Girard College Alumni, amicus curiae.



When this matter was here before, we affirmed the action of the Orphans' Court of Philadelphia County denying admission to Girard College to William Ashe Foust and Robert Felder, poor male Negro orphans, for the reason that the will of Stephen Girard, the founder and endower of the college, expressly restricts admission to 'poor male white orphan': see Girard Will Case, 386 Pa. 548, 551, 127 A.2d 287, 296. Although the institution is referred to as a college, the testator himself aptly termed it an 'Orphan Establishment' in one of two codicils which, with the decedent's will, were probated shortly after his death in 1831.

The will nominated and appointed as trustee of the charity the Mayor, Aldermen and Citizens of Philadelphia, the then corporate title of the City, which duly entered upon its trust duties. But, for years, the college had been administered by the Board of Directors of City Trusts of Philadelphia, a body statutorily created by the Act of June 30, 1869, P.L. 1276, 53 P.S. § 16365, which empowered the Board to accept and execute charitable trusts bequeathed to the City of Philadelphia As trustee, whereof a large number, following Girard's lead, had come into existence: see City of Philadelphia v. Fox, 64 Pa. 169, 172 et seq. For the proper administration of the trusts committed to it, the Board of City Trusts is accountable to the Orphans' Court of Philadelphia County: Wilson v. Board of Directors of City Trusts, 324 Pa. 545, 188 A. 588. That court, deeming the Board of City Trusts to be like any other trustee which is a creature of statute and authorized to accept and administer private trusts, held by its decrees, which we affirmed, that the Board of City Trusts was bound to abide faithfully by the restrictions which Girard's will imposes on admissions to the college.

However, the Supreme Court of the United States reversed our judgment of affirmance and remanded the cause for further proceedings not inconsistent with that Court's opinion which held that the Board of City Trusts is an agency of the State of Pennsylvania and that, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State which is forbidden by the Fourteenth Amendment, citing Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873: see Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 1281, 1 L.Ed.2d 1146.

In obedience to the Supreme Court's mandate, we vacated the decrees of the Orphans' Court and remanded the cause to that court 'for further proceedings not inconsistent with the opinion of the Supreme Court of the United States as set forth in its said mandate,' a true and correct copy thereof being appended to our order of remand.

The Orphans' Court, construing the Supreme Court's opinion to mean no more than that the Board of City Trusts was constitutionally incapable of administering Girard College in accordance with the testamentary requirements of its founder, entered decrees removing the Board as trustee of Girard College and substituting for that purpose thirteen private citizens none of whom holds any public office or otherwise exercises any governmental power under the Commonwealth of Pennsylvania or any of its political or municipal subdivisions. It is these decrees which are now before us for review on the separate appeals of Foust, Felder, the Commonwealth of Pennsylvania and the City of Philadelphia (the State and City having voluntarily become parties to the proceedings). Simply stated, the question for decision is whether the action of the Orphans' Court is inconsistent with the opinion of the Supreme Court of the United States.

It is the appellants' contention that the Supreme Court's mandate required the Orphans' Court to order the Board of City Trusts to admit Foust and Felder to Girard College forthwith. With that, we cannot agree. Had the Supreme Court so intended, it would have said so just as it did in Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 851, 94 L.Ed. 1114, where there was involved a state-supported University's denial of admission to a Negro because of his race. The order of reversal in the Sweatt case also included a remand of the cause for further proceedings not inconsistent with the Supreme Court's opinion but, immediately preceding and as a part of the order of reversal, there is the specific ruling by the Court that 'the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School.' The mandate in the instant case contains no such directive.

The appellants' effort to make a 'segregation' issue out of Stephen Girard's private charity, merely because of the inability of the Board of City Trusts, as trustee, to comply with the donor's express directions, serves only to confuse and obscure the real issue involved as to the right of a private individual to bequeath his property for a lawful charitable use and have his testamentary disposition judicially respected and enforced. In Holdship v. Patterson, 1838, 7 Watts 547, 551, Mr. Chief Justice Gibson pertinently stated that a testamentary benefactor 'has an individual right of property in the execution of the trust, and to deprive him of it would be a fraud on his generosity. To appropriate a gift to a purpose or person not intended, would be an evasion of the donor's private dominion' (Emphasis supplied). As lately as In re Borsch's Estate, 1949, 362 Pa. 581, 586, 67 A.2d 119, we recognized, as constitutionally safe-guarded, the right of a benefactor to have enforced the limitations and restrictions affixed to his testamentary gift. The exercise of that right is but one of the manifestations of the right of private property which is fundamental to our social, economic and political order and whose preservation unimpaired is as vital to our Negro citizens as it is to their white brethren.

As we read the Supreme Court's opinion, what it holds, and all that it was presumably intended to hold, in view of what was then before the Court, is that the Board of City Trusts, being a State agency, is incapable of administering Girard College in strict compliance with the founder's prescribed racial restriction on admissions without being guilty of a violation of the Fourteenth Amendment. However, the Supreme Court did not say that there is any Constitutional or other legal barrier to the removal of the Board of City Trusts as trustee of Girard College in order that the Orphanage can be administered in accordane with all of the testator's express directions including the qualifications for admission to the student body. On the other hand, there is high authority for such procedure where a trustee is either unable or fails or refuses to administer a trust in accordance with the lawful directions of the settlor.

In Vidal v. Girard's Executors, 1844, 2 Howard 126, 188, 43 U.S. 126, 188, 11 L.Ed. 205, which was concerned with an attempt by Stephen Girard's heirs to nullify the Girard Trust, one of the grounds of attack was that the City of Philadelphia, a municipal corporation, was legally incapable of executing the trust. In rejecting this contention Mr. Justice Story, speaking for the Supreme Court, said: '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 perfect the objects of the trust.'

Subsequent to the 'Consolidation Act' of February 2, 1854, P.L. 21, 53 P.S. § 16251, which enlarged the physical area of the City of Philadelphia by incorporating therein outlying territory, Girard's heirs renewed their attack on the trust. The case again went to the Supreme Court of the United States where it was argued that the 'Consolidation Act' had 'either dissolved or destroyed the identity of the original corporation [City of Philadelphia], and it is consequently unable any longer to administer the trust.' Mr. Justice Grier, who delivered the opinion of the Court, said, 'Now, if this were true [that the City could no longer act as trustee of the Girard Estate], the only consequence would be, not that the charities or trust should fail, but that the chancellor should substitute another trustee': Girard v. City of Philadelphia, 1868, 7 Wall. 1, 12, 13, 74 U.S. 1, 12, 13, 19 L.Ed. 53.

The inability of the Board of City Trusts to apply constitutionally the racial criterion prescribed by the testator for admissions to Girard College affects the trustee and not the trust. As the opinion for the Orphans' Court so well states, 'It...

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