Citation Numbers: 43 U.S. 127
Judges: Story
Filed Date: 1/15/1844
Status: Precedential
Modified Date: 9/9/2022
delivered the opinion of the court.
This cause has been argued with great learning and ability. Many topics have been discussed in the arguments, as illustrative of the-principal grounds of controversy, with elaborate care, upon which, however, in the view which we have taken of the merits of the cause, it is not necessary for us to express any opinion, nor even to allude to their bearing or application. We shall, therefore, confine ourselves to the exposition of those questions and principles which, in our judgment, dispose of the whole matters in litigation; so far at least as they are proper for the final adjudication of the present suit.
The late Stephen Girard, by Lis will dated the 25th day of December, A. D. 1830, after making sundry bequests to his relatives and friends, to the city of New Orleans, and to certain specified charities, proceeded in the 20th clause of that will to make the following bequest, on which the present controversy mainly hinges. “ XX. And whereas I have been for a long time impressed^’ &o. [See the statement prepared by the reporter.]
The testator then proceeded to give a minute detail of the plan and structure of the college, and certain rules and regulations for the due management and government thereof, and the studies to be pursued therein, « comprehending reading, writing, grammar, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical, and experimental philosophy, the
The persons who are to receive the benefits of the institution he declared to be, “ poor white male orphans between the ages' of six and ten years; and no orphan should be admitted until the guardians, or. directors of the poor, or other proper guardian, or other competent. authority, have given by indenture, relinquishment or otherwise, adequate power to the mayor, aldermen, and citizens of Philadelphia, or to directors or others by them appointed, to enforce in relation to each Orphan every proper restraint, and to prevent relatives or others from interfering with, or withdrawing such orphan from the institution.” The testator then provided for a preference, “ first, to orphans bom in the city of Philadelphia; secondly, to those bom in any other part of Pennsylvania; thirdly, to those born in the city of Ñew York; and lastly, to those bom in the' city of New Orleans.” The testator- further provided that the orphan scholars who shall merit it, shall remain in the college until they shall respectively arrive at between fourteen and eighteen years of age.”
The testator then, after suggesting that in relation -to the organization of the college and its appendages, he leaves necessarily many details to the mayor, aldermen, and citizens of Philadelphia, and their successors, proceeded to say: “ there are, however, some restrictions whifeh I consider it my duty to prescribe, and to be, amongst others, conditions on which my bequest for said college is made and to be enjoyed, namely: First, I enjoin and require,” &c. [See statement of the reporter.] This second injunction and requirement is that which has beén so elaborately commented on at the bar, as derogatory to the Christian religion, and upon which something will be hereafter suggested in the course of this opinion.
The testator then bequeathed the sum of $500,000 to be invested, and the income thereof applied to lay out, regulate, and light and pave a passage or street in the east part of the city of Philadelphia, fronting the river Delaware, not less than twenty-one feet wide and to be called Delaware Avenue, &c.; and to this intent to obtain such
The testator then bequeathed to the eolnmonwealth of Pennsylvania the sum of $300,000 for the purpose of internal improvement by canal navigation, to be paid into the state treasury as soon as such laws shall be enacted by the legislature to carry into effect the several improvements before specified, and certain other improvements.
The testator then bequeathed the remainder of the residue of his personal estate in trust to invest the same in good securities, &e., 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 said: “ To all which objects,”&e.'' [See statement of the reporter.]
