Y\e\re> ... o^iVxe. \c\Ye. Si'ephe'rv ^OT\rc\YcA. Ur THE DECISION OF THE SUPREME COURT OF PETVNSYJLYANBA, IN THE EJECTMENTS BROUGHT BY THE HEIRS AT LAW OF THE EATE STEPHEW GIRARD AGAINST “THE MAYOR, ALDERMEN, AND CITIZENS OP PHILADELPHIA,** STATED AND CONSIDERED. Philadelphia, September, 1833. PHILADELPHIA : PRINTED BY LYDIA R. BAILEY, NO. 26 NORTH FIFTH STREET. Digitized by the Internet Archive - in 2016 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/decisionofsupremOOpenn ! DECISION - , &c. u> V r A c 2 & Stephen Girard, of the city of Philadelphia, in the com- monwealth of Pennsylvania, mariner and merchant, died on the 26th December, 1831, unmarried and without issue, hav- ing made his will, dated the 16th February 1830, and two codicils thereto, dated the 25th December 1830, and the 20th June 1831. By his said Will, he gave to his heirs at law, and to different members of their families, certain real and personal estate, as will appear by the following clauses of that instrument: — “ IX. I give and devise my house and lot of ground thereto belonging, situate in rue Ramouet aux Chartrons, near the city of Bordeaux, in France, and the rents, issues, and profits thereof, to my brother, Etienne Girard, and my niece Victoire Fenellon, (daughter of my late sister Sophia Girard Capayron,) (both residing in France,) in equal moieties for the life of my said brother, and, on his decease, one moiety of the said house and lot to my said niece Victoire, and her heirs forever, and the other moiety to the six children of my said brother, name- ly, John Fabricius, Marguerite, Ann Henriette, Jean August, Marie, and Madelaine Henriette, share and share alike, (the issue of any deceased child, if more than one, to take amongst them the parent’s share) and their heirs forever. “ X. I give and bequeath to my said brother, Etienne Gi- rard, the sum of Five Thousand Dollars , and the like sum of Five Thousand Dollars to each of his six children above named : if any of the said children shall die prior to the re- ceipt of his or her legacy of five thousand dollars, the said sum ( 4 ) shall be paid, and I give and bequeath the same to any issue of such deceased child, if more than one, share and share alike. “ XI. I give and bequeath to my said niece, Victoire Fenel- lon, the sum of Five Thousand Dollars. “ XII. I give and bequeath absolutely to my niece, Antoinet- ta, now married to Mr. Hemphill, the sum of Ten Thousand Dollars , and I also give and bequeath to her the sum of Fifty Thousand Dollars , to be paid over to a trustee or trustees to be appointed by my executors, which trustee or trustees shall place and continue the said sum of fifty thousand dollars upon good security, and pay the interest and dividends thereof as they shall from time to time accrue, to my said niece for her separate use, during the term of her life, and from and imme- diately after her decease, to pay and distribute the capital to and among such of her children and the issue of deceased chil- dren, and in such parts and shares as she the said Antoinetta, by any instrument under her hand and seal, executed in the presence of at least two credible witnesses, shall direct and ap- point, and for default of such appointment, then to and among the said children and issue of deceased children in equal shares, such issue of deceased children, if more than one, to take only the share which their deceased parent would have taken if living. “ XIII. I give and bequeath unto my niece, Carolina, now married to Mr. Haslam, the sum of Ten Thousand Dollars , to be paid over to a trustee or trustees to be appointed by my executors, which trustee or trustees shall place and continue the said money upon good security, and pay the interest and dividends thereof from time to time as they shall accrue, to my said niece, for her separate use, during the term of her life ; and from and immediately after her decease, to pay and distribute the capital to and among such of her children and issue of deceased children, and in such parts and shares, as she the said Carolina, by any instrument under her hand and seal, executed in the presence of at least two credible witnesses, shall direct and appoint, and for default of such appointment, then to and among the said children, and issue of deceased children, ( 5 ) in equal shares, such issue of deceased children, if more than one, to take only the share which the deceased parent would have taken if living ; but if my said niece, Carolina, shall leave no issue, then the said trustee or trustees, on her decease, shall pay the said capital and any interest accrued thereon, to and among Caroline Lallemand, (niece of the said Carolina,) and the children of the aforesaid Antoinetta Hemphill, share and share alike. “ XIV. I give and bequeath to my niece Henrietta, now married to Dr. Clark, the sum of Ten Thousand Dollars; and I give and bequeath to her daughter Caroline, (in the last clause above named,) the sum of Twenty Thousand Dollars — the interest of the said sum of twenty thousand dollars, or so much thereof as may be necessary, to be applied to the maintenance and education of the said Caroline during her mi- nority, and the principal with any accumulated interest, to be paid to the said Caroline, on her arrival at the age of twenty- one years.” And he also bequeathed to the Commonwealth of Pennsyl- vania, the sum of three hundred thousand dollars, in the fol- lowing manner : “ XXIII. I give and bequeath to the Commonwealth of Pennsylvania, the sum of Three Hundred Thousand Dollars , 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 authori- ties of the said Commonwealth as shall be necessary and amply sufficient to carry into effect, or to enable the constituted au- thorities of the city of Philadelphia to carry into effect the several improvements above specified; namely, 1 . 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 erection of any such obstructions to the eastward of said Delaware Avenue; 2. Laws , to cause all ( 6 ) wooden buildings as above described to be removed, and to prohibit their future erection within the limits of the city of Philadelphia; 3. Laws , providing for the gradual widening, regulating, paving, and curbing Water street, as herein before described, and also for the repairing the middle alleys, and in- troducing 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.” The Testator then gave the residue of his immense estate to “the Mayor, Aldermen and Citizens of Philadelphia,” in the manner set forth in the following clause of his Will — “ XX. And whereas, I have been for a long time impressed with the importance of educating the poor, and of placing them by the early cultivation of their minds and the developement of their moral principles above the many temptations, to which, through poverty and ignorance they are exposed ; and I am particularly desirous to provide for such a number of poor male white orphan children, as can be trained in one institu- tion, a better education, as well as a more comfortable main- tenance than they usually receive from the application of the public funds: And whereas, together with the