Appeal of Vaux

Mr. Justice Paxson

delivered the opinion of the court,

This is an appeal from the refusal of the court below to approve a charter of incorporation. We are satisfied no appeal lies in such case. It is not given by any Act of Assembljn

There was also a certiorari taken out and this brings up the record, and we can review it so far as to see that the proceedings below are in accordance with the Act of Assembty. Under the Act of 1874 the approval of a charter is in the discretion of the court below. This charter evidently comes under the first class, and as to such charters the Act provides that they “ shall be presented to a law judge of the said county, accompanied by proof of the publication of the notice of such application, who is hereby required to peruse and examine said instrument, and if the same shall be in the proper form, and within the purposes named in the first class specified in the foregoing section, and shall appear lawful and not injurious to the community, he shall indorse thereon these facts, and shall order and decree thereon that the charter is approved,” &c. Thus it appears that the judge to whom the charter is presented must be satisfied that all the requirements of the Acts have been complied with, and also that the purpose of the corporation “ shall appear lawful and not injurious to the community.” This is certainly committing the approval of the charter to the legal sound discretion of the judge below. If such discretion is abused, not otherwise, we can review if upon certiorari.

We have no doubt it is lawful to organize a corporation for the “ fitting and training of orphan girls as nurses,” and had this been all, the court below would doubtless have approved it. 'Such an institution would have come within the first class as a benevolent and charitable association. But the very foundation of this charter, as the application shows, is the will of Eleanor P. Long, and it is to cany out the charitable objects of said will that said charter was prepared and presented to the court below. It is very clear that without ibis essential element the charter would possess no value, and the corporation could not take possession of the estate of Eleanor P. Long, and execute the trusts contained in her will. It was therefore tbe plain duty of the court below to examine the will to see if the charter was in accordance therewith. If it is not, if its organization and object are not in harmony with the will : if an attempt is being made to engraft upon this will a trust different in form and substance from that specified in it, then it was plainly an unlawful charter, and tbe learned judge below exercised a sound discretion in rejecting it.

Our only difficulty in reviewing tills branch of tbe ease is that tbe will does not come up witli the writ of certiorari. There was no copy of tbe will attached to tbe charter as there ought to Lave been. We have however, the opinion of the court below, in which the facts sufficiently appear, and it is the duty of the court, where a charter is approved to indorse thereon that its object is lawful, &c. It would seem to bo equally clear that when a charter is not approved the reasons therefor should also be indorsed, and thus becomes a part of the record.

We are all of opinion that the charter does not conform to the will. The trust set forth in the latter instrument is “ to establish an industrial home for orphan girls in the city of Philadelphia, especially for the orphan children of soldiers wbo served in the late civil war in the defence of their country, and for the orphan children of firemen of the said city whose lives have been sacrificed for the public benefit and in the discharge of their duties.” The objects of the said charity, as more particularly stated by the testatrix are : “ that tbe said orphan children shall be maintained, clothed and well educated and instructed in domestic and industrial duties, such as will fit them for employment in stores, or for seamstresses or domestics, or for any analagous occupations.”

The charter recites the foregoing provision of the will, but follows such recital with the words: “It being intended, however, that the primary object of the Home shall be the fitting and training of such orphan girls as nurses.”

The charily indicated by the testatrix is a broad and noble one, and with the large fund appropriated by her for its support, is a munificent one. The charity designated in the charter is commendable, but is not what the testatrix intended. A home for orphan children, where they shall be maintained, clothed and educated in order to qualify them to earn their living in stores, as seamstresses or as domestics when they reach a suitable age, is one thing; a training school for nurses is another and very different matter. Children are not trained as nurses; the duties of such a position are learned later in ]ife. The manifest object of the charter is to limit the application of the testatrix’s charity to this one purpose. It is obvious that this was not intended by her; and it is more than doubtful if she contemplated it as one of the objects of her bounty.

We also fully indorse what was said by the learned judge below upon another point. By the will the testatrix names four ladies as corporators, with such other persons as may be named by her executors. She evidently contemplated and intended that females should have control in part, at least, over the corporation. All of the corporators named in the charter save one, are males, and by its term all vacancies in the future are to be filled by males, save “that Rebecca Stroud may be eligible for election.” It is true the charter provides for an “ Advisory Board ” of not less than fifteen females “ who shall be subject in all cases to the control of the board of directors, and shall be elected by them.” The charter gives them no control of any kind; they are mere figure heads. We need not discuss the wisdom of having the corporators, or at least a portion of them, females. Yet in a corporation founded and endowed by a female for the care of orphan children, it would not be difficult to find good reasons for such a provision and plenty of them. It is our duty to see that this noble charity is organized as its founder intended, and we are of opinion that the proposed charter does not carry out the scheme she had in view. We therefore approve the action of the learned and able judge of Common Pleas.

The appeal is quashed, and the order refusing to approve the charter is affirmed upon the certiorari.