These are the material clauses of the will which seem necessary •to be brought under our review in the present controversy. By a codicil dated the 20th of June, A. D. 1831, the testator máde the following provision: « Whereas I, Stephen Girard, the testator named in the foregoing will arid testament, dated February 16th, 1830, have since the execution thereof, purchased several parcels and pieces of land and real estate, and have built sundry 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, out-buildings, 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 intention, and I direct, that- the orphan establishment, provided for in my said will, instead of being built .as therein directed-upon my square of ground between High and Chestnut and Eleventh and Twelfth streets, in the city of Philadelphia, shall be built upon the estate so purchased from Mr. W. Parker, and I hereby devote the said estate to that purpose, exclusively, in the same manner as I had devoted the said square, hereby directing that all the improvements and arrangements for the. said orphan establishment, prescribed by my said will, as to said square, shall be made and executed upon the said estate, just as if I had in my will devoted the. said estate to said purpose — consequently, the said square of ground is- to consti
The legislature of Pennsylvania passed the requisite laws to carry into effect the will, so 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 at law 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 tru^t ,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 cognisable 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 at law of the testator '; and the bill accordingly seeks a declaration to that .effect and the relief consequent théreon, 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: Secondly, whether these uses are charitable uses valid in their nature and capable of being carried into effect consistently with the laws of Pennsylvania: Thirdly, 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 firs: question, so far as it.respects the capacity of the
Bui 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 mnes held that a corporation could not take and hold real or personal estate in trust upon the ground that theie 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 upon trust, in the same
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 valufe of $1,000,000 for the purpose of applying, the income thereof to supplying the city of Philadelphia with good Emd 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 of 'the charter, wc rid not such a devise upon such a trust have been valid,
It is manifest that the legislature of Pennsylvania aeted uf>on 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, provide? “ 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 convenient 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 same shall be recommended by
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 tlie 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 tlie 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 vi. w 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
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 formally promulgated in the case of Witman v. Lex, 17 Serg. and 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 corporation of the city is incapable by law of taking the donation for such trusts. This objection has been already sufficiently considered. In the next place, it is said, that the beneficiaries who are to receive the benefit of the charity are too uncertain and indefinite to allow the bequest to have- any legal effect, and hence the donation is void, and the property results to the heirs. And in support of this argument we are pressed by the argument that charities of such an indefinite nature are not good at the common law, (which is admitted on all sides to be the law of Pennsylvania, so far as it is applicable to its institutions and constitutional organization and civil rights and privileges) and hence, the charity fails; and the decision of this court in .the case of the trustees of the Philadelphia Baptist Association v. Hart’s Executors, 4 Wheat. R. 1, is strongly relied on as fully, in point. - There are two circumstances which materially distinguish that case from the.one now before the court. The first is, that that case arose under the law of Virginia, in which state the statute of 43 Elizabeth, ch. 4, had been expressly and entirely abolished by the legislature, so that no aid whatsoever could be derived from its provisions to sustain the bequest: The second is, that the donees (the trastees) were an unincorporated association, which had no legal capacity to take and hold the donation in succession for the purposes of the trust, and the beneficiariés also were uncertain and indefinite.
There are, however, dicta of eminent judges, (some of which were commented upon in the case of 4 Wheat. R. 1,) which-do certainly support the doctrine that charitable uses might be enforced in chancery upon the general jurisdiction of the court, independently of ¿he statute of 43 of Elizabeth; and that the jurisdiction had been acted upon not only subsequent but antecedent to that statute. Such was the opinion of Sir Joseph Jekyll in Eyre v. Countess of Shaftsbury, (2 P. Will. R. 102, 2 Equity Abridg. 710, pl. 2,) and that of Lord Northington in Attorney-General v. Tancred, 1 Eden, R. 10, (S. C. Ambler, R. 351, 1 Wm. Black. R. 90,) and that of Lord Chief Justice Wilmot in his elaborate judgment in Attorney-General v. Lady Downing, Wilmot’s Notes, p. 1, 26, given after an examination of all the leading authorities. Lord Eldon, in the Attorney-General v. The Skinner’s Company, 2 Russ. R. 407, intimates in clear terms his doubts whether the jurisdiction of chancery over charities arose solely under the statute of Elizabeth; suggesting that the statute has perhaps been construed with reference to a supposed antecedent jurisdiction of the court) by which void devises to charitable purposes were sustained. Sir John Leach, in the case of a charitable use before the statute of Elizabeth, (Attorney-General v. The Master of Brentwood School, 1 Mylne and Keen, 376,) said: “ Although at
Mr. Justice Baldwin, in the case of tire will .of Sarah Zane, which was cited at the bar and pronounced at April term of the Circuit Court, in 1833, after very extensive and learned researches into the ancient English authorities and statutes, arrived at the same conclu
But very strong additional light has been thrown upon this subject by the recent publications of the Commissioners on the public Records in England, which contain a..very curious and interesting collection of the chancery records in the- reign of Queen Elizabeth, and in the earlier reigns. Among these are found many cases in which the .Court of Chancery, entertained jurisdiction over charities long before, the statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish in the most satisfactory and conclusive manner that cases of charities where there were trustees appointed for general and indefinite charities, as well as for sp'ecific charities, were familiarly known to, and acted upon, and enforced in the Court of Chancery. In some of these cases the charities, were not only of an uncertain and indefinite nature,, but, as far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take. These records, therefore, do in a remarkable manner, confirm the opinions of Sir Joseph Jekyll, Lord Northington, Lord Chief Justice Wilmot, Lord Redesdale, and Lord Chancellor Sugden.' Whatever doubts, therefore, might properly be entertained upon the subject when the case of the Trustees of the Philadelphia Baptist Association v. Hart’s Executors, 4 Wheat. 1, was before this court, (1819,) those doubts are entirely removed by the late and more satisfactory sources of information to which we have alluded.