object just ad- verted to, I have sincerely at heart the welfare of the city of Philadelphia, and, as a part of it, am desirous to improve the neighbourhood of the river Delaware, so that the health of the citizens may be promoted and preserved, and that the eastern part of the city may be made to correspond better with the in- terior: Now, I do give, devise, and bequeath all the residue and remainder of my Real and Personal Estate of every sort and kind wheresoever situate, (the real estate in Pennsylvania charged as aforesaid) unto ‘ the Mayor, Aldermen and Citi- zens of Philadelphia,’ their successors and assigns, in trust, to and for the several uses, intents, and purposes hereinafter men- tioned and declared of and concerning the same, that is to say: ( 7 ) So FAR AS REGARDS MY REAL ESTATE IN PENNSYLVANIA, IN TRUST, THAT NO PART THEREOF SHALL EVER BE SOLD OR ALIE- NATED BY THE SAID THE MAYOR, AlDERMEN AND ClTIZENS of Philadelphia, or their successors, but the same shall for ever thereafter be let from time to time, to good tenants, at yearly, or other rents, and upon leases in possession not ex- ceeding five years from the commencement thereof, and that the rents, issues, and profits arising therefrom shall be applied towards keeping that part of the said real estate situate 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, when- ever necessary, by erecting new buildings, and that the nett residue (after paying the several annuities herein before pro- vided for) be applied to the same uses and purposes as are here- in declared of and concerning the residue of my personal es- tate : And so far as regards my real estate in Kentucky, now under the care of Messrs. Triplett and Burmley, in trust, to sell and dispose of the same, whenever it may be expedient to do so, and to apply the proceeds of such sale to the same uses and purposes as are herein declared of and concerning the re- sidue of my personal estate. ” After pointing out with great distinctness the purposes for which he gives the residue of his estate to “the Mayor, Aldermen and Citizens of Philadelphia,” the Testator proceeds in the following emphatic language to declare the conditions upon which the said property is to be retained by them : “ To all which objects, the prosperity of the city, and the health and comfort of its inhabitants, I devote the said fund as aforesaid, and direct the income thereof to be applied yearly and every year forever, alter providing for the College as here- inbefore directed, as my primary object. But, if the said city shall knowingly and wilfully violate any of the conditions here- inbefore and hereinafter mentioned, then I give and bequeath the said remainder and accumulations to the Commonwealth of ( 8 ) Pennsylvania, for the purposes of internal navigation ; except- ing, however, the rents, issues, and profits of my real estate in the city and county of Philadelphia, which shall forever be reserved and applied to maintain the aforesaid College, in the manner specified in the last paragraph of the XXIst clause of this Will : And if the Commonwealth of Pennsylvania shall fail to apply this or the preceding bequest to the purposes be- forementioned, 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 promot- ing 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 Col- lege as aforesaid) to the United States of America, for the pur- poses 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 say : — First , That none of the monies, principal, interest, dividends, or rents, arising from the said residuary devise and bequest, shall at any time be applied to any other purpose or purposes whatever, than those herein mentioned and appointed.” The following are the two codicils made by the testator. “ Whereas, I, Stephen Girard, the Testator named in the foregoing Will and Testament, dated the sixteenth day of February, eighteen hundred and thirty, have, since the execu- tion thereof, purchased several parcels and pieces of real estate, and have built sundry Messuages, all which, as well as any real estate that I may hereafter purchase, it is my wish and intention to pass by the said Will : Now, I do hereby repub- lish the foregoing last Will and Testament, dated February 16 , 1830 , and do confirm the same in all particulars: In wit- ness, I, the said Stephen Girard, set my hand and seal here- ( 9 ) unto, the twenty-fifth day of December, eighteen hundred and thirty. STEPHEN GIRARD. [Seal.] “ Signed, sealed, published, and declared' by the said Stephen Girard, as and for a republication of his last Will and Testament, in the presence of us, who, at his request, have hereun- > to subscribed our names as witnesses thereto in the presence of the said Testator and of each other, Decem- ber 25th, 1830. JOHN H. IRVIN, SAMUEL ARTHUR, JNO. THOMSON. “ Whereas, I, Stephen Girard, the Testator named in the foregoing Will and Testament, dated February 16, 1830, have, since the execution thereof, purchased several parcels and pieces of land and real estate, and have built sundry Messuages, all which, as well as any real estate that I may hereafter pur- chase, it is my intention to pass by said Will : And whereas in particular, I have recently purchased from Mr. William Parker, the Mansion House, out-buildings, and forty-five acres and some perches of land, called Peel Hall, on the Ridge Road, in Penn Township : Now, I declare it to be my intention, and I direct, that the Orphan establishment, pro- vided for in my said Will, instead of being built as therein directed upon my square of ground between High and Ches- nut and Eleventh and Twelfth Streets in the City of Phila- delphia, shall be built upon the estate so purchased from Mr. W. Parker, and I hereby devote the said estate to that pur- pose, exclusively, in the same manner as I had devoted the said square, hereby directing that all the improvements and arrangements for the said Orphan establishment prescribed by my said Will as to said square shall be made and executed upon the said estate, just as if I had in my Will devoted the B ( 10 ) said estate to said purpose — consequently, the said square of ground is to constitute, and I declare it to be a part of the re- sidue and remainder of my real and personal estate, and given and devised for the same uses and purposes as are declared in section twenty, of my Will, it being my intention that the said square of ground shall be built upon and improved in such a manner as to secure a safe and permanent income for the pur- poses stated in said twentieth section. In witness whereof, I, the said Stephen Girard, set my hand and seal hereunto, the twentieth day of June, eighteen hundred and thirty one. STEPHEN GIRARD. [ Seal .] “Signed, sealed, published, and declared, ' by the said Stephen Girard, as and for a republication of his last Will and Testament, and a further direction in relation to the real estate therein mentioned, in the presence of us, > who, at his request, have hereunto subscribed our names as witnesses thereto, in the presence of the said Testator, and of each other, June 20, 1831. S. H. CARPENTER, L. BARDIN, SAMUEL ARTHUR.” On the 31st December, 1831, the will and codicils were duly proved before the Register of Wills for the City and County of Philadelphia, and on the same day Letters Testa- mentary were granted to the Executors. The following real estate was purchased by the Testator subsequently to the date of his will and codicils: “ Schedule of the Real Estate of Stephen Girard , purchased subsequent to the 20th of June , 1831. 