sembly, and to make such purchases or agree ment as will enable the mayor, aldermen and Citizens of Philadelphia to remove or pull down all the buildings. fences, and obstructions, which may be in the way, and to prohibit all hailling, fences, or erections of any kind to the eastward of said avenue, &c., &c.; and he proceeded to give other minute directions Touching the same.

The testator then bequeathed to the Commonwealth of Pennsylvania the sum of $300,for the purpose of internal improvement by canal navigation, to be paid into the State reasury as soon as such laws shall be enacted by the Legislature to carry into effect the several improvements before specified, and certain Cher improvements.

far as respected the bequests of the $500,000 for the Delaware Avenue and the $300,000 for internal improvement by canal navigation, according to the request of the testator.

The present bill is brought by the heirs-atlaw of the testator, to have the devise of the residue and remainder of the real estate to the mayor, aldermen and citizens of Philadelphia in trust as aforesaid to be declared void, for the want of capacity of the supposed devisees to take lands by devise, or if capable of taking generally by devise for their own use and benefit, for want of capacity to take such lands as devisees in trust; and because the objects of the charity for which the lands are so devised in trust are altogether vague, indefinite, and uncertain, and so no trust is created by the said will which is capable of being executed or of being cognizaable at law or in equity, nor any trust estate devised that can vest at law or in equity in any existing or possible cestui que trust; and therefore the bill insists that as the trust is void, there is a resulting trust thereof for the heirs

The testator then bequeathed the remainder of the residue of his personal estate in trust to invest the same in good securities, &c., so that the whole shall form a permanent fund, and to apply the income thereof to certain specified purposes, which he proceeds to name; and then ad "To all which objects," &c. (See state-at-law of the testator; and the bill accordingly ent of the reporter.)

These are the material clauses of the will which seem necessary to be brought under Car review in the present controversy. By a codicil dated the 20th of June, A. D. 1831, the testator made the following provision: Whereas I, Stephen Girard, the testator amed in the foregoing will and testament, sted February 16th, 1830, have since the exestion thereof, purchased several parcels and pieces of land and real estate, and have built andry 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 tention, and I direct, that the orphan estabshment, provided for in my said will, instead being built as therein directed upon my quare of ground between High and Chestnut Eleventh and Twelfth streets, in the city Philadelphia, shall be built upon the estate purchased from Mr. W. Parker, and I hereby devote the said estate to that purpose, exensively, in the same manner as I had devoted the said square, hereby directing that all the Improvements and arrangements for the said rphan establishment, prescribed by my said will, as to said square, shall be made and excuted upon the said estate, just as if I had in ny will devoted the said estate to said purpose consequently, the said square of ground is to 186*] 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 me uses and purposes as are declared in secn twenty of my will, it being my intention hat the said square of ground shall be built ipon, and improved in such a manner as to secure a safe and permanent income for the Purposes stated in said twentieth section." The tator died in the same year; and his will and icil were duly admitted to probate on the 1st of December of the same year.

The Legislature of Pennsylvania passed the quisite laws to carry into effect will, so

seeks a declaration to that effect and the relief consequent thereon, and for a discovery and account, and for other relief.

The principal questions, to which the arguments at the bar have been mainly addressed, are: First, whether the corporation of the city of Philadelphia is capable of taking the bequest of the real and personal estate for the erection and support of a college upon the trusts and for the uses designated in the will. Second, whether their uses are charitable uses valid in their nature and capable of being carried into effect consistently with the laws of Pennsylvania. Third, if not, whether, being void, the fund falls into the residue of the testator's estate, and belongs to the corporation of the city, in virtue of the residuary clause in the will; or it belongs, as a resulting or implied trust, to the heirs and next of kin of the testator.

As to the first question, so far as it respects the capacity of the *corporation to take [*187 the real and personal estate, independently of the trusts and uses connected therewith, there would not seem to be any reasonable ground for doubt. The Act of 32 and 34 Henry VIII. respecting wills, excepts corporations from taking by devise; but this provision has never been adopted into the laws of Pennsylvania or in force there. The Act of 11th of March, 1789, incorporating the city of Philadelphia, expressly provides that the corporation, thereby constituted by the name and style of the Mayor, Aldermen and Citizens of Philadelphia, shall have perpetual succession, "and they and their successors shall at all times forever be capable in law to have, purchase, take, receive, possess, and enjoy lands, tenements and hereditaments, liberties, franchises and jurisdictions, goods, chattels, and effects, to them and their successors forever, or for any other or less estate," &c., without any limitation whatsoever as to the value or amount thereof, or as to the purposes to which the same were to be applied, except so far as may be gathered from the preamble of the act, which recites that the then administration of government within the city of Philadelphia was in its form "inadequate to the suppression of vice

ness.