If, then, this be the true state of the' common law on the subject of charities, it would, upon the general principle 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 pf 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 bf charities in Pennsylvania, has been (as already stated) fully recognised and
This objection is that the foundation of the college upon the principles and exclusions prescribed by the testator, is derogatory and hostile to the Christian religion, and so is void, as being against the common law and public ■ policy of Pennsylvania; and .this for two reasons: First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same: and Secondly,-because it limits the instruction to be given to the scholars to pure morality, and general benevolence, arid a love qf truth, sobriety, and industry, thereby excluding, by implication, -all instruction in the Christian religion.
In considering this objection, the court are not at liberty to travel out of the record in order to ascertain what were the private religious opinions of the testator, (of which indeed we can know nothing,)'nor to consider whether the scheme of education by him prescribed, is such as we ourselves should approve, or as is best adapted to accomplish the great aims and ends of education, Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its constitution- and laws and judicial decisions make known to us. The question, what
It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this.proposition is to be received •with its appropriate qualifications, and in connection with the bill of rights of that state, as found in its constitution of government. The constitution of 1790, (and the like provision will, in substance, be found in the constitution of 1776, and in the existing constitution of 1838,) expressly declares, « That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, contról or interfere with the rights of conscience •; and no preference shall ever be given by law to any religious establishments or modes of worship.”' Language more comprehensive for the complete protection of every variety óf religious opinion could scarcely be used; and it must have been intended to extend equally to all sects, whether they believed in Christianity or. not, and whether they were Jews or infidels.' So- that We are compelled to admit that although Christianity be a part of the common law of the state, yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public. Such Was the doctrine of the Supreme Court of Pennsylvania in Updegraff v. The Commonwealth, 11 Serg. and Rawle, 394.
It is unnecessary for" us, however, to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college, for the propagation of Judaism, or Dejsm, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country; and therefore it must be made out by clear
Now, in the present- case, there is no pretence to say that any such positive or express provisions exist, or are even shadowed forth in the will. The testator does not say that Christianity shall not be taught in the college. But only that no ecclesiastic of any sect shall hold or exercise any station or duty ir> the college. Suppose, instead of this, he had said that no person but a layman shall be an instructor or officer or visitor in the college, what legal objection could have been made to such a restriction ? . And yet the actual prohibition is in- effect the same in substance. But it is asked; why. aré ecclesiastics excluded, if it is. not because they are the stated and appropriate preachers of Christianity ? The answer may be given in the very words of the testator. “ In making this restriction,’^ says he, «I do not mean to cast any reflection upon any sect or person whatsoever. But as there is such a multitude of sects and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement which dashing doctrines and sectarian controversy are so apt to produce.” Here, then, we have the reason given; and the question is not, whether it is satisfactory to us or not; nor whether the history of religion does or does not justify such a sweeping statement; but the question is, whether the exclusion be not such as the testator had a right, consistently with the laws of Pennsylvania, to maintain, upon his own notions of religious instruction. Suppose the testator had excluded all religious instructors but Catholics, or Quakers, or Swedenborgians; or, to put a stronger -case, he had excluded all religious instructors but Jews, would the bequest have. been void on that account ? Suppose he had excluded all lawyers, or all physicians, or all merchants from being instructors or visitors, would the prohibition have been fatal to the bequest ? The truth is, that in cases of this.sort, it is extremely difficult to draw any. just and satisfactory line of distinction in a free country as to the qualifications or disqualifications which may be insisted upon by the dbnor of a charity as to those who shall administer or partake of his bounty.
But the objection itself assumes the proposition that Christianity
Looking to the objection therefore in a mere juridical view, which is the only one in which we are at liberty to consider it, we are "satisfied that there is nothing in the devise establishing the college, or in the regulations and restrictions contained therein, which are inconsistent with the Christian religion, or are opposed to any known policy of the state of Pennsylvania.
This view of the whole matter renders it unnecessary for us to examine the other and remaining question, to whom, if the devise were void, the property would belong, whether it would fall into the residue of the estate devised to the city, or become a resulting trust for the heirs at law.
Upon the whole, it is the unanimous opinion of the court, that the decree of the Circuit Court of Pennsylvania dismissing the bill, ought to be affirmed, and it is accordingly affirmed, with costs.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the .eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, It is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court, in this cause be, ánd the same is hereby affirmed with costs.