Summary
Appeal from the Circuit Court fór the. Eastern District of Pennsylvania; the case as presented by bill and answer being thus:
The,city of Philadelphia, as originally laid out in 1683, and as incorporated in 1701, was situated upon a rectangular plot of ground, bounded in one direction, by two streets called Vine and South, a mile -¡apart, and in the other by two rivers (the Delaware and Schuylkill), two miles apart;— the corporate title of the eity.being “ the-Mayor, Aldermen, and' Citizens of Philadelphia.” Upon the neck of land above described the corporate city co'ntinued to be contained until 1854; the inhabitants outside or adjoiriing it being incorporated, at different times, and as their numbers extended, into bodies politic, under- different names, by the State legislature, and with the city, forming the county of •Philadelphia. In 1798, the Devolution having dissolved the old corporation, the legislature incorporated the city with larger powers; and prior to 1854, nearly twenty acts had been -passed altering that law, and forming, the whole of them, what was popularly called the charter of the city; but as already said, from! 1683 to-1854, 'the city limits were the same.
In this state of things Stephen Girard,.in 1831, after sundry bequests to his relatives and friends, and to certain specified charities, and after announcing that his great and favorite object was- the establishment of a college for the education of poor- orphans, and that, together with the object adverted to, he had sincerely at heart the welfare of the city of Philadelphia, and as a part of it, wUs desirous to improve the neighborhood of the river Delaware, so that the eastern pari of the city might be made better to correspond with the -inter, rior — left by will the real and personal residue of an estate* of some millions of dollars, to “ the Mayor, Aldermen and Citizens of Philadelphia,” that is to say, to the city corporation above described, in trust, so far as regarded his real estate in Pennsylvania (this being the important part ©f his realty), that no part of it should ever be alienated, but should be let on lease, and that after repairing and improving it, the net residue should be applied to the same purposes as the residue of his personal estate, and that as regarded that, it should be held in trust as to $2,000,000, to expend it, or as much as might'he necessary, in constructing apd furnishing a,college and out-buildings for the education and maintenance of not. less than three hundred orphans. A lot near Philadelphia, of forty-five acres, was,devoted for these structures, and the orphans might come from any .part of Pennsylvania (orphans from the city-of Philadelphia having a preference dyer others outside), or from the'cities' of New York or New Orleans-.
After many and very special directions as to the college, followed by a bequest of $500,000 for a city purpose, the will proceeded.:
“If the income arising from that part of the said sum of •$2,000,000 remaining after the construction and furnishing of the college and out-buildings 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 adr mission, 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; 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.”
. This final residuary fund was directed to be invented, and the income applied—
“ 1st. To the further improvement and maintenance of the aforesaid college [as directed'in the last quoted paragraph],
‘■2d. To enable the city to improve its police.'
( “3d. To enable it 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.”
, “ To all which objects.,” the will proceeded, “ the prosperity of the city, and the health and cpmfort 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.”
In conclusion, he directed that if the city should wilfully violate any of the conditions of his will., the remainder of .his estate should go to the commonwealth of .Pennsylvania for certain purposes, excepting, however, the income from his real estate in the city and county of Philadelphia, which it was to hold for the college; and if the commonwealth failed so to apply it, the remainder should go in the same 'way to the United States.
The above described city corporation, “ the Mayor, Aldermen, and Citizens of Philadelphia,” having accepted the trust, and built and furnished the college and out-buildings', administered the charity through its organs until 1854. By that time twenty-eight municipal corporations, making the residue of the county, had grown up around the old “ city;” -some near; some far off, some populous, some occupied yet by farms.' They comprised “districts,” boroughs, towm ships, were of various territorial extent, and differed jn the details of-their respective organizations. In the year named, the legislature of Pennsylvania passed what is known in Philadelphia as the Consolidation Act.
