Statement of the case. as the limits of the said square and buildings therein can accommodate." This final residuary fund was directed to be invested, 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 comfort 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, townships, were of various territorial extent, and differed in the details of their respective organizations. In the year named, the legislature of Pennsylvania passed what is known in Philadelphia as the Consolidation Act. Statement of the case. 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 inimunities 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, and 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, and 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, and 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, and 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 the controllers of the public schools," and of such of the said twenty-nine municipalities, eighteen being enumerated, as Statement of the case. 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 full effect. The act provided that the 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 the 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 twentyeight municipalities, and "by the present mayor and councilmen" of the city of Philadelphia, from the said 30th day of June, 1854, should "cease and terminate." The old city covered about two square miles; the new one, which covered 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 laid 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 asBessed value of said property. Argument for the heirs. "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, &c., &c., &c." 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 orphans, 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 residuary 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, praying 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," &c., to the complainants. The court below dismissed the bill, which action of it was the ground of the appeal. Mr. C. Ingersoll, for the heirs, admitting that the validity of the trusts of Girard's will had been settled by this court Argument for the heirs. 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, applicable 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 remaining 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 Consolidation 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 to be raised; farm land largely, a suburb sempiternal-was converted by name, but not in fact, into a city. The whole city legisla ture 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 * 2 Howard, 127. |