DECISIONS

IN THE

SUPREME COURT OF THE UNITED STATES,

DECEMBER TERM, 1868.

GIRARD V. PHILADELPHIA.

1. Where a testator devises the income of property in trust primarily for one object, and if the income is greater than that object needs, the surplus to others (secondary ones), a bill in the nature of a bill quia timet, and in anticipation of an incapacity in the trusts to be executed hereafter, and when a surplus arises (there being no surplus now, nor the prospect of any), will not lie by heirs at law (supposing them otherwise entitled, which here they were decided not to be), to have this surplus appropriated to them on the ground of the secondary trusts having, subsequently to the testator's death, become incapable of execution.

2. Neither the identity of a municipal corporation, nor its right to hold property devised to it, is destroyed by a change of its name, an enlargement of its area, or an increase in the number of its corporators. And these are changes which the legislature has power to make.

3. Under the will of Stephen Girard (for the terms of which see the case infra), the whole final residuary of his estate was left to the old city of Philadelphia in trust, to apply the income;

i. For the maintenance and improvement of his college as a primary object, and after that

ii. To improve its police;

iii. To improve the city property and the general appearance of the city, and to diminish the burden of taxation:

The court having declared that so long as any portion of the income should be found necessary for improvement and maintenance of the college, the second and third objects could claim nothing, and the whole income being, in fact, necessary for the college,

Held-i. That no question arose at this time as to whether the new

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Statement of the case.

city should apply the surplus under the trusts for the secondary objects to the benefit of the new city, or to that portion of it alone embraced in the limits of the old one.

ii. That whether or not, the trusts being, as was decided in Vidal v. Girard (2 Howard, 127), in themselves valid, Girard's heirs could not inquire or contest the right of the city corporation to take the property or to execute the trust; this right belonging to the State alone as parens patriæ.

APPEAL from the Circuit Court for 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 city being "the Mayor, Aldermen, and Citizens of Philadelphia." Upon the neck of land. above described the corporate city continued to be contained until 1854; the inhabitants outside or adjoining 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 Revolution 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, was desirous to improve the neighborhood of the river Delaware, so that the eastern part

Statement of the case.

of the city might be made better to correspond with the interior-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 of his realty), that no part of it should ever be alienated, but should be let on lease, and that after repairing and improv ing 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 be necessary, in constructing and 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 over 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 admission, 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