By this act the administration' of all concerns of the twenty-nine corporations, including their debts, taxes, property, police, and whatever else pertained to municipal office,: and also the government of the county itself, were consolidated into one. All the powers, rights, privileges, and immunities incident to a municipal corporation, and necessary for the proper government of the same, and those of ' “the Mayor, Aldermen, and Citizens of Philadelphia,” and “all the powers, rights, privileges, and immunities, possessed and enjoyed by the other twenty-eight corporate bodies, which, with the old city, made up the county of Philadelphia;” and also “the board of police of the police district, the commissioners of the county of Philadelphia, the treasurer and auditor’-thereof, the county board, the commissioners of the sinking fund, aud the supervisors of the township,” were, by virtue of the process of consolidation, vested in “ the city of Philadelphia, ,as established by this act.” A police board was to fix the whole number of policemen “for the service of the whole city.” The “ right, title, and interest,” of the “ ¿several municipal corporations mentioned in this act, of, in, aud to all the lands, tenements, and hereditaments,. goods, chattels, moneys, effects, and of, in, and to all other property and estate whatsoever and wheresoever, belonging to any or either of,them,” were “vested in the city,of Philadelphia,” and all “ estates and incomes held in trust by the county, present city, and each of the townships, districts, aud other municipal corporations, united by this act,” were “ vested in the city, of Philadelphia, upon and for the same uses, trusts, limitations, charities, and conditions, as the same are now held by the said corporations respectively.” .The act also declared that the new city corporation should be “ vested with all the powers, rights, privileges, aud immunities,” of the old one. 'The “ net debt .of the county of Philadelphia, and. the several net debts of the guardians for the relief and employment of the poor of the city of Philadelphia,” and of the board of health, “ and of th'e controllers of the public schools,” and of such of the said twenty-nine municipalities, eighteen being enumerated, as had contracted debts, were consolidated' and formed into one debt, to be called the debt of the city of Philadelphia, in lieu of the present- separate debts so consolidated. The consolidation was carried into ful] effect. The act provided that th'e corporators.of the new'city, having elected a mayor, and councils, the councils should -direct the mayor to appoint a day when “all the powers, rights, privileges, and immunities possessed and enjoyed” by the various corporations, and those.also of thp.old city, should “'cease and terminate ;”' and- the councils did accordingly, by resolution, direct the mayor to “ issue his proclamation forthwith dissolving the different corporations superseded by the act, to take, effect.on the 30th instant;” and-in obedience thereto, the mayor, by public proclamation, dated the 24th’ June, 1854, proclaimed that “all the powers, rights, privileges, and immunities possessed and enjoyed ” by the now late twenty-eight municipalities, and'“by the present mayor and councilmen” of .the city of . Philadelphia, from the said 30th day óf June, 1854, should “ cease and terminate.”
The old city covered about two square m'iles; the new one, which-covéred the whole old county of Philadelphia, about a hundred and twenty-nine. In point of population, however, the old city embraced a fourth or fifth part of all the inhabitants of the new .one. In the popular branch of ■the new city legislature, composed of eighty-five members, the old city enjoyed twenty. In the higher branch it had six members,-the residue- having eighteen. The debt of the old city had been small, and its credit high. By the consolidation the debt became large.
By the Consolidation Act, it may be well to add, the. councils, of the city, in'laying taxes, were required so to. lay them as to show how.much'was [aid - for each object supported, respectively, and this exhibition was required by-the act to be printed on the tax-bills furnished to the tax-payers, as thus:
“ For the relief of the.- poor, 15 cents in the $100 of the assessed value of said property.
“ For public schools, 28 cents in the $100 of the assessed value of said property.
“ For lighting the city, 9 cents in the $100 of the assessed value of said property.
“For loan tax, 75 cents in the $100 of the assessed value of said property.
“ For expenses of police, 22 cents in the $100 of the assessed-value of said property, &v.\ cfee., cfee.”
