CHAPTER 2

THE WILL, NO LONGER SACRED

 

           Girard's Will is a classic in American law.  Philanthropists like Williamson, Ellis, and Hershey used it as a model to create their endowments.  The Will was controversial.  It offended his family, the religious community, and later females and non-white minorities.

           Girard's first Will was written in 1787.  Horace Binney, a famous attorney, prepared the second one in 1826.  That Will was significantly revised in 1830 by William J. Duane.  The final Will is dated February 16, 1830, but after Girard bought additional property and changed the location for his school, two codicils were published, one dated December 25, 1830, the other June 20, 1831.  The last codicil was written just six months before Girard died on December 26, 1831.  The Will was probated on December 31, 1831.

           Shortly after Girard's death, The Pennsylvania Gazette published the Will's content.  People were shocked at the estate's value and how Girard left nearly all of his seven million dollars to charitable causes.  Girard designated the City of Philadelphia to administer the estate, and this act became a significant point that led to the Will's dismantling.  In this century, the court ruled that no public institution, in this case the city, could enforce restrictions that were contrary to the Constitution's 14th amendment that guarantees equal rights to all citizens.

           Girard was a benefactor to many.  Consider these facts to appreciate the significance of his generosity.  In 1826, a typical monthly wage for a mill supervisor was $48.  A skilled worker earned between $14 and $18 a month, and a laborer made about $8 a month.  The combined earnings of a father, mother, and one child working in a mill was about $350 per year and they paid about two dollars ($2.00) a month to rent a mill house.

           Girard willed the following:

• $30,000 to the Pennsylvania Hospital, and from its interest, his Black maid Hannah[1] was to be paid $200 each year for the remainder of her life.
• $20,000 to the Pennsylvania Institute for the Deaf and Dumb.
• $10,000 to the Orphan Asylum of Philadelphia.
• $10,000 to the comptrollers of the Philadelphia public schools for a school in the first section of the first school district.
• $10,000 to the City to be invested and its interest used to purchase fuel for "poor  white housekeepers and  roomkeepers, of good character, residing in the City Of Philadelphia."
• $10,000 to the Society for the relief of poor and distressed Masters of Ships and their widows.
• $20,000 to the Masons to help their "poor and respectable brethren."
• $6,000 to his Passyunk Township neighbors to construct a neighborhood school.
• His house and property near Bordeaux, France, to specific relatives.
• $5000 to brother Etienne and $5000 to each of Etienne's six children.
• $5000 to niece, Victoire Fenellon.
• $10,000 to niece Antoinette Hemphill with an additional $50,000 placed in trust for her children.
• $10,000 to niece Carolina Haslam.
• $10,000 to niece Henrietta Clark and $20,000 for her daughter's education and maintenance.
• $1500 to the Captains of his ships upon their arrival.
• $500 to persons indentured to him at the time of his death.
• $1000 to Francis Hesley, son of the farm's housekeeper.
• $1000 yearly to Mrs. Elizabeth Ingersoll, widow of attorney Jared Ingersoll.
• $400 yearly to Catherine Girard, widow of J. B. Hoskins.
• $500 yearly to his housekeeper, Mrs. Jane Taylor, widow of one of his Captains.
• $500 yearly to Mrs. S. Hesley, housekeeper of his farmhouse and $300 yearly to maintain her daughter, Marianne until she became twenty-one.
• $300 yearly to Mary (Polly) Kenton, his former housekeeper and $300 yearly to  each of her sisters, Mrs. Deborah Scott, and Mrs. Catherine M'Laren.
• $300 yearly to Mrs. Amelia G. Taylor.
• 280,000 acres and about thirty slaves in Louisiana, to the City of New Orleans, providing they were administered by his friend, Judge Henry Bree.
• $500,000 to Philadelphia "to layout, regulate, curb, light, and pave a passage or  street, fronting on the Delaware River, to be called Delaware Avenue and extending from South or Cedar Street all along the east part of Water Street."
• $300,000 to the State of Pennsylvania to improve canal navigation and enact laws that would permit Philadelphia to improve its port.

