author: Biddle, J., Per Curiam: :

text:
    PHILADELPHIA COUNTY.
    January Term, 1883,
    No. 53.
    January 10, 1884.
    Curran’s Appeal.
    1. A devise in trust “ to create ray estate a foundation, the annual income of which shall he used to promote the higher education of females in an institution adapted for that purpose,” is a trust for a charitable purpose.
    2. It is, therefore, within the proviso of the ninth section of the act of 18th of April, 1853, and is not void because of its provision for accumulations.
    3. Should the accumulation provided for in such a devise be in excess of that authorized by previous legislation, the heirs at law of the testator do not become entitled thereto, since the tenth section of the act of April 26, 1855, (P. L., 328,) gives to the Legislature the right to direct as to the manner in which such excess shall he disposed of, whether in conformity to the will of the testator or by directing the same to be paid into the public treasury.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of James Curran, Richard A. Curran, and Samuel Curran from a decree of the Court of Common Pleas, No. 1, of the County of Philadelphia.

    Bill in equity between the above-named parties, plaintiffs, and the Philadelphia Trust, Safe Deposit and Insurance Company, named as trustee and executor in the will of William Curran, deceased, but now acting as administrator thereof; William C. Cattell, President of Lafayette College, at Easton, Pa., and Elizabeth W. Cur-ran, widow of said William Curran, M. D., defendants.
    Cross bill between William C. Cattell, President of Lafayette College, plaintiff, and James Curran, Richard A. Curran, and Samuel Curran, the Philadelphia Trust, Safe Deposit and Insurance Company, trustees and executors named in the last will of Dr. William Curran, deceased, but acting only as administrators pendente lite, and Elizabeth W. Curran, widow, defendants.
    From the bills and-answers, the following facts appear:
    William Curran, M. D., a citizen of Philadelphia, died September 19, 1880, seized of certain real estate in that city of the value of about $90,000, which was incumbered by mortgages to the amount of $44,000. His personal estate, after payment of debts, would produce about $7,000. The income from the real estate, if it should be all rented to good advantage, would be about $6,300. The annual fixed charges against the same, for taxes, interest, water-rents, &c., amount to $4,500. He disposed of his estate as follows: To his widow, all his household goods, furniture, wardrobe, library, and pew in Arch. Street Presbyterian church ; also, in lieu and satisfaction of her distributive share, an income of $2,000 per annum, payable quarterly, until all debts, liabilities, and incumbrances on his estate are paid and discharged ; from and after that period, an annual income of $5,000, payable quarterly by the trustee ; it was also provided that she should occupy No. 1314 Arch street free of rent, and that a companion should be furnished to her at the expense of his estate.
    His will and codicil then provided as follows :

      Fourth. Whereas, I have for many years been impressed with the importance and need of good and efficient female teachers for common schools and higher seminaries of learning in our country, and specially of such as have been educated in the sacred Scriptures, and as I am particularly desirous to aid and assist such females as may, from inclination and- mental capacity, be prepared as proper and competent teachers of such schools and higher seminaries of learning, now I give, devise, ahd bequeath all the rest, residue, and remainder of my estate, real and personal, unto the “Philadelphia Trust, Safe Deposit and Insurance Company,” in trust, for the uses, objects, intents; and purposes as follows: The said company, as trustee, shall take charge of the estate, devised and bequeathed as aforesaid, collect the rents and profits of the same, pay all the taxes and legal charges thereon ; and shall have full power, in order to make said estate productive of the largest annual income, to improve the said real estate, either by making alterations in or additions to the buildings now thereon, or by the erection of new buildings thereon ; and for these purposes shall have power to raise the requisite amount of money by a mortgage or mortgages on said estate, or parts thereof; and the said trustee shall have power to sell, either at public or private sale, said real estate, whenever such sale or sales shall be, in the judgment of said trustee, expedient and profitable to said' estate ; and to convey the same to the purchaser or purchasers thereof in “fee simple,” and without any liability of the purchaser or purchasers for the application of the purchase money. The said trustee shall make equal quarterly payments to my wife of an income of two thousand dollars per annum until all my debts and liabilities, and all incumbrances'on my estate, shall be paid and discharged, when and thereafter, during the term of her natural life, my said trustee shall make equal quarterly payments to her of an income of three thousand dollars per annum.

      Fifth. When the annual income of my estate, exclusive of the bequest of five thousand dollars to my wife, and also all taxes and legal charges, cost of improvement, if any, and also all expenses incident to the care and management of my estate, shall amount to the sum of fifteen thousand dollars, I give and bequeath said net income, and all the income thereafter from my estate, for the support, use, and maintenance of a normal or training school for the free or gratuitous education of female teachers for the common schools and higher seminaries of learning in the United States, to be under the control and supervision of the General Assembly of the Presbyterian Church in the United States, and I earnestly recommend said general assembly to assume said trust, with its attendant duties.

      Sixth. When the annual net income of my estate amounts to the sum aforesaid of fifteen thousand dollars, it shall be the duty of said trustee to give written notice of this provision of my will, in relation to founding a normal or training school for female teachers, to the General Assembly of the Presbyterian Church, at their annual session in the month of May in that year. The general assembly shall have power to fix the location of said school, and to change the same; the said assembly shall choose a board of directors for said school, and such board, and successors, shall be selected from different branches of the Christian church, and not less than one half of said board shall be laymen. This board shall make its own by-laws, as also rules and regulations, for the government of said seminary; it shall elect, upon their ascertained merits, the teachers, all of whom shall be females, and fix their compensation, pay the same quarterly by warrants drawn at á stated meeting on said trustee. The board shall hold stated meetings for transacting the business of said school, shall keep minutes of their proceedings, and shall render to said general assembly an annual report of the condition, the number of pupils, and the number of teachers, and the expenditures of said seminary. Only so much of the annual income of said estate shall be expended, by the board of directors as the necessities of the seminary may require. Any income beyond the necessary expenses of the school shall be accumulated by said trustee for the future enlargement of the school, until said trustee has secured a capital which will yield a net annual income of thirty thousand dollars, when this accumulation of capital by my trustee shall cease, and thereafter the whole net income of my estate shall be expended annually, under the sanction of said trustee, in support of the school. Whatever income shall remain after paying such expenses as I have authorized for salaries, library, apparatus, &c., shall be used by the board of directors in paying boarding bills for daughters of foreign missionaries who may be pupils in this school, or for daughters of ministers of the Gospel who may be pupils in this seminary ; and the board of directors thereof shall be authorized to pay the expense of boarding such daughters of missionaries or of ministers of the Gospel so long as they remain pupils therein, which payments shall be made by warrants drawn for individual pupils, which warrants my said trustee shall be authorized to pay: Provided, That said board of directors shall not exceed the limits of annual expenditure for this or any other purpose, which shall be assigned by my trustee, who shall, from year to year, inform said board what sum of money shall be used for the expenses of the seminary during the current year.

      Seventh. It is my will that the sacred Scriptures shall be a text-book in said school, and as I desire that the highest and broadest standard of scholarship shall be maintained in said school, I request there shall be introduced therein all substantial improvements in solid- instruction and polite learning, so that the graduates thereof shall be fitted as competent and efficient teachers for the common schools and seminaries of our country,
    x * x x x x x * x x

      Codicil No. 1.

