Girard's Estate, In re

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before STERN; HORACE STERN; BELL; BELL; MUSMANNO; The Majority picked up from the Fox case a mere fragment and then dropped it. If it had lingered a little longer in discussion with that epochal decision, it might have concluded that in reality it is
• Citation: 386 Pa. 548,127 A.2d 287
• Decision Date: 12 November 1956
• Parties: In re Estate of Stephen GIRARD, Deceased. Appeal of William Ashe FOUST. Appeal of Robert FELDER. Appeal of CITY OF PHILADELPHIA. Appeal of PHILADELPHIA COMMISSION ON HUMAN RELATIONS. Appeal of MAYOR OF THE CITY OF PHILADELPHIA. Appeal of COMMONWEALTH OF PENNSYLVANIA.

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127 A.2d 287 386 Pa. 548 In re Estate of Stephen GIRARD, Deceased.
Appeal of William Ashe FOUST.
Appeal of Robert FELDER.
Appeal of CITY OF PHILADELPHIA.
Appeal of PHILADELPHIA COMMISSION ON HUMAN RELATIONS.
Appeal of MAYOR OF THE CITY OF PHILADELPHIA.
Appeal of COMMONWEALTH OF PENNSYLVANIA. Supreme Court of Pennsylvania. Nov. 12, 1956.
Rehearing Denied Dec. 20, 1956.

[386 Pa. 550]

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

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

Herbert B. Cohen, Atty. Gen., Lois G. Forer, Deputy Atty. Gen., for the Commonwealth.

Joseph P. Gaffney, Owen B. Rhoads, Philadelphia, for all appellees.

S. Gordon Elkins, James K. Baker, Sidney Schulman, Leon I. Mesirov, Lewis M. Stevens, Philadelphia, filed brief on behalf of Philadelphia Fellowship Commission, amicus curiae.

[386 Pa. 549] Before STERN, C. J., and JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

[386 Pa. 550] HORACE STERN, Chief Justice.

While it may seem unfortunate that the court is obliged to sanction the exclusion of any child from even a private school or orphanage because of race, creed or color if otherwise entitled to admission, the Court is clearly of opinion that the unanimous decision of the Orphans' Court, supported by the learned and comprehensive opinions of Judge Bolger and Judge Lefever, must be affirmed, it being clearly understood at the outset that the beneficiaries of the charity of Stephen Girard are not being determined by the State of Pennsylvania, nor by the City of Philadelphia, not by this Court, but solely by Girard himself[386 Pa. 551] in the exercise of his undoubted right to dispose of his property by will, and, in so doing, to say, within the bounds of the law, who shall enjoy its benefits.

Stephen Girard,--merchant, mariner, banker, and philanthropist,--died on December 26, 1831; his will, dated February 16, 1830, and two codicils thereto, were probated at Phildelphia five days later. The will is, in many respects, a remarkable document; it was prepared with the aid of William J. Duane, distinguished leader of the bar in his day, and was the product of protracted consultations between them which extended over the course of some five or six weeks. Briefly summarized, it provided, after making a number of specific gifts to various institutions and individuals, for a devise and bequest of his entire residuary estate to 'The Mayor, Aldermen and Citizens of Philadelphia' ¹ their successors and assigns, in trust to erect a 'college' on a square of ground between High and Chestnut Streets and 11th and 12th Streets, in the City of Philadelphia; (by a codicil he changed this location to an estate he had purchased on 'the Ridge Road in Penn Township.') He stated that '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.' He provided for the selection of a competent number of instructors, teachers, assistants and other necessary agents, and that as many poor white male orphans, between the ages of six and ten years as the [386 Pa. 552] income should be adequate to maintain, should be admitted into the college, preference being given first to orphans born in the City of Philadelphia, secondly, to those born in any