In the erection and furnishing of the college' and outbuildings, the.whole fund of $2,000,000 was exhausted, and the whole income of the final-residuary fund was now habitually drawn upon for the maintenance and education of the oi’phans, numbering, at the time when the bill was filed, about three hundred and thirty, and limited to this number, because the income from even the l'esiduary fund was inadequate to the maintenance and education of a greater number. However, a part of Girard’s estate consisted of coal lands in Pennsylvania, not yet ripe for being worked; whose value was largely increasing, and from which, when it should be found expedient to work them, the revenue would, perhaps, be very great.
In this state of things certain heirs of Girard filed their bill in the court below, pi’aying an account; and that a master might be appointed to inquire into the gross value, and then present capacity for annual yield of the coal lands, and if such an inquiry showed a capacity for affording income “ immensely ” 'beyond all the wants of the’ college, and all proper charges on the estate, that then, if the court should be of opinion that the whole residuary estate was applicable to the college (a matter denied by the bill), that it would decree “such surplus, found to exist beyond and beside all possible and lawful wants of the college,” &e.,' to the complainants.
The court below dismissed the frill, which action of it was the ground of the appeal.
admitting tha/c the validity of the trusts of. Girard’s will had been settled by this court in Vidal v. Girard,* and stating that the present case turned upon the supposed intention -of the testator, contended:
1. That the "final residuary fund, appl'icable'to the support of the college, was only that described as “ my real estate in the city and county of Philadelphia, and the dividends of my stock in the Schuylkill Navigation .Company,” and that of the coal lands, and other rémaining property, Girard had died intestate.
2. That if this were not so, yet, that with the complete annihilation of the old city corporation, and its absorption or merger into the immense body politic created by-the Con-' solidation Act, the whole object of the testator, beyond the college,-fell to the ground; that
(i.) The new city became incompetent to act as a trustee, and
(ii.) That if it still were, competent, the trusts themselves, beyond the college, were now incapable of execution.
■The old city — “ the city” — was, after the college, the,sole •object of Girard’s bounty. The suburbs were absolutely excluded from it. He wished to improve, finish, and adorn municipal work already far advanced; an object practicable' when the city was but two miles square, and mostly built on; impracticable when an immense county — with swamps . to be drained, hills to be levelled, and valleys tobe raised; farm land largely, a suburb sempiternal — was Converted by name, but not in fact, into a city. The whole city legislature was changed. To disunite the control from the beneficial interest, and give the command to those who are not citizens, is to violate the. will. Yet those who, by the will, would now have the control of the Girard estates, were a feeble minority, incapable of protecting it against those who had an interest immediately opposed to its going to the limited space which the testator designed, and an interest 'directly in favor of appropriating it to themselves. The devise was to municipal discretion; the discretion of the late city; a discretion controllable.by its own citizens. . .The testator having excluded all parts but that known to him as the city, the new city could not hole] the estates for itself; that is to say, for the region of the twenty-nine municipalities, twenty-eight of which were not devised to, but excluded from devise. Having had a right, as he had, to devise as he . did, to'one municipality exclusively of the others, no legislature could make over his property to the excluded districts, contrary to his will. Conceding that perhaps the franchises of the old city might have been extended over' more territory, and its capacities enlarged, yet the annexai'.tion of twenty-eight municipalities, and the addition of sixty-four times more territory, with room for sixty-four times more population, and the consolidation and merger of them1 with the city, and. a complete fusion and recast of the whole this was a different thing. The old city had, moreover, been, imform, dissolved; and, if it had not béen, yet the body now pretending to vbe the devisee, was a body unknown to the testator; one composed of elements foYeign to his devise; in fact,-not his devisee. ' The devise had so lapsed. The new city was thus unfit and incapable of being trustee, even jf the trusts, after and beyond the college, were longer capable of being executed. But'
2. These trusts could not now, either administratively or arithmetipally, be executed.
In Soohan v. The City,* decided after the Consolidation Act, it was held that orphans,' born in the limits of the old city,' were entitled to the same preference as they hád previously enjoyed; in other words, that orphans born beyond the limits ,of the old city were not, in the sense of the will, orphans born in the city; in fact, that the old city and new city were not the same thing. Plow ,was the police of the old city since the consolidation to be,improved ? In tfye first pláce the old city no longer existed. Moreover, the testator could not endow one part of the police; for the force is not divided into parts.' There, is no police for .the old city apart 'from the, remaining region which with it makes the new city.' The police is one. • The policemen are by the terms of the actio be “for the whole city.”- It spreads undivided, and everywhere alike.