    Whereas, (Since the execution of my said will, in which, inter alia, I endowed a “ normal school,” to be controlled by the “ General Assembly of the Presbyterian Church in the United States”) normal schools are greatly multiplied by public authority ■, and, whereas, the Philadelphia Female College has been chartered, which may enable me to execute a long-cherislied purpose, viz., to assist-young women to secure a liberal education, which would be beyond their means, and thus prepare them for usefulness in higher spheres, now, I, said William Curran, M. D., do hereby revoke all parts of my said will which relate to founding any normal school, and to any board of directors of such normal school, to be appointed by said general assembly, and I revoke also the requirement that my said trustee, the É ‘ Philadelphia Trust, Safe Deposit and Insurance Company,” shall give any notice to said general assembly of the Presbyterian church, or to the “ Board of Elders of the Northern Diocese of the United Brethren,” or to the “ Philadelphia Bible Society,” as I herein provide another use for my estate.
    And I hereby declare it to be my will to create my estate a foundation, the annual income of which shall be used to promote the higher education of females, in an institution adapted to that purpose, which shall be located in the city of Philadelphia or adjacent to it.
    Should this projected female college not go into operation until after my decease, I nominate and appoint Rev. Tryon Edwards, D. D., Rev. George W. Musgrave, D. D., Charles P. Turner, M. D., Alexander Whildon, and Thomas Potter, Esqs., now of the board of directors of said “ Philadelphia Female College,” to execute my will so far as relates to the expenditure of the income which I have devoted to the education of young women. These five directors shall fill vacancies in their number, but only from the board of directors of said college, to promote harmony of action. They shall keep minutes of their proceedings, and report annually to my said trustee of the use which they make of the fund appropriated for female education.
    It is my will that my said trustee should, in the exercise of a sound discretion, complete such alterations and improvements of my estates as I have projected, and pay off all incumbrances against my property, and accumulate additional capital until it shall yield annually thirty thousand dollars, when the accumulation shall cease.
    Should the capital of this foundation be impaired, it shall be the duty of my said trustee to diminish the annual appropriation for female education, so as to restore gradually the capital to the sum of five hundred thousand •dollars. (In this provision of my will, about the amount of capital to be accumulated for an object which is purely charitable, I do not desire my said trustee to contravene the law of the State, but to act in strict conformity thereto.) The five directors whom I have named, and their successors, shall have control exclusively of the income pf the foundation, which my said trustee shall annually appropriate to the purpose of my will. My said trustee shall retain charge of the fund thus appropriated, and pay warrants drawn by said five directors, in accordanee with, my will. To these five directors I give power to select beneficiaries of this foundation, which should be done upon their ascertained merits, first, from daughters of foreign missionaries ; second, from daughters of the ministers of the Gospel at home ; third, from daughters of the learned professors, and, fourth, from those who may give evidence of talents which may adorn society and bless the world.
    But should no college for the education of females, in such manner as will satisfy the requirements of my will be available, in or adjacent to Philadelphia, when my said trustee shall be prepared to appropriate from the income of my estate in accordance with my will, then I authorize my said trustee to select from the sessions of the Presbyterian churches in Philadelphia five directors, who shall exercise all the powers, and be subject to the restrictions which I have imposed in my will.
    These five directors shall proceed, without unnecessary delay, to confer the benefits which my will contemplates on tiie appropriate objects. I desire that my long-cherished purpose to bless the church and the world should not fail to be accomplished.
    It is my will that these five directors shall elect a competent female, who shall be professor of the Latin, Greek, and Hebrew languages and literature. I would use the Bible as a sun, around which the education of the beneficiaries of this foundation shall revolve. I esteem female piety as a necessity to the highest progress of society. It is my desire that these graduates should be qualified as teachers, and that every one of them should be able to read the sacred Scriptures in the original languages. In matters non-essential to my great purpose, I permit a wide and sound discretion. I would combine the highest culture which our beautiful city can afford with consecration to the cause of Christ, so that the beneficiaries of this foundation may be as “ corner-stones, polished after the similitude of a palace,” “sanctified and meet for the Master’s use.” It is my will that the entire income of the foundation, as appropriated by my trustee, shall be expended exclusively upon females, either as professors in the institution or beneficiaries of the foundation. Said five directors shall have power to expend, of the funds placed at their disposal annually by my trustee, for premiums to stimulate and develop talent. I authorize the five directors aforesaid to provide such books and literature as will foster a missionary spirit, and such as will illustrate the Bible, its antiquities, its connection with the progress of society, &c. * * - * *

    T now repeat that it is my will to devote all my means, after the decease of my dear wife, to the gratuitous education of young women in my beloved Philadelphia, and I therefore revoke and annul all previous wills, and parts of wills, which contemplate the founding of any normal school, or any other use of my estate than that which I have prescribed herein, under the five directors whom I have named, 'and their perpetual successors. I commit the entire control of my estate, both real and personal, to my trustees hereinbefore named, to the Philadelphia Trust, Safe Deposit and Insurance Company, with power to alter, improve, and sell at public sale, in the exercise of sound discretion, with a view to the early accumulation of the capital sum of, five hundred thousand dollars, as a foundation for this educational enterprise, or an income from real estate of thirty thousand dollars per annum.

      Codicil No. %.

    It is my will that, should this projected female college not go into successful operation before my decease, or within five years thereafter, that my trustee shall invest the income of my estate discreetly, and accumulate a capital yielding an annual income of thirty thousand dollars before any appropriation be made for the college.
    Should a demand for offices arise after the completion of the “Public Buildings,” my trustee, the Philadelphia 'Safe Deposit and Trust Company, shall,, at their discretion, enlarge No. 1314 Arch street by extending it to Cuthbert street, with a hall or passage in the center, according to the plans in the hands of my dear wife, in order that the increase of rents from said offices may hasten the accumulation of the aforesaid capital of five hundred thousand dollars ; from the income of this fund my trustee shall pay the salary of the “ Wiltberger Professorship of Ancient Languages,” and the remainder of the income shall be used in paying the college term bill of students, from classes hereinbefore named, who shall have estab: lished their right to the benefits of my will by a competitive examination, conducted by the board of directors of said college ; the scholarships shall be in accord with the income of said foundation, as reported by my trustee to the directors of said college. I will append a list, from which said scholarship shall be named in order as they stand upon the list. Should any relation by blood of my dear wife within the second generation apply for the benefits of said college for females, I recommend them to the favorable consideration of the directors of said college. I hereby revoke and annul every part of my aforesaid will which is inconsistent with this last codicil, and I hereby confirm all such parts of nay aforesaid will as are not inconsistent or in conflict with it.
    All payments made by my trustee for this college for fe'male education shall be drawn by warrants, authorized by the directors of said college, at a regular meeting of the board, and shall state definitely the object of the expenditure, that it maybe clearly seen to be authorized by my will.

      Codicil No. 3.

    I make this codicil, No. 3, to record my full satisfaction with my will, and'its chief objects, in the providing of a college for the education of females. I approve, also, of my trustee and the powers I have conferred upon him.
    I am now satisfied that the efforts so perseveringly made by Dr. Tryon Edwards, to secure an endowment for the Philadelphia Female College, is a failure; I, therefore, cancel that part of my will which selects five directors of the college to supervise the expenditure of the income of this foundation, and devolve that duty upon the board of directors of the new organization which must be created. It was with an apprehension of this failure that I required an accumulation of a capital yielding not less than $30,000 per annum income, that another failure may be impossible. As in the early years of my religious life, I deeply pondered the question of my duty to go as a missionary, I desire that what I do for this college shall remain as a monument of my ardent love for the cause of missions. I desire that the influence of this college should be to train up females who shall provide for themselves, and bless the church of Christ.
    When, as soon as the aforesaid annual income of $30,000 is completed, I desire my trustee to accumulate a further sum of $5,000, the annual interest of which shall be paid to Dr. William C. Cattell, President of Lafayette College, at Easton, Pa., or his successors in office, the income of which sum shall be paid to competent and distinguished lecturers, to deliver not less than six lectures annually before the students of said college, on the principles of the Reformation, &c., &c. I hope these lectures may be esteemed worthy of publication. When the annual income of my estate reaches the sum of $30,000, my trustee shall select twelve persons from the eldership of, the Presbyterian churches in the Synod of Philadelphia, in. connection with the general assembly, who shall apply for such legislation as will give the college legal existence.
    I respectfully request the Synod of Philadelphia to have an oversight of the progress of this endowment. From my personal experience of their value, I enjoin upon the board of directors of said college to require every pupil, supported by this foundation, to pass an examination in the Hebrew, Greek, and Latin version of the sacred Scriptures, and also be able to repeat the Shorter Catechism.”
    The Philadelphia Trust, Safe Deposit, and Insurance Company, though acting as administrator of Dr. Curran’s estate, had declined to assume the trust to which he had appointed it pending a controversy as to the validity of the latest of thé codicils to his will, in which he had placed some restrictions upon the discretion and power of his trustee.
    The testator left surviving a widow, Elizabeth W., but no issue, and three’brothers, the plaintiffs in the bill.
    The bill alleged that the accumulation, directed by the testator, could not be accomplished within a century, was uncertain in time, and for a vague and ill-defined object; that the interest to be paid to Dr. W. C. Cattell, or his successor, was dependent on an event which might never occur, and prayed that so much of the will and codicils as devised and bequeathed property, real and personal, to the trustee in trust for the accumulating of a capital sum of $500,000 as a foundation, and an annual income of at least $30,000 for the educational purposes as therein set forth, and also so much thereof as bequeathed the annual interest of $5,000 to Dr. William C. Cattell and his. successor in office be decreed unlawful and void.
    The bill, cross-bill, and answers united in a prayer for the appointment of a receiver for the estate.
    The Court dismissed the bill and granted the prayer for the appointment of a receiver.
   Biddle, J.,