1831. Oct. 5, Two houses and lots on Walnut Street, be- tween Second and Dock streets, Nos. 63 C 11 ) and 65, and one house and lot on Dock street, No. 61, $10,666 67 Oct. 2 7, A lot of land in Passyunk township, con- taining 60 acres and 87 perches, per deed of this date, - 6,659 81 27, A ground rent of $25 T 6 ^. per annum, pay- able by Philip Smith, out of a lot of ground in Spruce street, between Third and Fourth streets. Due 25th of March and September in every year, per deed of this date, - 569 74 27, A house and lot on the north side of Coates street, west of Sixth street, per deed of this date, ----- 3,000 00 Nov. 2, A lot of ground on the north-east corner of Coates and John streets, per deed of this date, 1,800 00 4, A house and lot in South Third street, No. 48, per deed of this date, - - 12,000 00 Dec. 1, A messuage and lot of ground in Passyunk township, having a front on Schuylkill, per deed of this date, - 3,000 00 21, Stores, wharf, and dock, in North Water street, between Market and Arch streets, late Stiles’s estate, deed dated this day, taken subject to a mortgage for $21,000. Residue paid, - 24,222 33 26, A lot of ground in Schuylkill county, near Mount Carbon, on the river Schuylkill, intended for landings, per deed dated — inst. ------ 4,500 00 $66,418 55” The Executors paid the different heirs at law their respec- tive legacies as follows, deducting the collateral inheritance tax. ( 12 ) « 1832. July 5, Legacy to Mad. Vedal, formerly V. Fe- nellon, deducting collateral inheritance tax, - $ 4,875 00 6, Legacy to Mrs. Henrietta Clark, do. 9,750 00 7, Legacy to Mrs. Maria Hemphill, do. 9,750 00 Aug. 21, Legacy to trustees of Mrs. M. A. Hemphill, - do. 48,750 00 Sept. 1, Legacy to trustees of Mrs. Haslam, do. 9,750 00 1833. Jan. 2, By this sum paid John F. Girard, attor- ney in fact, the following legacies, viz. Etienne Girard, - - $5,000 00 Less collateral inherit, tax, 125 00 $4,875 00” The legacies given to the children of some of the heirs at law were also paid, amounting to - - - $45,000 00 And on the 19th April, 1832, the legacy of $300,000, given to the Commonwealth of Pennsylvania, was paid to the state treasurer. The following amicable actions of ejectment were entered in the Supreme Court of Pennsylvania, for the Eastern Dis- trict, on the 8th and 13th October, 1833. Louis Vidal and Frangoise Fenellon his wife, " vs. I The Mayor, Aldermen, and Citizens of Phila- delphia, July, 1832. No. 44. John Hemphill and Antoinetta his wife, John"] Y. Clark and Henrietta his wife, and John j B. Haslam and Carolina his wife, }> No. 45. vs. Same. Etienne Girard, vs. Same. No. 46. ( 13 ) The following is a copy of the agreements under which they were entered, and also of the cases stated for the opinion of the Court. Amicable Action in Ejectment, for the following described Real Estate: Two houses and lots on Walnut street, between Second and Dock streets, Nos. 63 and 65, and one house and lot on Dock street, No. 61, purchased October 5, 1831, by the late Stephen Girard. A lot of land in Passyunk township, containing 60 acres and 87 perches, purchased by the same, October 27th, 1831. A house and lot on the north side of Coates street, west of Sixth street, purchased by the same, October 27th, 1831. A lot of ground on the north-east corner of Coates and John streets, purchased by the same, November 2, 1831. A house and lot in South Third street, No. 48, purchased by the same, November 4, 1831. A messuage and lot of ground in Passyunk township, hav- ing a front on Schuylkill, purchased by the same, December 1, 1831. Stores, wharf, and dock in North Water street, between Market and Arch streets, late Stiles’s estate, purchased by the same, December 21, 1831. It is agreed that the above action be entered to the above term, as if a Summons in Ejectment had been regularly issued and returned served, and that the description of the property, and the dates at which Stephen Girard acquired the same, may be altered and amended according to the deeds. Case stated for the opinion of the Court , as upon a special verdict. Stephen Girard, Esquire, late of the City of Philadelphia, Banker, died on the 26th day of December, 1831 — seised in fee ( 14 ) of all and singular the Real Estate set forth in the agreement to' enter the above action, purchased by him at the dates mentioned in the said agreement — having first made and executed his last will and testament, dated the 16th day of February, 1830, and codicils thereto, dated respectively on the 25th day of Decem- ber, 1830, and the 20th day of June, 1831, duly proved in the Register’s Office for the City and County of Philadelphia, on the 31st day of December, 1831, [prout will and codicils which are to be considered as part of this case] and leaving at the time of his death, the following named heirs at law. 1 . — Etienne Girard , a brother of the testator of the whole blood. 2. — Antoinetta Hemphill , wife of John Hemphill, Henrietta Clark , wife of John Y. Clark, and Caroline Haslam , wife of John B. Haslam; the said Antoinetta, Henrietta, and Caroline being the children of John Girard, deceased, a brother of the tes- tator of the whole blood. 3. — Frangoise Fenellon Vidal , the wife of Louis Vidal, the said Frangoise Fenellon being the daughter of Sophia Girard Capayron, deceased, a sister of the testator of the whole blood. The defendants are in possession of all the said Real Estate. The deeds granting the Estate mentioned to the said Stephen Girard, are to be considered as part of this case. If the Court shall be of opinion that the said Real Estate, or any part thereof, was devised by and passed under the said will and codicils to the defendants, then judgment to be en- tered for the defendants, for the whole or such part of the said Estate as was devised and passed. — If the Court shall be of opinion that the said Real Estate, or any part thereof, was not devised by and did not pass under the said will and codicils, then judgment to be entered for the plaintiffs, for one undivided third part of the Real Estate, in the agree- ( 15 ) men! mentioned, or for one undivided third part of so much thereof as was not devised by the said will and codicils, to the defendants. The cases were argued, and On the 29th March, 1833, judgments were entered in favour of the plaintiffs in each suit, and the following opinion of the Court was drawn up by Gibson, C. J. — In the report of the judges on the statutes, nothing is said about the 32 and 34 Hen. 8. which are therefore to be taken as not in force here ; but whether they were con- sidered as having never been so, or as supplanted by our statute of 1705, can not be positively known. They were most proba- bly thought to be repealed and supplied, as they were entirely within