 

           The residual of his estate, approximately five million dollars, both real and personal, he left to the City of Philadelphia to construct and maintain a school for "such a number of poor male white orphans, as can be trained in one institution, a better education, as well as a more comfortable maintenance, than they usually receive from the application of the public funds."  He declared that no part of his Pennsylvania real estate should ever be sold and rent from the properties should be used to maintain the properties and maintain his school.  He set a limit of two million dollars[2] to construct the school.  Originally, the school was to be located between Market (High) and Chestnut Streets and 11th and 12th Streets.  A codicil, dated June 20, 1831 revised the location to the Peel Hall site, then in the outskirts of the city, after he purchased it from William Parker.  The Peel Hall site is the present location of Girard College whose official address is Girard and Corinthian Avenues, Philadelphia.  He directed that the school be large enough to accommodate three hundred (300) "scholars" and the necessary staff.  He described, in architectural detail, the dimensions and features of the school and required that it consist of a main building and four out buildings.  Finally, he directed that it "be enclosed with a solid wall, at least fourteen inches thick, and ten feet high, capped with marble and guarded with irons on the top, so as to prevent persons from getting over."

           He said, "As many poor male white orphans, between the ages of six and ten years, as the said income shall be adequate to maintain, shall be introduced into the College as soon as possible."  He specified that should there be more applicants than vacancies, preference be given to the orphans from Philadelphia, then Pennsylvania, then New York City, his first port of entry in North America, and finally New Orleans.  He described the care of students and directed that they be instructed in "Reading, Writing, Grammar, Arithmetic, Geography, Navigation, Surveying, Practical Mathematics, Astronomy, Natural, Chemical, and Experimental Philosophy, the French and Spanish languages, and such other learning and science as the capacity of the several scholars may merit or warrant."  The students were to remain at the College until they were between fourteen and eighteen years of age unless they were declared unfit.

           The Will contained these restrictions.  The excess income not necessary to maintain the College, was to be invested in "good securities," thereafter to remain a part of the capital.  "In no event, shall any part of the said capital be sold, disposed of, or pledged, to meet the current expenses of the said Institute, to which I devote the interest, income, and dividends thereof, exclusively."  None of his money or estate could be used for anything except for that specified in the Will.  Separate accounts were to be established for each endowment.  He required that a yearly report of the expenses, expenditures, and growth of his estate be submitted to the State Legislature and published in the local newspapers.  He prohibited clergy from entering the College or holding a position on its staff.  This restriction, he said, was to isolate the students from the confusion of the conflicting doctrines that existed among the various religions.  However, he encouraged the lay teachers to teach the principles of Christianity and directed that they "instill into the minds of the scholars the purest principles of morality," so that later in life the student would be wise enough to select the religion of his choice.[3]

            He appointed these executors; Timothy Paxson, Thomas P. Cope, Joseph Roberts, William J. Duane, and John A. Barclay.  John H. Irwin, Samuel Arthur,[4] and S. H. Carpenter witnessed the Will.

            Aspects of the Will were discussed by William J. Duane, Girard's lawyer and confidant, before a Committee of the Pennsylvania legislature on February 25, 1842, and documented in Report of The Majority and Minority of the Select Committee, Relative to the Estate of Stephen Girard, dec'd. published 1842.  He said that he and Girard spent several months discussing the content of the Will.  Often, when "dining at Mr. Girard's country home"[5] they discussed law, politics, religion, endowments and architecture.  Duane described Girard as "a good judge of language, none better and the bones and muscle of the Will were all Mr. Girard's, whereas I put the flesh and the color."  Duane revealed that Girard conceived the idea to build a school for orphan boys in 1826.  Duane convinced him to build the school outside the City.  He and Girard had many conversations about the school after the Will was written.  He believed that the main building would not have columns had Girard lived during construction.  Girard never suggested columns and in fact despised them.  He believed columns to be "appropriate for Temples and not suited for poor orphans."[6]  Duane believed that had Girard lived longer he probably would have revised his building specifications, favoring simplicity.

            Over the years the Courts have set aside nearly all the restrictions contained in the Will.  Today the College educates other than white, other than male, and other than orphan children.  Clergy have been permitted entrance to the grounds.  Most of today's students would not qualify under the original terms of the Will.  Also, contrary to Girard's direction, most of the real estate property has been sold and today the Estate is nearly totally dependent on investments other then real estate.  The philosophy that preserved the sanctity of wills was set aside.  How did this happen?

           E. Alfred Smith, a Girard College graduate and an Attorney, in an undated paper entitled Stephen Girard and His Will,[7] reveals that the Will was contested and defended several times before this century.  The first contest occurred in 1833.  Girard's brothers Etienne and John, and sister Sophia, and their children attempted, unsuccessfully, to set aside the Will.  They were awarded four thousand acres of Pennsylvania land, that Girard purchased after writing the Will.