delivered the following opinion

“ There can be no doubt that the trust for accumulation established by this will exceeds the limits allowed by law in ordinary cases. It is, however, a trust for a chari ty of the most meritorious character, the foundation of a school for the training of female teachers. In Mann v. Mullen, 3 Norris, 302, Chief Justice Sharswood says: ‘While the statute of 43d Elizabeth is not in force, the principles which the English chancery has adopted on the subject obtain here, not by virtue of the statute, but as a part of pur common law. Hence, trusts for charities, with us, have always been upheld and enforced, no matter how uncertain were the objects; and though the effect evidently was to create a perpetuity, these have never been allowed as objections to their validity.’ To the same effect is Yard’s Appeal, 14 P. F. S., 99, and Mr. Justice Gray in Odell v. Odell, 10 Allen, 1, well says: ‘The justice or policy of a rule is not apparent which would prevent a person charitably disposed, but whose means are not large enough to carry out his purpose, from providing for an accumulation beyond the limit in other cases.’ We do not understand Hillyard v. Miller, 10 Barr, 337, to establish a different doctrine, but on the contrary, one quite consistent with it. There the attempt was to establish a formidable perpetuity by ‘tacking an insignificant charity’ to it. The Court say there was neither certainty or probability that- the hospital would be erected, and to sustain the trust, it was necessary to be absolutely certain ; if a time should arrive when the trustees could do no better with the surplus interest, they were to build a hospital with it, but not till then; thus a trust for indisputable accumulation would remain to go forever, founded on what is substantially a loan office in the garb of charity, and essentially no more so than a bank is a charity.

To none of these objections is the present trust liable. Our act of Assembly of 18th April, 1853, is in entire accordance with our common law, while by the ninth section, accumulations of incomes are declared void in so far as they exceed the limit of the act; it is expressly provided that a ‘donation, bequest, or devise for any literary, scientific, charitable, or religious purpose shall not come within the prohibition-of this section.’ But suppose this will is liable to all the objections urged against it, how can it profit the heir at law since the act of 1855? We surely cannot declare the trusts void, and hand the estate over to him, when, by the tenth section of that act, it is enacted ‘that no disposition of property hereafter made for any religious, charitable, literary, or scientific use, shall fail for want-of a trustee, or by reason of the objects being indefinite, uncertain, or ceasing, or depending upon the discretion of a last trustee, or being given in perpetuity or in excess of the annual value hereinbefore limited, but it shall be the duty of any orphans’ court, or court having equity' jurisdiction in the proper county, to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity.’

S. Griffith & Sons and S. F. Thompson for appellants.

A distinction is to be drawn between bequests given to a present existing charity or one to be immediately established, and a bequest to a charitable object or purpose which is not to vest or be called into existence, or become operative until after the expiration of the time prescribed by the rule against perpetuities : City of Philadelphia v. Heirs of Stephen Girard, 9 Wr., 9 ; Mann v. Mullin, 3 Norris, 297 ; Manners v. Library Co., 12 N., 165 ; Ould v. Hospital, 29 American Rep., 605-; Hillyard v. Miller, 10 B^rr 336

The act of April 26, 1855, (P. L., 328,) repeals by implication the proviso to the ninth section of the act of April 18, 1853, (P. L., 507.)

Rowland Evans and R. L. Ashhurst for appellee.

The will of Dr. Curran makes á present and immediate gift of the estate to trustees, and the beneficial objects of the gift are clearly and expressly declared to be the education of female teachers. The provisions as to accumillation of income, which are the subject of so much criticism by the appellants, are not conditions precedent to the gift — for the property is immediately vested in the trustees — nor do they qualify in any way the beneficial object or the purpose for which the gift is made; they merely prescribe the manner in which the bounty is to be applied. The gift is present and unconditional, the purpose that the entire estate shall be devoted to an educational charity is unqualified, but the trustees are required to accumulate a capital of $500,000 before making disbursements. Charitable trusts are not obnoxious to the common law rule against perpetuities, and a gift may be made to a charity not in esse or not to be in esse for an indefinite time: Perry v. Trusts, § 736 ; Attorney General v. Downing, Ambler, 550 ; Attorney General v. Bishop of Chester, 1 Bro C. C., *444; Society?). Attorney General, 3 Russ, 142 ; Sinnett v. Herbert, L. R., 7 Ch. App., 233 ; Chamberlayne v. Brockett, L. R., 8Ch. App., 207 ; Inglish v. Trustees, 3 Peters, 105; Ould v. Hospital, (supra;) Yard’s App., 14 P. P. S., 99.

This clearly, in our opinion, preserves the gift, and enables the Court so to administer it as to avoid any transgression of the law.”

The plaintiffs thereupon took this appeal, assigning for error the entry of the decree dismissing their bill with costs.

In view of the act of April 26, 1855, it is difficult to see what possible standing the appellants, claiming under the intestate laws of the Commonwealth, have in court to dispute the will. If, as they contend, the provisions of the will are unlawful, the Court can administer the trust under the act; otherwise, relief must be given by the Legislature, or else the property will escheat to the State.. In any event, nothing can come to the appellants : Manners v. Library Co., 12 N., 175.

January 21st, 1884.

Per Curiam: :

We have no doubt that the devise in question created a trust for a charitable purpose. This brings the case within the proviso to the ninth section of the act of 18th April, 1853, and prevents the devise from being held void, by reason of its provision for accumulations. If, however, the accumulation be in excess of that authorized by previous legislation, the tenth section of the act of 26th April, 1855, P. L., 328, gives to the' Legislature .the right to direct as to the manner in which such excess shall be disposed of, whether in conformity to the will of the testator, or by directing the same to be paid into the public treasury, It gives the appellants no right to the fund in question. The opinion of the learned judge contains a clear and correct statement of the law of this case.

Decree affirmed and appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Gordon, J.:

license: Public Domain

text:
    January Term, 1883.
    January 15, 1884.
    Dando v. Foulds.
    An agreement set forth that the lessor agrees to lease to the lessee certain real estate for the term of a year, at the rental of a $1,000, payable in monthly portions in advance, and also agrees to lease the machinery on the premises for the same term, at the rent of f>20 per week in advance. The lessor agrees to sell and deliver to the lessee such title as he possesses to the machinery at the expiration of the term for a cash-sum. The lessee agrees that he will, at the expiration of the term, purchase the machinery, and pay in cash therefor the said sum, and further, that he will, upon thirty days’ notice, purchase said machinery, and pay, at the expiration of the thirty days, the said cash sum. If either, at the expiration of the said lease, or prior thereto, upon the giving of such thirty days’ notice, the lessee fails to comply with the agreement, the lessor may, at public or private sale, dispose of the said fixtures, and should there be any deficiency, the lessee should re-imburse the lessor for such difference and costs. Held, that the agreement constituted a bailment, and not a conditional sale, and that the lessee was a bailee with an option to purchase.
    Before Mercur, C. J.; Gordon, Paxson, Trtjnkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia County.

    Sheriff’s interpleader between Henry Foulds, claimant, as plaintiff, and Thomas S. Bando, an execution creditor of C. Dorwin Freeman, as defendant, to determine the ownership of machinery and goods alleged to have been leased by Foulds to Freeman.
    The facts, as they appeared at the trial of the feigned issue, January 11, 1883, before Ludlow, P. J., were as follows:
    On September 7, 1882, Thomas S. Dando obtained judgment against C. Dorwin Freeman for $129 33. On the same day he levied on the machinery in Freeman’s printing establishment, at 306 and 308 Chestnut street. The property levied on was claimed by Henry Foulds, and an issue was framed. Foulds put in evidence the following agreement:
    “The said Henry Foulds hereby agrees to lease unto the said Dorwin Freeman the premises, third story of building 306 and 308 Chestnut street, for the term of one year, from the first day of January next, at the rental of $1,000, payable in monthly portions in advance, and also agrees to lease unto the said Dorwin Freeman the machinery now on said premises, being the same this day purchased from Emma Chandler, for the said term of one year from the date hereinbefore mentioned, at the rental of $20 per week, payable in advance.
    Further, the said Henry Foulds hereby covenants and agrees to sell and deliver unto the said Dorwin Freeman such title as he may now possess to said machinery, stock, and fixtures now upon said premises, at the expiration of said term, for the price or sum of $3,700 in cash.
    In consideration whereof, the said Dorwin Freeman hereby covenants, promises, and agrees to, and with said Henry Foulds, that he, said Freeman, will, at the expiration of the said lease, purchase said machinery, stock, and fixtures from said Henry Foulds, and that he will pay him. in cash therefor the sum of $3,700, the said Dorwin Freeman hereby agreeing to take the same title thereto as now held by said Henry Foulds.