the rule laid down by Lord Holt in Blankard v. Galdy, 2 Salk. 411, and repeated by the Privy Council, as appears from the relation of the Master of the Rolls in 2 P. Wms. 75; that an emigrant colony carries with it the laws of the parent to an uninhabited country; or even to one acquired by con- quest, so far as regards matters in respect to which the exist- ing laws are silent, or enjoin what is immoral, or are contrary to the religion of the conqueror. It is plain that a country whose entire population has been displaced to make room for the new comers, is an uninhabited country for the purpose of receiving their laws; and it therefore seems singular that the distinguished judge who ruled Blankard v. Galdy, should shortly afterwards have held, in a case which involved the legality of slavery, that the laws of England did not extend to Virginia, being a conquered country; and the more so as the laws of the aborigines, if they had any, could not be sup- posed to have provided for the subject. Be that as it may, our courts have always held that the laws which were in force at the foundation of the colony, and not positively unsuitable to the condition of the colonists, were brought by them hither ; and it can not be thought that laws which enabled them to dis- pose of real estate, were unsuitable. During the twenty-four ( 16 ) years that elapsed between the charter and our statute, they could not have been without provision on the subject, and I know of none that was competent to satisfy their necessities but these very statutes; for it will appear in the sequel, that the intervening legislation on the subject of wills, had regard to the proof of the instrument and not the power of the testa- tor, with perhaps the single exception of the act to direct ‘ how the estate of any person shall be disposed of at his death, ’ passed the 10th of March, 1683. By that act, which may be seen in the Appendix to Hall and Sellers’s edition of the laws, page 9, it was provided: 6 That whatsoever estate any person hath in this province or territories thereof, at the time of his death, unless it appear that an equal provision be made else- where, shall be thus disposed of ; that is to say, one-third to the wife of the party deceased, one-third to the children equal- ly, and the other third as he pleaseth ; and in case his wife be deceased before him, two-thirds shall go to the children equally, and the other third to he disposed of as he shall think fit, his debts being first paid.’ In the margin we have these observations by Chief Justice Kinsey: ‘ 1. This act seems to restrain the power of devising more than one-third of the lands of which a man died seised. 2. This law, for aught I find to the contrary, continued till the first of the fourth month, 1693, when a law passed authorizing a man to devise all his real estate.’ This repealing law I have been unable to find. But it is observable that the Act of 1683, included land, if at all, only by force of the word ‘ estate’ and not of any more specific term; so that it is by no means clear that the inclina- tion of Judge Kinsey’s opinion, for he spoke doubtingly, ac- corded with the true construction or actual understanding of the times. He could not have known by experience the con- struction put on the act in practice, for his notes were written probably forty years after the repeal of it; and if he had been a member of the profession during that period, he was not till 1730, an inhabitant of Pennsylvania. Granting his opinion to be that land was included, it is pretty evident the crown thought otherwise ; forjudging from the jealousy evinced by ( 17 ) it in the case of much less important innovations, it is scarce to be believed, that it would have tolerated for ten years so violent an infraction of the spirit of the charter which required a conformity of the laws to those of the mother country, as a restriction of the power of devising to a third of the testator’s land, or the dower of his widow to be turned to a fee. But if it were even applicable to land, still it was viewed by the Chief Justice but as a restraining statute, not an enabling one ; and this plainly shows what, in his opinion, was the law before. It was therefore to remove a doubt of the interpretation, or to repeal the law taking the interpretation of the Chief Justice to have been established — in any event to restore the law to its former footing — that the act of which he speaks, was pass- ed in 1693. Of the legislation which took place in relation to proof of the instrument, I shall have occasion to speak again. It seems pretty clear, then, that the English statutes of wills were originally in force with us, and not reported as being so still, only because the judges thought that our own statute was designed to supersede them in their whole extent. Judging of the substitute by its provisions, it might perhaps as easily have been deemed but ancillary to them as performing the same office in regard to them here, by exacting in addition to their requirements the observance of particular solemnities as matter of proof, that is performed by the statute of frauds in England. But even as an enabling statute, our act of 1705 was not a new law, but an act of legislation on the basis of an old one, which is therefore to be taken into consideration in the interpretation of inexplicit clauses, because it is reasonable to presume that no departure from the existing law was in- tended further than is expressed. For this reason it is, per- haps, that the act has always been understood by the profes- sion, in accordance with the British statutes. Had a variance been suspected, it must long ago have been put to the test of judicial decision; but no trace of such suspicion is to be found in our judicial records. It is argued, that whatever the gene- ral rule may be, the clauses in the codicils of this will which require real estate acquired subsequently to pass as if it were c ( 18 ) then the estate of the testator, make the case an exception to it; and the question therefore is not one of intention but of power. But even in the case of a general residuary devise, the intention to pass the estate is taken for granted; and what is there in the specific expression of such an intention here, but a greater degree of certainty in respect to what is in other cases taken for granted? Nothing in the books but the dictum in Brett v. Rigden, Plowd. 344, gives colour of authority to the supposed distinction. There it is said to have been deter- mined in the 39 H. 6. 