and immorality, to the advancement of the such a case, the trust itself being good, will be public health and order, and to the promotion executed by and under the authority of a court of trade, industry, and happiness, and in order of equity. Neither is there any positive obto provide against the evils occasioned thereby, jection in point of law to a corporation taking it is necessary to invest the inhabitants thereof property upon a trust not strictly within the with more speedy, rigorous, and effective pow- scope of the direct purposes of its institution, ers of government than at present established." but collateral to them; nay, for the benefit of a Some, at least, of these objects might certainly stranger or of another corporation. In case of be promoted by the application of the city Green v. Rutherforth (1 Ves. R., 462), a devise property or its income to them-and especially was made to St. John's College in Cambridge the suppression of vice and immorality, and of the perpetual advowson of a rectory in trust. the promotion of trade, industry, and happi- that whenever the church should be void and And if a devise of real estate had been his nephew be capable of being presented made to the city directly for such objects, it thereto, they should present him; and on the would be difficult to perceive why such trusts next avoidance should present one of his name should not be deemed within the true scope of and kindred, if there should be anyone capa the city charter and protected thereby. ble thereof in the college; if none such, they should present the *senior divine then [*189 fellow of the college, and on his refusal the next senior divine, and so downward; and, if all refused, they should present any other per son they should think fit. Upon the argument of the cause, an objection was taken that the case was not cognizable in a court of equity, but fell within the jurisdiction of the visitor. Sir John Strange (the Master of the Rolls) who assisted Lord Hardwicke at the hearing of the cause, on that occasion said: "A private person would, undoubtedly, be compellable to execute it (the trust); and, considered as a trust, it makes no difference who are the trustees, the power of this court operating on them in the capacity of trustees. And though they are a collegiate body whose founder has given a visitor to superintend his own foundation and bounty; yet as between one claiming under a separate benefactor and these trustees for special purposes, the court will look on them as trustees only, and oblige them to execute it under direction of the court." Lord Hardwicke, after expressing his concurrence in the judgment of the Master of the Rolls, put the case of the like trust being to present no member of another college, and held that the court would have jurisdiction to enforce it.

But without doing more at present than merely to glance at this consideration, let us proceed to the inquiry whether the corporation of the city can take real and personal property in trust. Now, although it was in early times held that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in the person; yet that doctrine has been long since exploded as unsound, and too artificial; and it is now held, that where the corporation has a legal capacity to take real or personal estate, there it may take and hold it 188*] upon trust, in the same manner and to the same extent as a private person may do. 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. This will be sufficiently obvious upon an examination of the authorites; but a single case may suffice. In Sonley v. The Clockmaker's Company (1 Bro. Ch. R., 81), there was a devise of freehold es tate to the testator's wife for life, with remainder to his brother C. in tail male, with remain der to the Clockmaker's Company, in trust to sell for the benefit of the testator's nephews and nieces. The devise being to a corporation, was, by the English statute of wills, void, that statute prohibiting devises to corporations, and the question was, whether the devise being so void, the heir-at-law took beneficially or subject to the trust. Mr. Baron Eyre, in his judgment, said, that although the devise to the corporation be void at law, yet the trust is sufficiently created to fasten itself upon any estate the law may raise. This is the ground upon which courts of equity have decreed, in cases where no trustee is named. Now, this was a case not of a charitable devise, but a trust created for nephews and nieces; so that it steers wide from the doctrines which have been established as to devises to corporations for charities as appointments under the statute of 43 Elizabeth: a fortiori, the doctrine of this case must apply with increased stringency to a case where the corporation is capable at law to take the estate devised, but the trusts are utterly dehors the purposes of the incorporation. In

But if the purposes of the trust be germane to the objects of the incorporation; if they relate to matters which will promote, and aid, and perfect those objects; if they tend (as the charter of the city of Philadelphia expresses it) "to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness," where is the law to be found which prohibits the corporation from taking the devise upon such trusts, in a State where the statutes of mortmain do not exist (as they do not in Pennsylvania), the corporation itself having a legal capacity to take the estate as well by devise as otherwise? We know of no authorities which inculcate such a doctrine or prohibit the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and regulations and powers. If, for example, the testator by his present will had devised certain estate of the value of $1,000,000 for the purpose of applying the income thereof to supplying the city of Philadelphia with good and wholesome water for the use of the citizens, from the river Schuylkill (an object which some thirty or forty years ago would have been thought of transcendant benefit), why, although