      The said Dorwin Freeman hereby further covenants and agrees that he will, upon thirty days’ notice received from said Foulds, purchase said machinery, stock, and fixtures, and pay, at the expiration of said thirty days’ notice, to the said Henry Foulds, the said sum of $3,700.
    And it is hereby agreed further, that if either, at the expiration of said lease or prior thereto, upon the giving by said Foulds of such thirty days’ notice, he, said Freeman, fails to comply with said agreement, that said Foulds may, either at public or private sale, dispose of said stock and fixtures for the best price to be obtained therefor, and that should there be any deficiency between the sum realized and the said amount of $3,700, that he, said Dorwin Freeman, should re-imburse and indemnify said Henry Foulds for such difference, together with all costs entailed by such proceedings.”
    The agreement then provided for security to be given by Freeman.
    There was executed contemporaneously with this agreement a lease in the regular form, of the same stock, machinery, and fixtures for the same term and at the same rental, but containing no agreement to purchase.
    The testimony showed that in November, 1881, Foulds purchased the machinery mentioned in the lease from the Chandler estate, and had leased the premises in which the machinery was placed from the Girard estate, for $1,000 a year.
    The Court charged the jury as follows:
    “Gentlemen of the jury, I am satisfied that the agreement between Foulds and Freeman in reference to this machinery constitutes a bailment, and not a conditional sale.”
    January 11, 1883, verdict for plaintiff, on which judgment was subsequently entered.
    The defendant, in the feigned issue, thereupon took this writ, assigning for error the charge of the Court as above.

      E. F. Hoffman for plaintiff in error.
    The agreement was a sale from Foulds to Freeman, giving one year’s credit, charging a most exorbitant interest, and securing the vendor by attempting to create a sort of chattel mortgage of the machinery: Benjamin v. Sales, 8 Am. Ed., 5; Brunswick v. Hoover, 95 Pa. St., 508; Heryford v. Davis, 12 Otto, 235; Krause v. Commonwealth, 93 Pa. St., 418.

      Frank S. Christian for defendant in error.
    The contract was a lease: Mvers v. Harvey, 2 P. & W., 478.
    The fact that a lease does not provide for a return of goods is immaterial: Endow«. Klein, 29 Smith, 490; Clark v. Jack, 7 Watts, 375;>Fitler v. Maitland, 5 W. & S., 309 ; Chamberlain v. Smith, 8 Wright, 431; Lehigh Coal Company v. Field, 8 W. & S., 232; Henry v. Patterson, 7 Smith, 347; Becker v. Smith, 9 Smith, 469. ■
    February 4, 1884,
   the opinion of the Court was delivered by

Gordon, J.:

The single assignment of error in this case is to that part of the charge of the Court below in which the jury were instructed that the agreement between Foulds and Freeman, in reference to the machinery, stock, and fixtures, constituted a bailment, and not a conditional sale. We have, then, to consider the character and effect of the contract of the parties above mentioned, executed on the 18th o[ November, 1881. Was this contract in effect such a conditional sale of the property therein mentioned as vested a present title thereto in Dorwin Freeman % If it did so operate, it was fraudulent as to creditors, however good it might be between the parties themselves. It is to be observed that to bring the case within the statute of Elizabeth, the contract must vest presently a title of some kind in the buyer, and the mere right to acquire the title at some future time, or upon the happening of some future contingency, will not have that effect: Rose v. Story, 1 Barr, 190. In other words, the title to the goods must pass to the vendee at the time he receives the possession, otherwise there is no sale, but only a bailment. We must, then, look to see how, under the contracts before us, Freeman received the. goods in controversy, and this depends largely upon the character of his original possession, for if his title was not that of a vendee when he went into possession, it is very certain that he has acquired no such title since that time, for it is not pretended that he complied with the conditions necessary to vest him with such title. But we have here, in the fore-front of the agreement, a lease, first, of the building at an annual rental of one-thousand dollars, and, second, of the personalty in controversy at a rent of twenty dollars a week, and we also have separately a contemporaneous lease of what appears to be the same machinery, stock, and fixtures, for the same term and for the same rent per week, and in this instrument there is no condition for purchase, but it' is, in all respects, a regular lease. Again, Foulds covenanted, in the agreement first above mentioned, to sell to Freeman this machinery, stock, and fixtures, at the expiration of the lease, for the sum of $3,700, and, on the other hand, Freeman agreed that at that time he would, at the price mentioned, buy the said property, and further, that he would purchase and pay for the same at any time, on thirty days’ notice from Foulds. But in all this we discover no intention to vest title in Freeman at the time of the execution of the agreement. His possession is to be only that of a tenant or bailee, and, except at the will of the lessor, he has no right to purchase until the expiration of the lease. But it is urged that, by the terms of the contract, Foulds could only compel Freeman to buy after thirty days’ notice, but that in default of his so doing, he might sell the goods, as it were, on Freeman’s account, and charge him with any deficiency in the price. This, however, only amounts to an option in Foulds to determine the lease as to the personalty on a thirty days’ notice, and to treat the property as though, owned by Freeman. But this option on the part of the lessor, except merely in the matter of time, does not alter the nature of the contract, and the balance is but a method of compelling performance, and the determination of the measure of damages in case of non-performance. Strike this all out, and nothing has been materially altered except to deprive the lessor of his option to call upon the lessee to perform his covenant before the expiration of the lease. But it still remains that he is bound to purchase at the end of the term, and if he does not do so, he must answer for his breach of the contract in damages. But what difference in principle can it make that the lease might be determined in thirty, days rather than in one year ? It was still a lease, and if Freeman got the possession of the goods under it, he held, not as^owner, but as a lessee or hirer. Thus, in the absence of all oral evidence to prove an intent to hinder, delay, or defraud creditors, held, as we are, to the letter of the papers before us, we cannot presume that the parties intended anything other than that which is expressed in their contract; that is, that Freeman held the goods in controversy only as bailee, with an option to purchase, which he never exercised.

The judgment is affirmed.


author: Per Curiam:

text:
    June Term, 1878,
    No. 60.
    February 20, 1880.
    Girard’s Appeal.

    1. The heirs of Stephen Girard are now concluded by the decree of the United States Court in the ease of Vidal v. Girard’s liixeeutors, 2 Howard, S. O. 127, in which the validity of the trusts of the will were established.
    2. It matters not that grounds are now taken and arguments brought forward which were not presented and passed upon in that case.
    3. If meant to be relied upon, they should have been then presented.