            The family attempted to break the Will again in 1836.  They claimed that Philadelphia lacked authority to administer the Will, that the number of beneficiaries was vague, and that the Will conflicted with the laws of Pennsylvania regarding "rights of conscience."  The lower court ruled for the family.  The case was appealed to the Supreme Court where Daniel Webster represented the family and the famous Horace Binney with John Sergent defended the Will for the City.  Among other issues, Webster contested Girard's right to include a restriction banning clergy from the College.  Webster claimed that the restriction was contrary to public policy and Christian morality.  The court rejected Webster's arguments and sustained the Will (VIDAL V. GIRARD'S EXECUTORS 2 HOW.127  1844).[8]

            When the Consolidation Act of 1854 extended the boundaries of Philadelphia by merging the Old City and twenty-eight other townships and boroughs, the family claimed that the consolidated municipality lacked the right to administer the Will.  The family's claim was denied (GIRARD V. PHILADELPHIA, 74 U.S. 1 1869 ).

            The Court ruled against the family in 1863 when they contested the right of Girard or any individual to restrict sale of his possessions (PHILADELPHIA V. HEIRS OF STEPHEN GIRARD, 45 PA. 9 1863).

           Again, the family was unsuccessful in 1880 when they tried to obtain the excess moneys that accumulated since Girard's death, claiming they were not needed by the school (GIRARD'S APPEAL, PENN. 347  1880).  In Philadelphia v. Fox, 64 Pa. 169 1870., the creation of the Board Of Directors of City Trusts was upheld.  In that case the family claimed that selection of the Trustees by the Judges made it impossible for the Judges to remain impartial in a conflict.

           In Field v. Directors of Girard College, 54 Pa. 233 1867 the Court declared that the City Council could not contravene the Will's direction.

           In the Soohan v. Philadelphia case, 33 Pa. 9 1859 the court defined Girard's use of the word “orphan” as a fatherless child.  This ruling was necessary because some people believed it was necessary to lack both parents to be an orphan.

           Because the Will was so often successfully defended, it was considered sound and defensible.  So it was until the 1950s, when courts began to consider social changes, and political expediency, when interpreting the constitutionality of a man's last wishes.

           In this century, the most controversial aspect of the Will involved its "white only" restriction.  Racial barriers were rightfully and finally coming down throughout the country.  Minorities were beginning to unite and to gain political clout.  Spurred by the Supreme Court decision ruling segregation in the nation's public schools to be unconstitutional, Philadelphia councilman Raymond Pace Alexander, a Negro, sponsored the resolution which asked the City Solicitor to seek a court ruling on Girard's "white only" restriction.  He claimed that since the City of Philadelphia administered the College through the Board of City Trusts and, since the school is supported by public funds through tax exemptions, the Board could not abide by the racial restriction.  The resolution asked the Board to admit all orphans regardless of race.  On May 28, 1954, the Philadelphia Council approved the resolution.  Thus began legal maneuvering and controversy that lasted from 1954 until the Will was set aside in 1968 and Girard College accepted the first non-White students.

           In the first proceedings the Court upheld the Will and declared that to subvert the Will would destroy the entire structure of the law of Wills in Pennsylvania.  The appeal was heard by the Pennsylvania Supreme Court[9] who sustained the Will stating among other things that "an individual has the right to dispose of his property by gift or will as he sees fit."  The court stated that if administration of the Will by the public appointed Board of City Trusts became a problem, the Board could be dismissed and replaced by private trustees.  The U. S. Supreme Court denied a request to review the State Court's decision.

            The following year, the court declared that a Board appointed by the city could not act as trustees.[10]  The Philadelphia Orphans' Court appointed private trustees and transferred the $75 million in assets to the new trustees.

            Things remained calm although The National Association for the Advancement of Colored People (NAACP) didn't like the maneuver and in 1965, began to picket the College.  Cecil B. Moore, a local Black politician, attorney and activist led the pickets.  He threatened to seek withdrawal of the school's educational license and to have the tax exempt status modified.  The city and state officials tried unsuccessfully to coerce the Board to request the Court to allow admission of non-white boys.  The Trustees reiterated that this was not a case of discrimination and that they were bound to uphold Girard's wishes and contrary action might "strike at all such benefactions limited to beneficiaries of a specified sex, race, national origin or religion."

           In December 1965 a suit was filed by the City and State, submitted on behalf of seven Negro boys who were refused admittance to the College.[11]  In September 1966, United States District Judge Joseph S. Lord III ruled that the school must open its doors to all orphan boys regardless of race.[12]  He ruled that since Girard College was supervised by the Commonwealth it was not a distinctly private school, and therefore subject to the Pennsylvania Public Accommodation Act 121.  He made this comment, "Provisions in wills or trust which contrive the statutes or public policies are unenforceable."  The Trustees appealed this decision to the U.S. Court of Appeals.