18, that if a man devise a certain estate and have nothing in it at the time, but purchase it afterwards, it shall pass; because, as it is said, it must be taken that his in- tent was to purchase it, and were it not to pass the will would be void. All this was repudiated by Lord Holt in Bunker v. Cook, 11 Mod. 278, as being not even the dictum of a judge, but an assertion of counsel and unwarranted by the book cited for it; in which he is supported by Chief Justice Treby in Archer v. Bokenham, 11 Mod. 163. In truth the matter never depended on the actual intent; nor yet, as it was at one time supposed, on the restrictive words of the English statutes, and it is therefore of no importance to the question that those statutes were not reported as in force here. It is true that in Butler and Baker’s case, Lord Coke laid great stress on those words; but in Bunker v. Cook, or Broncker v. Coke, as it is reported in Holt’s Rep. 247, it was assserted by Lord Holt that Chief Justice Bridgeman had differed from Lord Coke in attaching importance to those words, in a case determined in the Common Pleas the 16 Car. 2. and that the judges in the Exchequer Chamber were of the same opinion: this too on the relation of Chief Justice Bridgeman himself. But what puts the matter at rest is, that in this case of Bunker v. Cook, the rule was applied in all its rigour to lands which were de- visable, not by force of the statute at all, but by custom ; and the judgment was affirmed in the House of Lords. The doc- trine was vigorously maintained in that case as well as in Buck- enham v. Cook (Holt’s Rep. 248) by Lord Holt; and in Archer v. Bokenham, by Chief Justice Treby; who together rested it ( 19 ) on these propositions: That a will is a species of conveyance, not strictly subject to the rules of conveyances at the common law, it is true, the vesting of the estate being postponed till the death of the testator; yet operating, as regards his dis- posing power and capacity, by relation to the making of it, insomuch as to require his power over the estate to be perfect at the time, just as his capacity must be perfect at the time, it being settled that the want of a disposing mind and memory at the performance of the act of disposition, is not supplied by the restoration of it before the death, for the same reason that an intervening loss of it will not prejudice a disposition unex- ceptionable at the time — in other words, that the act of dispo- sition must be complete in every respect at the performance of it: That a testator, like any other grantor, can not give what he has not; and that the same principle prevails in convey- ances to uses though construed liberally like wills, to favour the intention, as in Yelverton v. Yelverton, Cro. Eliz. 401, where a father covenanted to stand seised of land which he should purchase: That the form of pleading a devise, the tes- tator always being described as seised at the time of making his will, is strong though not conclusive evidence of the ne- cessity that he should be so in fact: That the reason why land differs in this respect from personal estate, is that the common law has provided in the event of intestacy, a fixed successor to the one and not to the other, even the statute of distribu- tion being but a direction to the executor how to administer the assets ; by reason of which, and the fluctuating nature of personal estate, which is changing every day, a different rule would require a new will to be made every day: That a sub- sequent purchase giving the land to the testator, is repugnant to the import of the devise which would give it to the devisee; and therefore not to be intended to have been made in subser- vience to the object of the will: And finally, that there is no case or authority to warrant the opposite doctrine. To the argument of such men as these, it would be presumptuous in me to attempt an addition, and I therefore refer the student to their reasons as stated in the report. The alleged dependence, ( 20 ) then, of the doctrine on the restrictive words of the British statutes being disposed of, it results that the question stands here exactly as it did in England, unless the specific provi- sions of our own statute be thought to make a difference. The clause which has been supposed to make this differ- ence, is in the first section. After requiring proof by two wit- nesses, and establishing a mode for its authentication, it is de- clared that wills so proved, 6 shall be good and available in law for the granting, conveying, and assuring, of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby bequeathed;’ and from the parity of pro- vision thus expressed is inferred an intention to create a parity of operation and effect. That such was not the object, seems manifest from the legislation which preceded it. By the fif- teenth law agreed upon in England, it was declared that c all wills and writings attested by two witnesses, shall be of the same force as to lands as other conveyances, being legally proved within forty days, either within or without the said province.’ This was evidently designed to preclude that pro- vision of the statute of frauds which requires three witnesses, and is worthy of special notice beside, not only for treating wills of land as conveyances, but for putting them on the foot- ing, as to proof, of testaments of chattels, which, by the Ca- non, and consequently by the English law, require but two. Lea v. Libb, 3 Salk. 396. This fundamental law received a regular statutory form from the first Assembly, convened at Upland in 1682, by whom it was enacted as the forty -fifth section of the Great Law, and in the terms in which it had been expressed in England, with the exception of two imma- terial words introduced, the last of them evidently by inad- vertence. Chief Justice Kinsey’s note in the margin is: ‘This Act as amended in the fourth of Queen Anne, remains to this day.’ Prov. Laws, App. 7. Now the fourth of Queen Anne, which he pronounces but an amendment, is the very act un- der consideration; and it seems clear therefore that he con- sidered the act of 1682, as the law of his day, except so far as it was amended by the Act of 1705. His notes were written ( 21 ) certainly after 1713 , as they contain a reference to acts passed in the close of that year, and probably after 1730 , when he removed from New Jersey to Pennsylvania. He was appoint- ed Chief Justice about the year 1743 , and died in that office, according to Proud, in 1750 . The Act of 1682 , however, was amended only as to the time of proof and the manner of authenticating it, the requisition of two witnesses being pre- served. But this is not all. An Act had been passed at New Castle in 1700 , (Append, to Prov. Laws, 7 .) which expressly following the analogy of conveyances as to the effect of the in- strument, required no more than legal proof without specify- ing the number of the witnesses. It therefore had, or might be supposed to have, the effect of putting wills of lands upon a lower footing as to proof than wills of chattels, about which it said nothing, and consequently left them on the footing of the general law. To say the least, it was open to an argument that one witness was sufficient for a will of land as in the case of any other conveyance of land. This Act having been repealed by the Queen in Council, as may be seen in Weis and Mil- ler’s edition of the laws, page 18 , our present act was passed in the same year, and the requisition of proof by two witnesses restored, with new provisions added as to the mode of authen- ticating it; and thus the reduction in the quantity of proof made by the Act of 1700 , was taken away, and wills of land were again put, as to proof, on the footing of testaments of chattels. It is needless to ask why. It was an express condi- tion of the charter that the laws for the regulation of property . should conform, as nearly as might be, to the laws of England, till altered by the provincial legislature; and the same jealousy of innovation which prompted the crown to repeal the act for the abolition of survivorship between joint tenants, passed in 1700 , as well as the two acts for barring entails by a deed ac- knowledged and recorded — the one passed in 1705 , and the other in 1710 , (Hall and Sellers’s edition of the laws, Append. 