      4. If the trusts are invalid now they were invalid then, and nothing which has occurred since can affect the question.
    5. Whether the trustees rightly construe the provisions of the will or are rightly administering them, are questions which do not affect their validity.
    6. If it be true that the city has relinquished the trust to the board of city trusts, it does not avail the heirs-at-law of the testator.
    7. The directors of the city trusts are a department of the municipality, whicli the Legislature has a constitutional right to establish.
    8. A man who constitutes such a municipality his trustee does so subject to all the changes which the sovereign power may make in its character and organization.
    Before Sharswood, O. J.; Mercur, Gordon, Paxson, Trunkey, and Sterrett, JJ.
    Appeal of John F. Girard and others from a decree of the Court of Common Pleas, No. 3, of Philadelphia County, entering judgment against them on demurrer to a bill in equity, in which John F. Girard, Margaret P. Lardy, Fabricius Devars Dumaine, Palmyre Devars Dumaine, Marie Celeste Girard De Roux, Marie M. ITenriette Girard, Ellen E. Girard, in her own right, and as widow and devisee, Jean Auguste Girard, deceased, Alfred DeLentilhac and Anne Stephanie DeLentilhac, his wife in right of his said wife, Elizabeth Hemphill, Emanuel Ray, and Virginia, his wife, in right of his said wife, Caroline G. Hunsworth, and Henriette G. Clark were plaintiffs, and The City of Philadelphia, and Henry M. Phillips, George L. Harrison, Alexander Biddle, James Campbell, J. L. Claghorn, Charles H. T. Collis, Gustavus S. Benson, William B. Mann, J. H. Michener, George PI. Stuart, Louis Wagner, William H. Drayton, William S. Stokley, Joseph L. Caven, and George A. Smith, constituting the Board of Directors of City Trusts, were defendants.
    The bill set forth that Stephen Girard, late of Philadelphia, died December 26, 1831.
    II. That plaintiffs are all his next of kin and present ,heirs-at-law, of whom seven are citizens of the Republic of France, and seven are citizens of the State of Pennsylvania and residents of the city of Philadelphia.
    III. That Stephen Girard, in and by his last will and testament, and the codicils thereto, after sundry private bequests in the first nineteen clauses thereof, did, in and by the twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth clauses thereof, and the codicils thereto, give, devise, and bequeath all the residue and remainder of his real and personal estate of every sort and kind whatsoever, unto the mayor, aldermen, and citizens of Philadelphia, their successors and assigns, in trust for the maintenance of such a number of orphans as can be maintained in one institution, and for the welfare of the city of Philadelphia as the joint objects of said trust; and in and by his said will and the codicils thereto he gave s¡)ecific instructions as to the number and extent of said buildings and the number of orphans that should be maintained therein, and did therein limit the number and extent of said buildings to one college building of the specific dimensions therein given, and to such a number of other buildings as should be necessary for the support and maintenance of such a number of orphans as can be instructed in one college building of the specified extent. And he did further direct that the sum of $2,000,000, part of the residue of his personal estate, should be applied to the erection of the said college building and the necessary buildings and outfit therefor, and that the income from the remainder of said $2,000,000 should be expended in maintaining and instructing such a number of orphans as the said buildings should be adequate to.
    IV. And in and by his said will he did direct as to his real estate, that so far as regards that part of it situated in the State of Pennsylvania, that no part thereof shall ever be sold or alienated by the mayor, aldermen, and citizens of Philadelphia, or their successors, but that the same shall forever thereafter be let from time to time upon leases in possession not exceeding five years, and that as to that portion thereof situate outside of the city and liberties of Philadelphia, that the rents, issues, and profits thereof shall be applied towards keeping that part of the real estate in the city and liberties of Philadelphia constantly in good repair (parts elsewhere situate to be kept in repair by the tenants thereof respectively) and towards improving the same whenever necessary, by erecting new buildings, and that the net residue (after paying certain annuities therein provided for) should be applied to the same uses and purposes declared of, and concerning the residue of his personal estate, and as to the said residue of his personal estate, after a specific devise of $500,000, part of the residue of his personal estate in trust for the purpose of improving the Delaware river front, and a specific devise of the sum of $300,000, part of the said residue of his personal estate, to be paid to the Commonwealth of Pennsylvania on certain condition, he did direct that the remainder of the residue of his personal estate should be invested in good securities, and in like manner the interest and income should be invested so that the whole should form a “permanent fund,” and the income of said fund should be applied yearly, and every year, as follows:

      First. To the further improvement and maintenance of said college in the manner specified in his will.

      Second' To enable the city of Philadelphia, more effectually than they now do, to provide for the security of the persons and property of the inhabitants by a competent police.

      Third. To enable the said city of Philadelphia to improve the city itself, and in effect to diminish the burden of taxation, to all which objects he did devote the fund, “after providing for the college,” as his “primary object ; ” and he did further direct that in case the said, city of Philadelphia should knowingly violate any of the provisions of his said will, that the said residue of his personal estate, shall be forfeited to the Commonwealth of Pennsylvania for the purposes of internal navigation ; and in case of said Commonwealth failing to apply the same to this purpose, he gives, devises, and bequeaths the same to the United States of America, for the purposes of internal navigation, and to no other; and your orators aver that the devise above stated to the said municipal uses of improving the police and property of the city and its general appearance, and to diminish the burdens of taxation, either in the now-existing consolidated city, or in that part thereof which was late the city, are absolutely void as against the policy of the law of this Commonwealth, as well as for the indefiniteness and uncertainty and impossibility of application; and there is not now, 'nor has there ever been, any lawful or valid use for the income of said “permanent fund” other than for the purposes of the said college.
    Y. And as to his real estate in the city and liberties of Philadelphia, he did give, devise, and bequeath the same unto the mayor, aldermen, and citizens of Philadelphia and their successors in trust, that no part thereof should ever be sold or alienated, and that the rents, issues, and profits thereof should be expressly set apart, and forever reserved as a “final residuary fund,” for the maintenance of said college, upon two contingencies only, viz: In case of the forfeiture of said “permanent fund” to the Commonwealth of Pennsylvania, as above set forth in paragraph four, or, in the event of the income from the said “permanent fund” being insufficient for the support and maintenance of the said college, and to no other limitation, use, or purpose whatever.
    YI. That the name of said corporation, the “mayor, aldermen, and citizens of Philadelphia,” has since been duly changed to “the city of Philadelphia,” one of the' defendants above-named'; and the said defendant, the “city of Philadelphia,” is now, and for a long timé past has been, in possession of. the real and personal.estate so devised as aforesaid, under the residuary clauses of the said will of the said testator, and has been, and still is, in the receipt and enjoyment of the income and profits thereof, nominally, as trustees under the will of said testator, of all the rest, residue, and remainder of his estate, and as such, from the decease of the said testator until the present time, the said trustees have had the care and charge of the said residuary estate, both real and personal.
    • YII. That by an act of. the General Assembly of the Commonwealth of Pennsylvania, it was enacted that from and after the 1st day of July, 1869, next, all duties, rights, and powers of the “city of Philadelphia,” concerning all property and estates dedicated to charitable uses or trusts, the charge or administration of which are confided to the “city of Philadelphia,” shall be discharged by the said city through the instrumentality of a board composed of fifteen persons, including the mayor of said city, the presidents of the select and common councils for the time being, and twelve other citizens, appointed as therein provided, to be called the “directors of city trusts.”
    YIII.And under and by virtue of the provisions of said act, William Welsh et al. took upon themselves the rights and duties of directors of city trusts, and had and still have and exercise, as hereinafter stated, full control over the said trust estate of said testator. George L. Harrison et al. defendants, constitute the present board of directors of city trusts.
    IX. Your orators aver that the said college and necessary buildings have long been built,, and furnished to the full extent designed and designated in the said will of the said testator, and that after deducting the $2,000,000 expressly set apart for said college, and the said sums of $500,000 and $300,000 expressly devised for the aforesaid purposes, (of the improvement of the Delaware front, and for the Commonwealth of Pennsylvania,) from the said residue of the personal estate of said testator, that the remainder of the said residue of the personal estate, and the net residue of the rents and profits of the real estate in the State of. Pennsylvania, outside of the said city and liberties of Philadelphia, (now the city of Philadelphia,) the income from which two sources form the said “permanent fund,” devoted by the said testator to the support of said college, as his “primary object,” is and always has been more than sufficient for the support and maintenance of said college, and the maintenance and education of the orphans therein to the full extent designated by the said testator, under the terms of his will and codicils thereto ; that there is no other lawful purpose or use, under the terms of said will of testator, for the said income of said “permanent fund” than the support and maintenance of said college and orphans as aforesaid; and that the surplus income of said “permanent fund,” over and above the amount actually expended for the support and maintenance of said college, and which has accrued yearly, and every year since the opening of said college, in the year 1848, has largely increased the said “permanent fund,” and the same will continue to'increase from year to year hereafter, if the income is applied only to the lawful purposes of said will.
    X. Your orators further are advised and aver that the devise of the. real estate of the said testator in the city and liberties (now the city) of Philadelphia, and of the rents, issues, and profits thereof, under the said clauses of said will, as set forth in paragraph fifth, is unlawful and void as a devise in perpetuity, and has never vested in the said city of Philadelphia for the uses and trusts declared of and concerning the same, and although it has been, since 1848, impossible that the contingency of the said permanent fund being forfeited could ever occur, the same has been and is, since that time, wrongfully held and possessed by tlie said defendants. And your orators are entitled to have and possess the said real estate as the next of kin and heirs at-law of said Stephen Girard, deceased, together with the rents, issues and profits thereof.
    XII. Your orators further aver that no part or portion of the said net income from the said real estate in the said city of Philadelphia, so devised and designated by the said testator as the “final residuary fund,” as aforesaid, has ever been required for, nor lawfully nor rightfully used or applied to the support or maintenance of said college : but the same has been wrongfully and willfully blended and mixed with the surplus income from tlie said “permanent fund” from time to time, and invested in securities and improvements of the said real estate in' the city of Philadelphia, contrary to and in violation of the express directions of the said will of said testator ; and the particular securities and the properties so improved are known only to the said defendants, the city of Philadelphia, and the said directors of city trusts, who have, as your orators aver and charge, published yearly statements of the receipts and expenditures of the said estate of said testator in apparent fulfillment of the directions of said will, but contained in such form and manner as to blend and mix the income from the said “permanent fund” and said “final residuary fund,” under one general head and title of “residuary estate,” with the purpose and with the intent of concealing from your orators and others the knowledge of the sufficiency of the income from said ‘ ‘permanent fund’ ’ for the requirements of the said college, and the fact of there having been, as your orators now charge there has been, a yearly surplus of income from said “permanent fund” over the lawful requirements of the said college, and in such manner and form as to show an apparent use of the whole of the income from said “permanent fund,” and the “final residuary fund” also, for many years past for the lawful purposes of said trust; and by the said accounts and statements so published, and by the means aforesaid, and by a pretended construction of the terms of said will as including the income from said real estate in the city of Philadelphia in the said “permanent fund,” expressly named by said testator for the purposes of said college, as well as by the wrongful use of a large portion of the personal estate of said testator in buildings and real estate investments, so as thereby to reduce the apparent amount of said personal estate, and so induce the belief in your orators and the public generally, that the said income from the said “final residuary fund,” consisting of the income of said real estate in the said city of Philadelphia, was required for the lawful purposes of the said college ; your orators have, for a long time, been deceived and misled to the belief that the said “final residuary fund” had vested for purposes of said trust, and have so been purposely delayed and hindered by the said defendants, the said city of Philadelphia, and'her agents, the directors of city trusts, from proceeding to obtain their rights and titles to the possession of said real estate, and the income therefrom heretofore unlawfully held and collected by the said defendants.
    XIII. And your orators charge that by reason of the use and investment of the large portion of the residue of the personal estate, and the continued use and investment of the yearly income from the said “permanent fund ” in the improvement of the real estate in the city and liberties of Philadelphia, the same has become greatly improved in value, and the actual income therefrom thereby largely increased in amount since the death of the testator; and that as to the remainder of the said rents, issues, and profits of said real estate in the city of Philadelphia, which have been collected by the said defendants for twenty years last past, and are now in their possession, together with interest thereon from the time the same severally accrued, of right belongs to your orators, and is unjustly and unlawfully withheld from them by the said defendants.
    XIY. And your orators further aver that the said defendants, the city of Philadelphia, and her agents, the directors of the city trusts, are building other and further buildings for the accommodation of other and further orphans beyond the extent and limit authorized by the said will of said testator for the sole and express purpose of exhausting the surplus income from the said “permanent fund,” and unlawfully using and expending the said accumulated income from the said real estate in the city of Philadelphia which they have no right, nor title, nor authority to use under the terms of the will with the design of defeating and hindering your orators from recovering the same.
    XY. And your orators further charge that by reason of the said college having been built and completed to the full extent designed and designated by the said testator in and by his said last will aforesaid, and of the large amount of the principal of said'“permanent fund” from the accumulated re-investment of the yearly surplus income therefrom for a number of years past, and the practically inexhaustible income from that portion of the said real estate in several counties of this State — which consist of coal lands — it is, and has been for a number of years past, impossible to comply with the requirement of the testator, that the whole income of said ‘ ‘ permanent fund ’5 shall be applied yearly, and every yeax', because the purposes for the college are the only lawful purposes designated for such application; and that by reason of the premises your orators are advised that there is not now, and has never been for a number of years past, any lawful purpose for such an accumulation of the said surplus income of said “permanent fund” beyond the requirements of the said college yearly, and each year ; and that the said yearly surplus from said income from said “permanent fund,” directed tobe applied yearly to the said municipal purposes, has resulted to your orators as heirs-at-law of said Stephen Girard, deceased, as an exhausted residuum after the lawful purposes of the said college have been fulfilled, and thatjdxe same of right belongs to your orators as heirs-at-law of said Stephen Girard, aforesaid.
    The bill prayed:

      First. An injunction. '

      Second. An account of the personal estate.

      Third. An account of the yearly income.

      Fourth. That as to so much of said real estate in said city as shall have been built upon and improved from income, issues, and profits derived only from said residuary real estate, and so much as shall still remain unimproved, be decreed to be forthwith surrendered to the plaintiffs.

      Fifth. That as to so much of the said real estate, as shall have been built upon or improved either in whole or in part from funds properly belonging to the personal estate or the income of said “permanent fund,” the value of the ground so built upon or improved be decreed to be forthwith paid to the plaintiffs.

      Sixth. Discovery.

      Seventh. That the surplus income of the said “permanent fund” may be decreed to be forthwith paid over to yoxxr orators.

      Eighth. Further relief.
    The will of Stephen Girard made part of the bill provided inter alia:

    ‘ ‘ XXI. And so far as regards the residxxe of my personal estate, in trust, as to two millions of dollax’s, part thereof to apply axxd expend so.much of that sum as xnay be neccessary in erecting, as soon as practicably may be, * * a permanent college, with suitable out-buildings, sufficiently spacious for the residence and accommodation of at least three hundred scholars, and the requisite teachers, and other persons necessary in such an institution as I direct to be established; and in supplying the said college and out-buildings with decent and suitable furniture, as well as books and all things needful to carry into effect my general design. * * * ■ * *
    In relation to the orgafiization of the college and its appendages, I leave, necessarily, many details to the mayor, aldermen, and citizens of Philadelphia, and their successors ; and I do so, with the more confidence, as, from the nature of my bequests, and the benefit to result from them, I trust that my fellow-citizens of Philadelphia will observe and evince especial care and anxiety in selecting members for their city councils, and other agents.
    There are, however, some restrictions which 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, that if, at the close of any year, .the income of the fund devoted to the purposes of the said college shall be more than sufficient for the maintenance of the institution during that year, then the balance of 'the said income, after defraying such maintenance, shall be forthwith invested in good securities, thereafter to be and remain a part of the capital; but, in no event, shall any part of the said capital be sold, disposed of, or pledged, to meet the current expenses of the said institution, to which I devote the interest, income, and dividends thereof, exclusively. * * *

    If the income arising from that part of the said sum of two millions of dollars 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 as the limit of the said square and buildings therein can accommodate.
    XXII. And as to the further sum of $500,000, part of the residue of my personal estate, in trust, to invest the same securely, and to keep the same so invested, and to apply the income thereof exclusively to the following purposes, that is to say :

      First. To lay out, regulate, curb, light, and pave a passage or street, on the east part of the city of Philadelphia, fronting the river Delaware. * '* *

      Second. To pull down and remove all -wooden buildings, as well as those made of wood and other combustible materials, as the so -called brick-paned or frame buildings filled in with bricks, that are erected- within the limits of the city of Philadelphia, and also to prohibit the erection of any such buildings within the city’s limits at<a.ny future time.

      Third. To-regulate, widen, pave, and curb Water street, to distribute the Schuylkill water therein upon the following plan: * * * * *
    And my mind and will are, that all the income, interest, and dividends, of the said capital sum of $500,000, shall be yearly, and every year, expended upon the said objects, in the order in which I have stated them as closely as possible, and upon no other object until those enumerated shall have been.attained ; and, when those objects shall have been accomplished, I authorize and direct the said mayor, aldermen, and citizens, to apply such part of the income of the said capital sum of $500,000, as they may think proper, to the further improvement, from time to time, of the eastern or Delaware front of the city.
    XXIII. I give and bequeath to the Commonwealth of Pennsylvania the sum of $300,000, for the purpose of internal improvement by canal navigation, to be paid into the State treasury by my executors, as soon as such laws shall have been enacted by the constituted authorities of the said Commonwealth as shall be necessary and amply sufficient to carry into effect, or to enable the constituted authorities of the city of Philadelphia to carry into effect, the several improvements above specified, namely :

      First. Laws to cause Delaware avenue, as above described, to be made, paved, curbed, and lighted; to cause the buildings, fences, and other obstructions now existing, to be abated and removed ; and to prohibit the -creation of any such obstructions to the eastward of said Delaaware avenue.

      Second. Laws to cause all wooden buildings, as above described, to be removed, and to prohibit their future erection within the limits of the city of Philadelphia.

      Third. Laws providing for the gradual widening, regulating, paving, and curbing Water street, as hereinbefore described, and also for the repairing the middle alleys, and introducing the Schuylkill water and pumps, as before specified — all which objects may, I persuade myself, be accomplished on principles at once just in relation to individuals and highly beneficial to the public ; the said sum, however, not to be paid unless said laws be passed within one year after my decease.
    XXIV. And as it regards the remainder of said residue of my personal estate, in trust, to invest the same in good securities, and in like manner to invest the interest and income thereof from time to time, so that the whole shall form a permanent fund, and to apply the income of the the said fund:
    ■ First. To the further improvement and maintenance of the aforesaid college, as directed in the last paragraph of the twenty-first' clause of this will.

      Second. To enable the 'corporation of the city of Philadelphia to provide more effectually than they now do for the security of the persons and property of the inhabitants of the said city, by a competent police, including a sufficient number of watchmen, really suited to the purpose ; and to this end I recommend a division of the city into watch districts, or four parts, each under a proper head, and that at least two watchmen shall, in each round or station, patrol together.