           The city and state, arguing to admit Negro children, indicated that there were several precedents for changing the Will.  Their attorneys wrote that the Orphans’ Court had already granted these nine deviations to the Will.

1. Permitted the sale of Girard's property.
2. Permitted leases on Girard property to extend beyond the five-year restriction.
3. Provided a definition of an Orphan.
4. Permitted parental removal of the students before a prescribed age.
5. Permitted the students to attend religious services of their faith, in spite of Girard's position on religion.
6. Extended the 6-10 age entrance restriction to eleven in 1961, to attract more students.
7. Abolished indenturing of students after graduation.
8. Directed the establishment of a private board of Trustees.
9. Permitted entrance of other than "poor" children.

 

            In response to the petition, the trustees claimed that Girard College was an orphanage rather than a school and it was distinctly private and therefore not subject to the Public Accommodation Act.  That position was upheld on February 28, 1967, when Judge Harry E. Kalodner of the U.S. Court of Appeals ruled that Judge Lord erred in ruling that Girard College was subject to the Public Accommodations Act.  The case was returned to Judge Lord to decide if the Will violated the Fourteenth Amendment.  On March 6, 1968 the Court ruled that excluding Negroes constituted illegal racial discrimination, a violation of the Fourteenth Amendment.  A further appeal for a Supreme Court review was denied without comment.

           The decision shocked the legal profession.  The conclusion received national attention because throughout the country there were many endowments with similar restrictions.  Changes in society's thinking came rapidly.  On May 22, 1968, The Philadelphia Inquirer reported, "Girard to enroll Negro pupils as soon as possible, ending a  fourteen-year fight to admit non-White students.”  On September 11, 1968, Girard College admitted four Negro and two Asian boys.  The following month, a fifth Negro boy was admitted.  The integration was without incident.  The NAACP sent letters to six hundred Negro boys encouraging them to apply for future admittance.  The private Trustees of the Estate of Stephen Girard were discharged from their duties and the Board of Directors of City Trusts resumed responsibility for the Estate of Stephen Girard.

           Other provisions of the Will were set aside.  In 1973 the College faced an enrollment crisis.  Very few candidates, Black or White, were applying for admission.  This problem was not unique to Girard College.  Social programs existed that aided a single parent to raise a child.  The number of orphans was decreasing and parents were not placing their children in institutions.  A typical example of this involved the Charles E. Ellis School in Newtown Square, Pennsylvania.  Founded in 1918, it was privately endowed and was like Girard College except it was for girls.  In June 1974, lacking applicants, it petitioned the Court to close its doors.[13]

            Although Girard College spent $3,000 advertising nationally, student population dropped fifty percent in five years.  More students were graduating or leaving than were enrolling.  The Trustees requested and were granted permission to change the upper-age restriction from 10 to 14 and to permit the admission of motherless boys.

            To broaden the base of potential students, in 1977, the Court authorized the admission of "functional" orphans.  These are children who receive inadequate care from their natural parents because of separation, divorce, desertion, disability, or "any other reason."

           On  September 3, 1982, the Orphan's Court approved the Board's petition to permit the College to accept girls, another significant deviation from the Will.  Since the court had set aside several "all male" school provisions, the Board wisely chose not to waste money for further litigation.  Instead, they chose to provide this free education to as many children as the facility could accommodate, without regard to race, sex, religion, nationality, orphan status, or family economics.  The qualifications for admittance today are: be from a single-parent home of limited income, have an IQ of at least 100, be on grade level in basic subjects as determined by testing administered by the College, be in good physical health, have no serious behavioral or adjustment problems, have a good reference from a previous school, and be between 6 and 11 years of age.

           Ironically, with all the changes to the Will, the Philadelphia Inquirer, on May 5, 1973 reported that "Girard College bars a priest."  The priest came to the College to attend an organ recital.  The recital was advertised as being open to the public.  Based on the religious restriction in the Will,  he was denied admittance.  Finally, within the last year, the Board turned its head and permitted a Black ordained minister to enter the grounds and since then other clergy have been admitted to the campus.

           Would Stephen Girard object to the court ordered changes to his Will?  Probably not. Many people thought Girard was peculiar, but he was not a bigot.  He wrote a Will according to the customs of the times in which he lived.  His goal was to educate the poor and unfortunate who could not receive an adequate education.  Today Girard College is doing that and Stephen Girard would probably be satisfied and not resent the provisions of the Will that have been set aside.  To those people who complain about the Will changes, let them consider whether the College would have survived without the changes.  Probably not.