18 , 19 .) — might, on a question of further departure from the statute of frauds, induce it to stickle about a witness more or less. The clause in our statute of wills, to which I have par- ( 22 ) licularly adverted, seems therefore to have reference to the proof and not the effect of the instrument. The first was all that was in contest between the province and the crown. The fifteenth law agreed upon in England, or rather the Act of 1682, remained in force twenty-three years without opposi- tion; and during that time, wills of lands and testaments of chattels stood on the same footing. But no sooner did the act of 1700 reduce the proof of the former, or bring it into doubt, than it was repealed by the Privy Council; and when the pre- sent act of 1705 raised it again to the level of the act of 1682, the crown acquiesced. At no time does there appear to have been a disposition to change the effect of a will of lands as un- derstood in England ; indeed the very suspicion that such a design was harboured would have defeated it. On the con- trary, the language of all our laws is incomparably more em- phatic than that of any Act of Parliament, to show that a will of lands was esteemed a conveyance and no more. This sketch of the legislation which preceded the act of 1705, and which is here given in the order and nearly in the words of a dis- tinguished counsel, to whose research I am indebted for it, seems to put the intention of the legislature beyond the reach of doubt. The magnitude of the interest in contest, amounting as it does in value to more than sixty thousand dol- lars, as well as a respect for the doubt suggested by my brother Huston, has induced me to examine the foundations of this part of our law r with peculiar care; and the result is a firm con- viction, that the real estate acquired subsequently to the two codicils, did not pass by Mr. Girard’s will: consequently the plaintiffs are entitled to the succession under the intestate laws. Judgment for the plaintiffs accordingly. On the 9th April 1833, the Board of Commissioners of the Girard Estate, “ directed the Treasurer to settle the account of the intestate property , with the next of kin of Mr. Gi- rard , and pay over to them the balance in his hands , on ac- ( 23 ) count of that estate . Instructions were also given to the agents to deliver to them possession of said property On Tuesday the 9th of July, 1833, the following communi- cation appeared in the American Sentinel : <£ Remarks upon the decision of the Supreme Court of Penn- sylvania in the suits brought by the heirs at law of the late Stephen Girard, against 6 the Mayor, Aldermen and Citizens of Philadelphia. 5 Stephen Girard died on the 26th December, 1831, having made his Will, dated the 16th February, 1830, and two codi- cils thereto, dated the 25th December, 1830, and the 20th June, 1831. After the execution of the last codicil, he purchased cer- tain real estate, situate in the city and county of Philadelphia, and the county of Schuylkill, for which he paid the sum of $ 66,418 55 ; one of the estates being in addition, subject to a mortgage of $21,000. The heirs at law of Stephen Girard, claimed the whole of this after acquired real estate, upon the ground, that it did not pass by the Will or codicils, and that as to this property, he had died intestate. Amicable actions of ejectment were instituted, in the Su- preme Court for the Eastern District of Pennsylvania, by the heirs at law against ‘ the Mayor, Aldermen and Citizens of Philadelphia 5 to July, 1832, for the recovery of the lands, lots, &c., situate in the city and county of Philadelphia, pur- chased by the Testator after the 20th June, 1831. Cases were stated for the opinion of the court and argued, and on the 29th March, 1833, judgments were entered in all the suits, in favour of the plaintiffs. Upon examining the respective cases, and the opinion of the court delivered by Chief Justice Gibson, it will be found, that only one single naked question of law, was argued by counsel, or decided by the court ; and that was, whether real estate purchased subsequently to the date of his Will by a tes- tator, passed by that instrument. ( 24 ) All other questions relative to the title of the heirs to this real estate, were thus left open for future discussion and deci- sion ; and it appears to me that there is one very material point which demands a candid and dispassionate examination, and an ultimate decision by our highest judicial tribunal. In his Will, the Testator uses the following language: 6 Now I do give, devise, and bequeath, all the residue and re- mainder of my real and personal estate , of every sort and kind, wheresoever situate, (the real estate in Pennsylvania charged as aforesaid) unto 6 the Mayor, Aldermen and Citi- zens of Philadelphia,’ their successors and assigns, in trust to and for the several uses, intents and purposes hereinafter men- tioned and declared of and concerning the same, that is to say : So far as regards my real estate in Pennsylvania, in trust, that no part thereof shall ever be sold or alienated by the said the Mayor, Aldermen and Citizens of Philadelphia, or their successors,’ &c. In the first codicil, dated the 25th December, 1830, he says: 6 Whereas I, Stephen Girard, the testator named in the fore- going will and testament, dated the sixteenth day of Febru- ary, eighteen hundred and thirty, have, since the execution thereof, purchased several parcels and pieces of real estate, and have built sundry messuages, all which, as well as any real estate that I may hereafter purchase , it is my wish and in- tention to pass by the said Will: Now I do hereby repub- lish the foregoing last will and testament, dated February 16, 1830, and do confirm the same in all particulars.’ In his second and last codicil, dated the 20th June, 1831, he says: 6 Whereas I, Stephen Girard, the testator named in the foregoing will and testament, dated February 16, 1830, have, since the execution thereof, purchased several parcels and pieces of land and real estate, all which, as well as any real estate that I may hereafter purchase, it is my intention to pass by said Will. 9 Then follows a particular direction with regard to Peel Hall, and the lot at the corner of Twelfth and Market streets ; and the attestation is in these words : 6 Signed, sealed, pub- ( 25 ) lished, and declared, by the said Stephen Girard, as and for a republication of his last will and testament, and a further di- rection in relation to the real estate therein mentioned, in the presence of us, &c.’ From the language of the will and codicils, there can be no doubt that the Testator intended to include all after pur- chased real estate, in the residue devised to 4 the Mayor, Al- dermen, and Citizens of Philadelphia;’ and it is also perfectly clear, that he has used all the words necessary to effectuate such an intention, so far as laid in his power. If the heirs claiming this after purchased real estate, took no benefits under the Will, then the decision of the Supreme Court would rule the whole case; but as all the heirs at law of Mr. Girard, have legacies given to them by his Will, amount- ing in the whole to $ 90,000, exclusive of a devise of a house and lot of ground situate near the city of Bordeaux, in France, to two of them, the question naturally arises — can they 4 claim under , and in opposition to the same instrument ?’ This involves the doctrine of election, a well known and familiar branch of the law. This doctrine is very clearly explained by Lord Chancel- lor Erskine, in his judgment in the case of Thellusson v. Wood- ford, 13 Vesey Junior, 220, 221. 4 The jurisdiction,’ says Lord Erskine, 4 exercised by this court, compelling election, may be thus described : A person shall not claim an interest under an instrument, without giving full effect to that instru- ment, as far as he can. If, therefore, a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right, to defeat his disposition, giving to that per- son an interest by his will, that person shall not he permit- ted to defeat the disposition where it is in his power , and yet take under the will. The reason is the implied condition, that he shall not take both ; and the consequence follows that there must be an election ; for though the mistake of the tes- D ( 26 ) tator cannot affect the property of another person, yet that person shall not take the testator’s property unless in the man- ner intended by the testator.’ To illustrate and confirm this position, I would briefly re- fer to this case of Thellusson v. Woodford, and to the very late case of Churchman v. Ireland, reported 1 Russell and Mylne, 250, and decided by the present distinguished Lord Chancellor of England, on the 20th December, 1831. Peter Thellusson, by his celebrated will, directed that in case he should in his lifetime, enter into contracts for the pur- chase of lands, and die before the conveyance, such contracts should be carried into execution, and the money paid out of his personal estate, and the conveyances to be made to his trus- tees, their heirs, &c., to the uses of his will. The testator, within a month before his death, had contract- ed for the purchase of real estate to the amount of £ 30,000. His son and heir at law, to whom certain interests were bequeathed by the will, upon bill filed in the Court of Chan- cery, was called upon to make his election between the real estate, so descended to him, and the interests given him by the will. Lord Erskine said, 4 Mr. Thellusson’s heir takes these es- tates, as if his father had not made a will ; but my opinion is that he cannot also take what is given him by the will . He 7nust therefore elect .’ The case of Churchman v. Ireland, was this — Thomas Ire- land, by his will, devised and bequeathed ‘ all and singular my estate and effects whatsoever and wheresoever, and of what nature or kind soever, both real and personal, which I shall die possessed of, interested in, or entitled unto’ — to trustees upon trust amongst other things to sell and dispose of the same, and to distribute one-third part of the moneys arising from such sale, among all the children of his son. After the date of his will, the testator purchased a field, adjoining his other estate, and died leaving the eldest son of his said son, (who died in the testator’s lifetime) his heir at law. ( 27 ) A bill was filed praying that the heir at law, who was one of the legatees, might be put to his election. Lord Brougham decided first that the words used by the testator included the after purchased property, and secondly, that the will raised ‘a case of implied condition, and that the heir was bound to elect.’ The heirs at law, therefore, of Stephen Girard, were bound to elect between the interests given to them by his will, and the after acquired real estate, and were never en- titled at the same time to receive the one, and to hold the other.* They have received their legacies, and if they have thus made their election to take under the will, and are deter- mined to abide by it, this after purchased real estate is a part of the residue of the estate of the testator, and passes to ‘ the Mayor, Aldermen and Citizens of Philadelphia,’ subject to the trusts declared by him. Supposing it not too late for the heirs to retract the choice made by them, and that they should elect to take the land, then they must repay their legacies to the executors, who will pay the same over to the city as forming a part of the residu- ary personal estate of the testator. Every citizen of Philadelphia is interested in this question. R.” * The whole doctrine of election is thus distinctly stated in the very learned treatise of Mr. Chitty, on “The practice of the Law in all its Departments,” lately published in London, volume 1, part 1, page 357 : “ And notwithstanding this rule at law, that q/ifer-purchased real property will not pass, it will frequently be otherwise in equity , when the testator’s in- tention to the contrary must be collected from the terms of the will, and the heir would take advantage of the testator’s neglect to republish his will after his purchase, and yet attempt to take any benefit under the terms of the will ? and therefore, a devise and bequest by a testator, of ‘all my estate and effects both real and personal which I shall die possessed o/,’ was held in equity to extend to lands purchased after the date of his will ; and it was held that the heir taking benefits under the will, must elect either to give up his claim to such lands, or to give up his share of any benefit under the will.” In Pennsylvania “ there is no Court of Chancery. The Judges here are, therefore, to determine causes according to equity as well as the positive law ; equity being a part of the law.” Pollard v. Shaffer, 1 Dallas 213. ( 28 ) On the 22d July, 1833, the following communication was published in the same paper: u Girard’s Will. — A communication published in the Senti- nel on the 9th inst. over the signature “ R.” and remarking upon the argument in the Supreme Court upon the subject of the after purchased lands, contains this paragraph. ‘ Upon examining the respective cases and the opinion of the Court delivered by Chief Justice Gibson, it will be found, that only one single naked question of law was argued by counsel or decided by the court; and that was, whether real estate pur- chased subsequently to the date of his will by the testator passed by that instrument/ The conclusion drawn by the writer from the sources to which he referred for information, is in one feature, incorrect in point of fact . The question which he has discussed in the communication was distinctly raised by the counsel for the city, and present- ed to the consideration