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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. He provided that the orphans admitted into the college should 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 was to be paid to their health, and to that end they were to have suitable exercise and recreation, and he prescribed in detail the branches of education in which they should be instructed. He declared that 'together with the object just adverted to, [that is, the provision for the poor male white orphans] I have sincerely at heart the welfare of the city of Philadelphia, and, as a part of it, an desirous to improve the neighborhood of the River Delaware * * *', and accordingly, he bequeathed out of the residue the sum of $500,000 in trust to pave Delaware Avenue and Water Street and to make certain other improvements in that part of the city. After a bequest to the Commonwealth of Pennsylvania of $300,000 he left the remainder of his residuary estate in trust to apply the income to the further improvement and maintenance of the college, to enable the city to provide for a competent police force, and to improve the property and general appearance of the city. He stated that '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 for ever--after providing for the College as hereinbefore directed, as my primary object.' If the city should knowingly and wilfully violate any of the conditions in the will, the [386 Pa. 553] said remainder of the residue was given to the Commonwealth of Pennsylvania for the purposes of internal navigation, except that the income from his real estate in Philadelphia was to be forever applied to the maintenance of the college; if the Commonwealth failed to apply the bequest to the purposes mentioned, the said remainder was given to the United States of America for the purposes of internal navigation. There was a provision in the will that the city should keep separate accounts of the trust funds, which were not to be used for any but the prescribed purposes, and should furnish an annual account thereof to the legislature.

Because of the financial panic of 1837 and the consequent shrinkage of the assets of the estate there was some delay in the construction of the buildings and the college was not opened until January 1, 1848. Since that time, a period now of over a hundred years, it has been conducted in conformity with the purposes expressed in Girard's will. As is not altogether unusual in such cases, some of his heirs were disappointed at the disposition he made of his wealth, and accordingly they indulged in a number of attacks upon the validity of the will, the first of which resulted in the famous argument in the Supreme Court of the United States in 1844 between Daniel Webster on the one side and Horace Binney on the other. Two main questions were there involved, one, whether the city had the legal power to accept the trust confided to it, and the other, whether the trust in regard to the college was rendered invalid by a provision in the will that no ecclesiastic, missionary or minister of any sect whatsoever, should ever hold or exercise any station or duty whatever in the college, nor be admitted there for any purpose. (Girard carefully explained in his will that he made this provision because, there being [386 Pa. 554] a multitude of sects, he did not wish to expose the orphan children to any doctrinal or sectarian controversies.) The legislature, by Acts of March 24, 1832, P.L. 176, see 53 P.S. §§ 6791, 7411, 7433, and April 4, 1832, P.L. 257, had provided the necessary legislation for the improvement by the city of Delaware Avenue and Water Street, and had provided further that it should be lawful for the city to enact all such ordinances and do all such acts as might be necessary and convenient for the full and entire acceptance and execution of

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all the bequests, trusts and provisions in Girard's will, and for the appointment of such agents as might be deemed essential to the execution of the trusts. ² The Supreme Court held in Vidal v. Girard's Executors, 2 How. 127, 43 U.S. 127, 11 L.Ed. 205, in an elaborate opinion by Mr. Justice Story, that the city was legally capable of taking the bequest of the estate for the erection and support of the college upon the trusts designated in the will, and that these were valid charitable trusts and capable of being carried into legal effect.

In Girard v. City of Philadelphia, 7 Wall. 1, 74 U.S. 1, 19 L.Ed. 53, the decision in the Vidal case was affirmed, and it was held that the Consolidation Act had not changed the identity of the city so as to affect in any way its administration of the trust. The Court stated (as will be referred to again hereafter): 'Now, if this were true, [that the city had become unable to administer the trust] the only consequence would be, not that the charities or trust should fail, but that the chancellor should substitute another trustee.' In City of Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9, our own Court likewise held that the trusts created [386 Pa. 555] in the will were valid, and pointed out that the distinction must carefully be observed between the purposes and provisions of the trust itself and any problems or difficulties arising from the mode of its administration, the former not being affected by the latter; attention was called to the important fact that Girard stated that it was his 'primary object' to to construct and maintain the college. In City of Philadelphia v. Fox, 64 Pa. 169, it was once again held that Philadelphia could act as a trustee to carry out the trusts under Girard's will, and that the Act of June 30, 1869, P.L. 1276, 53 P.S. §§ 6481-6486, providing for the administration by a Board of Directors of City Trusts of the trusts confided to the city, the Board being 'dissociated from the general government of the city,' was a valid enactment. And finally, in Girard's Appeal, 4 Penny. 347, dealing with another attack on the will by Girard's heirs, it was held that they were concluded...