      Third. To enable the said corporation 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, especially on those who are least able to bear it:
    To all which objects, the prosperity of the city, and the health and comforts 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. But if the said city shall knowingly and willfully violate any of the conditions hereinbefore and hereinafter mentioned, then I give and bequeath the said remainder and accumulations to the Commonwealth of Pennsylvania, for the purposes of internal navigation ; excepting, however, the rents, issues, and profits of my real estate in the city and county of Philadelphia, which shall forever bé reserved and applied to maintain the aforesaid college in the manner specified in the last paragraph of the twenty-first clause of this will. And if the Commonwealth of Pennsylvania shall fail to apply this or the preceding bequest to the purposes beforementioned, or shall apply any part thereof to any other use, or shall, for the term of one year from the time of my decease, fail or omit to pass the laws hereinbefore specified, for promoting the improvement of the city of Philadelphia, then I give, devise and bequeath the said remainder and accumulations (the rents aforesaid always excepted and reserved for the college as aforesaid) to the United States of America, for the purposes of internal navigation, and no other.
    Provided, nevertheless, and I do hereby declare that all the preceding bequests and devises of the residue of my estate to the mayor, aldermen, and citizens of Philadelphia are made upon the following express conditions, that is to gay :

      First. That hone of the moneys, principals, interest, dividends, or rents arising from the said residuary devise and bequests shall at any time be applied to any other purpose or purposes whatever.'than those herein mentioned and appointed.

      Second. That separate accounts, distinct from the other accounts of the corporation, shall be kept by the said corporation, concerning the said devise, bequest, college, and funds, and of the investment and application thereof; and that a separate account or accounts of the same shall be kept in bank, not blended with any other account, so that it-may at all times appear on examination by a committee of the Legislature as hereinafter mentioned that my intentions have been fully complied with.

      Third. That the said corporation render a detailed account annually, in duplicate, to the Legislature of the Commonwealth of Pennsylvania, at the commencement of the session, one copj" for the Senate and the other for the House of Representatives, concerning the said devised and bequeathed estate, and the investment and application of the same, and also a report in like manner of the state of the said college, and shall submit all their books, papers, and accounts touching the same to a committee or committees of the Legislature for examination when the same shall be required.

      Fourth. The said corporation shall also cause to be published in the month of January, annually, in two or more newspapers, printed in the city of Philadelphia, a concise but plain account of the state of the trusts, devises, and bequests herein declared and made, comprehending the condition of the said college, the number of scholars, and other particulars needful to be publicly-known, for the year next preceding the said month of January, annually.”
    The defendants demurred to the bill, inter alia, as follows :
    That the plaintiffs bring their bill as heirs-at-law of Stephen Girard, and yet aver that he made a will which was duly proved.
    That over forty-six years have elapsed bétween the probate of the will and filing of the bill, and that the*plaintiffs are therefore barred by lapse of time.
    That the plaintiffs’ interpretation of said will is not the true one, because there is no limit to the construction of new buildings for the maintenance and education of orphans, except the adequacy of the grounds on which the college is erected.
    The devises for municipal uses, referred to in the bill, are neither indefinite, uncertain, nor impossible of application.
    That there is a lawful use for the income of the permanent fund other than the maintenance of. said college and orphans.
    The devise of the real estate of the said testator in the city of Philadelphia, and of the rents and profits thereof, is not void as a devise in perpetuity.
    That plaintiffs have shown no right to the relief prayed for.
    The bill is, in other respects, uncertain, informal, and insufficient.
    The Court entered a pro forma decree sustaining the demurrers and dismissing the bill.
    The plaintiffs thereupon took this appeal, assigning for error the action of the court as above.

      A. S. L. Shields, P. E. Carroll, and Benjamin P. Wrigley for appellants.
    The possession of trustees under the will on devises and bequests -which were valid in part, and void or voidable in part, was a direct continuing trust as to the void or voidable part — for the heirs-at-laws — andbeing exclusively cognizable in equity, and between cestui que trusts and trustees, the Statute of Limitations does not operate as a bar.

      Barton ». Dickens, 12 Wright, 518 ; Lyon «. Marclay, 1 Watts, 271; Kane v. Bloodgood, 7 Johns, Chancery Rep., page 100 — adopted by the courts in Pennsylvania. In case of express trusts, accounts decreed extending over thirty, forty, and forty-five years : Hill on Trustees, page 408, and cases there cited.
    The will fixes a maximum for the college. This limitation is evidenced by the well-defined intention of the testator manifested by the object the testator had in view, the means he took to accomplish them, and.his directions in relation thereto throughout the whole will.
    The doctrines of res adjudícala and stare decisis do not apply to this case. Different questions were involved in the previous cases growing out of Stephen Girard’s will.

      F. F. Brewster and F. Carroll Brewster for appellees.
    The plaintiffs are barred by lapse of time: Stackhouse ®. Barnston, 10 Yes. Jr.,- 466 ; Townsend ■». Townsend, 1 Cox, 28; Ex parte Hasell, 3 Younge & Collyer, 617; Shewen v. Vanderhorst, 1 Russ & Mvlne, 347; Bull «. Towson, 4 AY. & S., 557; Bones’ Appeal, 3 Casey, 492; Chorpenning’s Appeal, 8 Casey, 315.
    This will does not expressly or by implication limit the number of pupils to be received into the college.
    The trusts for the city have already been declared valid, and the matters set forth in the bill are res adjudicate/,: Yidal«. Girard, 2 Howard, S. C., 127,1844; City». Girard, 9 Wright, 9, 1863, and Girard -». Philadelphia, 7 AYallace, 1, 1868.

       This case, argued and determined at a time prior to the period of these reports, is not elsewhere reported, and is here inserted by request, based upon its importance to the city of Philadelphia.

   Per Curiam:

This case is ruled by the City v. Girard’s Heirs, 9 Wright, 9. It is there held that the heirs of Stephen Girard are now concluded by the decree of the United States Court in the case of Vidal v. Girard’s Executors, 2 Howard, S. C., 127, in which the validity of the trusts of the will was established. It matters not that grounds are now taken and arguments brought forward which were not presented and passed upon in that case. They should have been presented if meant to be relied on. If the trusts are invalid now, they were invalid then. Nothing which has since occurred can affect this question. Whether the trustees rightly construe theprovisions of the will or are rightly administering them, are questions which do not affect their validity. As to the contention that the city has relinquished the trust to the board of city trusts, that would not avail the appellants, if it were so. It is fully met and answered by the decision of this court in Philadelphia v. Fox et al., 14 P. F. Smith, 169. The directors of city trusts are a department of the municipality which the Legislature had a constitutional right to establish. A man who constitutes such a municipality his trustees, does so subject to all the changes which the sovereign power may make in its character and organization: Girard v. Philadelphia, 7 Wallace, 1.

This renders it unnecessary to consider the question of the Statute of Limitations.

Decree affirmed and appeal dismissed at the costs of the appellants.


text:
    July Term, 1883,
    No. 114.
    January 21, 1884.
    Harris v. Wainwright.
    1. A garnishee in his answers to interrogatories averred that there was no balance in his hands in favor of defendants, that he was not at the service of the writ, nor had he been since indebted to the defendants; that he knew of no claim of defendants on him for money or property, and that there was no debt or demand in suit between them, but averred that he held a mortgage upon a property of defendants as collateral security for a debt due by defendants and guaranteed by garnishee, and should he be relieved from responsibility, defendants would be interested in its distribution. He pleaded nulla bona. The jury found a verdict for the plaintiffs for $5 53. Meld, that the garnishee was liable for costs.
    2. The fact that at the trial the garnishee presented an account showing $5 53 to be in his hands did not relieve him from the liability.
    Before Merctjr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia County.

    The facts as they appeared at the tria!, and in the records of the court below, were as follows :
    On February 14, 1879, judgment was entered against George L. Moore and Henry B. Moore in favor of plaintiffs for $2,370 52, and an attachment execution was issued and served on II. G. Harris and Catharine C. McFillin. In his answers' to the interrogatories, Harris averred that there was no balance in-his hands in favor of defendants; that he was not at the service of the writ, nor had he been since indebted to the defendants ; that he knew of no claim of defendants on him for money or property, and that there was no debt or demand in suit between him and the defendants.
    In answer to an interrogatory as to whether he had in his hands any property in which the defendants were interested, he replied as follows:
    ‘‘I had in my hands when said writ was served a mortgage of $1,500, in which said defendants were interested. The said mortgage was held by me as collateral security for a guarantee I had made of the said amount of $1,500 to a creditor of said defendants, and for any sums that might be due me by said defendants. The mortgage was upon a property of said defendants. The said debt so guaranteed is disputed by said defendants, but the creditor claims to hold me responsible on my guaranty. Should the creditor’s claim be successfully disputed by said defendants, and I relieved from liability, the defendants would be interested in the distribution of the proceeds of the mortgage to see them properly applied.”
    On April 6, 1879, the plaintiffs ruled the garnishee to plead. On May 2,1879, the garnishee pleaded nulla tona.