not specifically enumerated among the objects | there is a positive authority conferred upon the of the charter, would not such a devise upon city authorities to act upon the trusts under the 190*] such a trust have been valid, *and with- will, and to administer the same through the in the scope of the legitimate purposes of the instrumentality of agents appointed by them. corporation, and the corporation capable of ex- No doubt can then be entertained, that the Legecuting it as trustees? We profess ourselves islature meant to affirm the entire validity of unable to perceive any sound objection to the those trusts, and the entire competency of the validity of such a trust; and we know of no au- corporation to take and hold the property dethority to sustain any objection to it. Yet, in vised upon the trusts named in the will. substance, the trust would be as remote from the express provisions of the charter as are the objects (supposing them otherwise maintaina ble) now under our consideration. In short, it appears to us that any attempt to narrow down the powers given to the corporation so as to exclude it from taking property upon trusts for purposes confessedly charitable and beneficial to the city or the public, would be to introduce a doctrine inconsistent with sound principles, and defeat instead of promoting the true policy of the State. We think, then, that the charter of the city does invest the corporation with powers and rights to take property upon trust for charitable purposes, which are not otherwise obnoxious to legal animadversion; and, therefore, the objection that it is incompetent to take or administer a trust is unfounded in principle or authority, under the law of Pennsylvania. It is manifest that the Legislature of Pennsylvania acted upon this interpretation of the charter of the city, in passing the Acts of the 24th of March, and the 4th of April, 1832, to carry into effect certain improvements and execute certain trusts, under the will of Mr. Girard. The preamble to the trust act, expressly states that it is passed "to effect the improvements contemplated by the said testator, and to execute, in all other respects, the trusts created by his will," as to which, the testator had desired the Legislature to pass the necessary laws. The tenth section of the same act, provides "That it shall be lawful for the mayor, aldermen and citizens of Philadelphia, to exercise all such jurisdiction, enact all such ordinances, and to do and execute all such acts and things whatsoever, as may be necessary and convenent for the full and entire acceptance, execution, and prosecution of any and all the devises, bequests, trusts, and provisions contained in the said will, &c., &c.; to carry which into effect," the testator had desired the Legislature to enact the necessary laws. But what is more direct to the present purpose, because it imports a full recognition of the validity of the devise for the erection of the college, is the provision of the 11th section of the same act, which declares "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 191*] same shall be recommended by the trustees or directors of the said college, and approved by a majority of the select and common councils of the city of Philadelphia." The other act is also full and direct to the same purpose, and provides, "That the select and common councils of the city of Philadelphia, shall be, and they are hereby authorized to provide, by ordinance or otherwise, for the election or appointment of such officers and 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." Here, then,

It is true that this is not a judicial decision, and entitled to full weight and confidence as such. But it is a legislative exposition and confirmation of the competency of the corporation to take the property and execute the trusts; and if those trusts were valid in point of law, the Legislature would be estopped thereafter to contest the competency of the corporation to take the property and execute the trusts, either upon a quo warranto or any other proceeding, by which it should seek to devest the property, and invest other trustees with the execution of the trusts, upon the ground of any supposed incompetency of the corporation. And if the trusts were in themselves valid in point of law, it is plain that neither the heirs of the testator, nor any other private persons, could have any right to inquire into, or contest the right of the corporation to take the property, or to execute the trusts; but this right would exclusively belong to the State in its sovereign capacity, and in its sole discretion, to inquire into and contest the same by a quo warranto, or other proper judicial proceeding. In this view of the matter, the recognition and confirmation of the devises and trusts of the will by the Legislature, are of the highest importance and potency.

We are, then, led directly to the consideration of the question which has been so elaborately argued at the bar, as to the validity of the trusts for the erection of the college, according to the requirements and regulations of the will of the testator. That the trusts are of an eleemosynary nature, and charitable uses in a judicial sense, we entertain no doubt. Not only are charities for the maintenance *and [*192 relief of the poor, sick, and impotent, charities in the sense of the common law, but also donations given for the establishment of colleges, schools, and seminaries of learning, and especially such as are for the education of orphans and poor scholars.

The statute of the 43 of Elizabeth (ch. 4) has been adjudged by the Supreme Court of Pennsylvania not to be in force in that State. But then it has been solemnly and recently adjudged by the same court, in the case of Zimmerman v. Andres (January Term, 1844), that "it is so considered rather on account of the inapplicability of its regulations as to the modes of proceeding, than in reference to its conservative provisions." "These have been in force here 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." Nor is this any new doctrine in that court; for it was form ally promulgated in the case of Witman v. Lex (17 Serg. & Rawle, 88), at a much earlier period (1827).