Or 'how apply the income, easily applied to beautify the ancient city, to improve'the “general appearance’-’ of a region d hundred and twenty-nine miles square, far the larger part of which was no city, but on the contrary, farms ?
. Or how apply it to diminish taxation in the old city, taxes being of 'necessity now laid uniformly throughout the whole vastly greater region alike ?
The doctrine -of cy-pres, illustrated in Richard Baxter’s well-known case,* was inapplicable to our States, where there was no established religion, and did not help the matter.' The surplus income beyond the wants of the college thus went, the learned counsel contended, to the heirs.
1. The college is the object to which all others are subséryient. . And if the trusts for municipal purposes cannot be executed by any one, then the whole trust estate must be applied for the purposes of the college.† Public trusts and charitable trusts may be considered as synonymous.‡
2/ The trust for municipal purposes was to have effect only if there was a surplus beyond the wants of the college; There is no such surplus.' /There can be, therefore, no question now. And with forty-five acres of ground to be covered by college buildings; and the whole State of Pennsylvania with the cities of New York and New Orleans as a field from which to bring fatherless children, it is not likely that any surplus will ever arise. Coal dug from coal lands is not income from those lands. It is the land itself." When the coal is exhausted, as by mining it will be, the land has little value. The proceeds of the coal.-must be invested as capital, and income from it alone used. •
8. The Consolidation Act by. express terms declared that' trusts held 'by any .of the old corporations should remaiti inviolate in the. neW. Independently .of which, the change'of ■name or enlargement of franchises does not destroy the identity, of a municipal corporation.*
. 4. The devise for municipal purposes — if it be a devise in trust and not a gift to the mayor, aldermen, &e., absolutely (in which, latter case clearly the heirs have no right to an . account) — can be executed if ever a surplus shall exist.. Our-answer .to the bill illustrates some of the modes. It says'}
“ The defendants can apply such surplus to the cost of ihain; taming-the police in that part of the new city which formerly-made the old one, and' reduce the ■ fate of taxation for the support of the police, on the property situated within these limits, to the difference between the sum applicable from the residuary' for that purpose, and the sum assessed on property outside of the said limits} and if the sum applicable from the said residuary-■for the expenses of the police,-will'amount to the whole sum necessary for such expenses within the said- -limits, they may levy mo tax'upon property within the said limits, for such expenses. If such surplus will exceed the amount needed for the police expenses within the said limits, they will be enabled to • imprové the corporate -property within the said limits, or apply it to improve the appea'ranceof that portion of the city without ' resort to taxation for that purpose. And if it will bo within the terms of the trust to disregard the specific objects men-. tipned, then they may and can pay such surplus, beyond that which is needed for the necessities of the college,'directly into the city treasury in aid of the tax. fund, and levy and assess' upon the property within the said limits a sum less the amount .so paid in aid of that fund.”†
5. If tbe trust for muriicipal purposes bas been' forfeited by tbe acts of the trustees, then by the terms of’ tbe will, it is forfeited to the commonwealth. But if it cannot be executed, and if the college is not entitled to take the - income, who is entitled to the funds? The commonwealth, as parens patria. If the devise had been to A. and his íieirs, and A., had died without heirs, the estate would not go to the heirs of the testator, but would escheat. There is no reason why, in the case of a devise in trust for a charity, which has vested and taken effect and fails, a different rule should exist.*
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