    At the trial May 5, 188Í, the garnishee presented a statement by which he showed that he had in his hands $5 53 belonging to the defendants. The jury found “ verdict for plaintiffs, and find in the hands of the garnishee $5 53.”
    On February 19,1882, the Court entered a decree awarding $177 40 costs to the plaintiffs.
    ■ The garnishee thereupon took this writ, assigning for error the action of the court in entering a decree awarding plaintiffs their costs.

      II. G. & A. II. Harris for plaintiffs in error.
    Where the accounts of a garnishee with a defendant are in an unsettled state, and answers will not admit of judgment being taken, the Court must direct a.n issue, and the case proceed to tidal: Bank v. Gross, 14 Wright, 229.
    In such a case the costs of trial cannot be said to be occasioned by the fault of the garnishee, and he is not held liable for them.
    A pledgee need not admit any sum due the plaintiff till he has realized his own claims: Coles v. Sellers, 1 Phila., 533-; Myers v. Baltzel, 1 Wr., 493.
    This case is ruled by Newlin v. Scott, 2 Casey, 102, in which the Court decides that even if a garnishee plead nulla tona, if, by his answers, he admits certain effects in his hands, it is equivalent to a tender of them, and costs cannot be collected.

      William H. Peace for defendants in error.
    Had the garnishee. annexed his accounts with the defendants to his answers, or tendered judgment for the amount the jury found due, he would have been relieved from the costs, but this he did not do. Therefore, as to this question of liability for costs, he must stand or fall by his answers and his plea of nulla bona: Walker®. Wallace, 2 Dallas. 113.
    February 4th, 1884.
   Per Curiam:

In answer to interrogatories served on him, the garnishee averred that he 'was not, at the service of the writ, nor had he been since indebted to the defendants in the judgment on which the attachment issued; nor did said defendanis have any claim on him for money or property whatsoever. He proceeds to state a contingency in -which they might be interested in the distribution of the product of a mortgage, on their property, which he held as collateral security. This answer not being satisfactory to the defendants in error, he put in the plea of nulla bona, and on the trial a verdict was rendered against him for $5 53 found to be in his hands, for which sum, with costs, judgment was entered against him. His complaint now is, that he is not liable for costs. It is true, on the trial, he did present a statement showing $5 53 to be in his hands. That, however, was too late’ to relieve him from costs. Having denied all indebtedness and all claims for property, both in his answers and by his plea, and the jury having found against him, he became liable for costs.

Judgment affirmed.


author: Green, J.:

text:
    July Term, 1883,
    No. 163.
    March 26, 1884.
    Hoffner v. The Logan Square Building and Loan Association.
    In a scire facias upon a mortgage given to a building association by one of its members to secure the payment of a loan, interest, and dues, the plaintiff claimed a balance due of $511. The defendant filed an affidavit of defense, setting forth that he was charged with $130 for ten month’s interest on the loan and received no credit for interest upon money paid in or upon the stock; that he is entitled to credit for $104, being eight months’ interest paid in advance of receipt of the loan and never credited; and that if these sums were credited the amount due upon the mortgage would not exceed $200. Held, that the affidavit was sufficient to carry the case to a jury, though it appeared, by statement set forth therein, that lie had been credited generally witli $2,219 for dues paid.
    Before Mercur, C. J.; Gordon, Paxsoh, Trunkey, Green, and Clark, JJ. Sterrett, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia County.

      Scire facias sur mortgage by the Logan Square Building and Loan Association, No. 2, against Edwin M. Hoffner.
    The mortgage upon which suit was brought was given by Hoflner to the building association on December 19, 1874, to secure the payment of $2,600 at any time within ten years from the date thereof, together with lawful interest thereon, payable on the first Thursday of each and every month thereafter ; and also to secure the payment by said Hoflner to said building association the sum of $18 on the first Thursday of each and every month, as a contribution on thirteen shares of capital stock of said association owned by said Hoflner; and providing that, in case of default in the payment of said principal or interest, or in default of the payment of said monthly dues for a space of six months after any payment thereof should fall due, that then the whole of the principal debt should immediately become due and .payable. And it is averred in said writ that default has been made in the payment of said interest and monthly dues for more than six months after the same became due, whereby the whole principal debt has become due.
    To this suit defendant filed the following affidavit of defense:
    “That he hath a just, true, and legal defense to plaintiff’s claim herein of the following nature and character, to wit: This is a scire facias sur mortgage issued upon the alleged default of deponent to pay dues and interest (as specified in said mortgage) for the space of six months. Deponent- says that by the by-laws of said association (Art. two,.sec. two) the stated meetings of the board of directors to receive dues and interest should be held on the first Thursday of each and every month,'and no other time is anywhere provided for, on which dues and interest shall be paid. Deponent says that no meetings of said board of directors have been held since March, 1881, whereby deponent is advised and believes that the obligation imposed upon him by said mortgage to pay said dues and interest monthly ceased and determined. Deponent further says : That said association has been for the last two years in process of liquidation or settlement. That deponent has been furnished by the secretary of the association with four different statements, at different times, of the amounts due by him upon said mortgage, the amounts thereof varying from $1,235 25 to $511. That by the last statement of January 30, 1883, said, plain tiffs claim that there is due upon said mortgage the sum of $511. A copy of said statement is hereto attached and made part of this affidavit. By said statement deponent is charged with $130 for ten months’ interest on loan, but no credit whatever is given him for interest upon money paid in or upon stock. Deponent further says that he is entitled to a further credit of one hundred and four dollars, being for eight months’ interest, at thirteen dollars per month, paid by deponent in advance of receipt of the loan, and which has never been credited to deponent. That, allowing deponent credit for this excess of interest paid by him and credit for interest upon the money paid in by him on account of said- loan, deponent will not owe, according to plaintiffs’ own statement, more than two hundred dollars. Deponent further says, however, that he does not owe plaintiffs any sum whatever upon said loan, according to the best of his information and belief. The last statement issued by said association showed an excess of assets over liabilities of over four thousand dollars. That deponent believes that a fair settlement of the affairs of said association, and allowing deponent his fair proportion of the excess of assets, will fully pay and satisfy any and all debt due by deponent upon said bond and mortgage.”
    The statement, referred to in the affidavit was as follows :
    “Edwin M. Hoffner, in account with Logan Square Building and Loan Association, No. 2 :
    To loan in thirteen shares, 2d series, •-.... $2,600 00
    To interest due to Feb’y 1, 1883,...... 130 00
    Credit,................$2,730 00
    By dues paid on 22 shares to Jan. 1, 1881,...... .......$2,024 00
    By dues paid on 13 shares from Jan. 1, 1881, to March 1, 1882....... 195 00
    - 2,219 00
    Amt. required to repay loan Feb. 1, 1883, . . . $511 00”'

      On June 2, 1883, the Court entered judgment against defendant for want of a sufficient affidavit of defense.
    The defendant thereupon took this writ assigning for error the action of the Court as above.

      Edwin O. Michener for plaintiff in error.

      John 8. Gerhard for defendant in error.
    April 28, 1884,
   the opinion of the Court was delivered by

Green, J.:

Assuming, as we must, the truth of all the matters contained in the affidavit of defense, it seems to us there was enough in this affidavit to carry the case to a jury. The defendant.swears that he was charged $130 for ten months’ interest on the loan, and received no credit for interest upon money paid in or upon the stock. He says also that he is entitled to credit for $104, being eight months’ interest paid in advance of receipt of the loan and never credited. It is true, the plaintiffs reply orally to this by saying that the $104 are credited as part of the sum of $2,024, for which credit is given, but we cannot consider anything but the allegations contained in the affidavit. The items which make up the credit of $2,024 do not appear in the plaintiff’s statement, and hence we cannot know whether that credit includes the sums .which the defendant says in his affidavit he has paid and has no credit for or not. He further says that if these sums were credited, the amount due on the mortgage would not exceed two hundred dollars. In these circumstances, we think the affidavit is sufficient to entitle him to a hearing on the question of the amount actually due. Of course we decide nothing as to the merits of the defense in regard to the payments claimed.

Judgment reversed and procedendo awarded.