Several objections have been taken to the present bequest to extract it from the reach of these decisions. In the first place, that the cor

charitable use before the statute of Elizabeth curious and interesting collection of the chanAttorney-General v. The Master of Brentwood cery records in the reign of Queen Elizabeth, School, 1 Mylne & Keen, 376), said: "Although and in the earlier reigns. Among these are 195] at this time no legal devise could be found many cases in which the Court of Chanmade to a corporation for a charitable use, yet cery entertained jurisdiction over charities long Cands so devised were in equity bound by a before the statute of 43 Elizabeth; and some trust for the charity, which a court of equity fifty of these cases, extracted from the printed would then execute.” In point of fact the calendars, have been laid before us. They charity was so decreed in that very case, in the establish in the most satisfactory and conclusive 12th year of Elizabeth. But what is still more manner that cases of charities where there were important is the declaration of Lord Redes- trustees appointed for general and indefinite dale, a great judge in equity, in The Attorney- charities, as well as for specific charities, were General v. The Mayor of Dublin (1 Bligh. R., familiarly known to, and acted upon, and en312, 347, 1827), where he says: "We are re- forced in the Court of Chancery. In some of ferred to the statute of Elizabeth with respect these cases the charities were not only of an to charitable uses, as creating a new law upon uncertain and indefinite nature, but, as far as the subject of charitable uses. That statute we can gather from the imperfect statement in only created a new jurisdiction; it created no the printed records, they were also cases where Dew law. It created a new and ancillary there were either no trustees appointed, or the urisdiction, a jurisdiction created by commis- trustees were not competent to take. These on, &c.; but the proceedings of that commis- records, therefore, do in a remarkable manner son were made subject to appeal to the Lord confirm the opinions of Sir Joseph Jekyll, Chancellor, and he might reverse or affirm Lord Northington, Lord Chief Justice Wilmot, That they had done, or make such order as he Lord Redesdale, and Lord Chancellor Sugden. might think fit for reserving the controlling Whatever doubts, therefore, might properly be jurisdiction of the Court of Chancery as it entertained upon the subject when the case of existed before the passing of that statute; and The Trustees of the Philadelphia Baptist Asthere can be no doubt that by information by sociation v. Hart's Executors (4 Wheat., 1) was The Attorney-General the same thing might be before this court (1819), those doubts are endone." He then adds, "the right which the tirely removed by the late and more satisfactory Attorney General has to file an information, is sources of information to which we have right of prerogative. The king, as parens alluded. tria, has a right, by his proper officer, to call pon the several courts of justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who are incompetent to act for themselves, as in the case of charities and other cases." So that Lord Redesdale maintains the jurisdiction in the Croadest terms, as founded in the inherent Jurisdiction of chancery independently of the Catute of 43 Elizabeth. In addition to these diet and doctrines, there is the very recent case of The Incorporated Society v. Richards Drury & Warren R., 258), where Lord Chancellor Sugden, in a very masterly judgment, upon a full survey of all the authorities, and where the point was directly before him, held the same doctrine as Lord Redesdale, and expressly decided that there is an inherent arisdiction in equity in cases of charity, and at charity is one of those objects for which a ourt of equity has at all times interfered to take good that which at law was an illegal or informal gift; and that cases of charity in courts of equity in England were valid independently A and previous to the statute of Elizabeth.

Mr. Justice Baldwin, in the case of The will f Sarah Zane, which was cited at the bar and pronounced at April Term of the Circuit Court, in 1833, after very extensive and learned searches into the ancient English authorities and statutes, arrived at the same conclusion 196*] in which the District Judge, the late Amented Judge Hopkinson, concurred; and that opinion has a more pointed bearing upon the present case, since it included a full review f the Pennsylvania laws and doctrines on the bject of charities.

But very strong additional light has been rown upon this subject by the recent publiations of the commissioners on the public cords in England, which contain a very

If, then, this be the true state of the common law on the subject of charities, it would, upon the general principal already suggested, be a part of the common law of Pennsylvania. It would be no answer to say, that if so it was dormant, and that no court possessing equity powers now exists, or has existed in Pennsylvania, capable of enforcing such trusts. The trusts would nevertheless be valid in point of law; and remedies may from time to time be applied by the Legislature to supply the defects. It is no proof of the non-existence of equitable rights that there exists no adequate legal remedy to enforce them. They may during the time slumber, but they are not dead.

But the very point of the positive existence of the law of charities in Pennsylvania, has been (as already stated) fully recognized and enforced in the State courts of Penn- [*197 sylvania, as far as their remedial process would enable these courts to act. This is abundantly established in the cases cited at the bar, and especially by the case of Witman v. Lex (17 Serg. & Rawle, 88), and that of Sarah Zane's Will, before Mr. Justice Baldwin and Judge Hopkinson. In the former case, the court said "that it is immaterial whether the person to take be in esse or not, or whether the legatee were at the time of the bequest a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to those objects; or whether their corporate designation be mistaken. If the intention sufficiently appears in the bequest, it would be valid." In the latter case certain bequests given by the will of Mrs. Zane to the yearly meeting of Friends in Philadelphia, an unincorporated association, for purposes of general and indefinite charity, were, as well as other bequests of a kindred