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.
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 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
- $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
- $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
- $500 to persons indentured to him at the time of
- $1000 to Francis Hesley, son of the farm's
- $1000 yearly to Mrs. Elizabeth Ingersoll, widow
of attorney Jared Ingersoll.
- $400 yearly to Catherine Girard, widow of J. B.
- $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
- $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 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
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.
He appointed these executors;
Timothy Paxson, Thomas P. Cope, Joseph Roberts, William J. Duane, and John A.
Barclay. John H. Irwin, Samuel Arthur, 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" 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." Duane believed that had Girard lived longer
he probably would have revised his building specifications, favoring
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
E. Alfred Smith, a Girard College
graduate and an Attorney, in an undated paper entitled Stephen Girard and His
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).
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
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
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 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. 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. 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. 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.
- Permitted the sale of Girard's property.
- Permitted leases on Girard property to extend
beyond the five-year restriction.
- Provided a definition of an Orphan.
- Permitted parental removal of the students before
a prescribed age.
- Permitted the students to attend religious
services of their faith, in spite of Girard's position on religion.
- Extended the 6-10 age entrance restriction to
eleven in 1961, to attract more students.
- Abolished indenturing of students after
- Directed the establishment of a private board of
- Permitted entrance of other than "poor"
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.
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.