of the court. The counsel did contend that the doctrine of 4 election 5 applied to the claim of the heirs at law of Stephen Girard — and that they must be put to their choice between the legacies, or the real estate of which the said Mr. Girard had died intestate. — That they should be put to their election before they could be permitted to re- cover. The case of Thellusson v. Woodford, referred to by R., was cited to the court and urged in the argument — and when it was objected that this case was subsequent to the revolution, the elementary books giving an abstract were presented. Sug- den on Vendors, page 138, Sugden on Powers, page 380, where the whole doctrine is examined: 3d Johns. Chan. Rep. 553; 17th Sergeant & Rawle, 24; 1 Swanst. Ch. Rep. 425; 2d Vernon, 581 and 176, were cited in addition to the cases mentioned by R. The point therefore was put to the court and argued by the counsel. ( 29 ) It may be, that the court thought that the case stated did not bring up the point. That case was prepared and signed in Oc- tober, 1832 : the counsel who argued it were employed in March, 1833. They were confined to the case as stated — they believed that it might let them into the question — and therefore made the argument. What opinion the court entertained about it does not ap- pear. They did not deliver an opinion from the bench. The opinion of the Chief Justice has been sent to the reporter since the adjournment of that court — and though the result was pre- viously known and announced, the course of reasoning which led to it was not known; nor can it he ascertained certainly until the court shall again sit in bank, whether they did or did not regard the question of election as arising under that case — as they do not indicate any sentiment upon the subject. It is believed, however, the latter was their opinion — and if so, the question is still an open one. K.” And on the 25th of July, 1833, the following communica- tion appeared in the same paper: “ In your paper of the 9th inst. a communication was pub- lished over the signature ‘ R, 5 entitled, 6 Remarks upon the decision of the Supreme Court of Pennsylvania, in the suits brought by the heirs at law of the late Stephen Girard against the Mayor, Aldermen, and Citizens of Philadelphia.’ On Monday, the 22d instant, another communication appeared over the signature 6 K,’ in which, after quoting a passage from the 6 Remarks,’ it is said, 6 The conclusion drawn by the writer from the sources to which he referred for informa- tion is in one feature incorrect in point of fact .’ The passage quoted by ‘ K’ is as follows: 4 Upon examin- ing the respective cases and the opinion of the court delivered by Chief Justice Gibson, it will be found, that only one single naked question of law was argued by counsel, or decided by the court: and that was, whether real estate purchased subse- ( 30 ) quently to the date of his will, by a testator, passed by that instrument.’ From the statement made by ( K,’ it does appear, that the question of election was argued by the counsel for the city, and that is presumed to be the only feature in which the passage just quoted was incorrect in point of fact. The writer of 6 R’ was not present at the argument, nor did he hear that the question of election was argued, (and he is happy to be corrected on this point,) but it was the unquestionable understanding of the bar that only the one question was decided by the court, and this will be confirmed by a perusal of the cases stated, and the opinion of the court, which does not even allude to any other point. As 6 R’ does not entirely agree with ‘ K’ in some of his con- clusions, a few remarks may explain the difference between their views of a point so important to the citizens of Philadel- phia, and to the contemplated Girard College. On the 8th October, 1832, amicable actions of ejectment were entered in the Supreme Court of Pennsylvania, for the Eastern District, by the heirs at law of Stephen Girard, against < the Mayor, Aldermen, and Citizens of Philadelphia,’ to try the title to the real estate acquired by the testator subsequently to the date of his will and codicils. These actions included the after purchased real estate in the city and county of Philadel- phia, excepting of course a ground rent of $ 25 60, payable by Philip Smith. No action of ejectment, it is believed, was brought for the ‘ lots of ground in Schuylkill county, near Mount Carbon, on the river Schuylkill, intended for land- ings,’ for which the testator paid $4,500. The cases stated in these amicable actions were signed by the then law officer of the corporation, who however was not concerned in the argument. The present very respectable city solicitor, assisted by two able and learned counsel, conducted the argument before the Supreme Court. The cases were ( stated for the opinion of the court as upon a special verdict,’ and contained the following facts: That Stephen Girard died on the 26th December, 1831, t ( 31 ) seised in fee of certain real estate mentioned in the agreement to enter the action, purchased after the date of his will and codicils. That his will and codicils were duly made and executed, and were proved before the Register of Wills, on the 31st of December, 1831, which will and codicils were to be consider- ed as part of the case. That he left at his death the following named heirs at law, mentioning their names. That the defendants are in possession of all the said real estate, and that the deeds of the said property are to be con- sidered as part of the case. ' And then the question was submitted for the decision of the court, whether said real estate, or any part thereof, was de- vised by and passed under the said will and: codicils to the de- fendants, (the Mayor, Aldermen, and Citizens of Philadelphia,) or not. ‘ K’ says, 6 the counsel did contend, that the doctrine of 6 election’ applied to the claim of the heirs at law of Stephen Girard — and that they must be put to their choice between the legacies, or the real estate, of which the said Mr. Girard had died intestate — That they should he put to their election , be- fore they could he permitted to recover .’ They cited Thellusson v. Woodford, Sugden on Vendors, page 138, (American edition of 1S20,) Sugden on Powers, page 380, (American edition of 1823,) 3 John. Ch. Rep. 553; 17 Sergeant & Rawle, 24; 1 Swanston Ch. Reports, 425, (de- cided in 1818,) 2 Vernon, 581 and 176. The case of Churchman v. Ireland, 1 Russell & Mylne, 250, decided on the 20th December, 1831, is a very important de- cision, as it shows the carrying out of the doctrine of election in England, to its full extent, and overrules the case of Back v. Kett, 1 Jacob, 534, decided in 1822, by Sir Thomas Plu- mer, which doubted in some measure the doctrine of Lord Erskine in Thellusson v. Woodford. In addition to the cases cited from our own reports by the counsel for the city, may be added Adlum v. Yard, 1 Rawle ( 32 ) 171, Heron v. Hoffner, 3 Rawle, 393, 396, and Allen v. Getz, 2 Pennsylvania Reports, 310, 322, which are conclusive on the point, that the doctrine of election in its fullest extent is the law of our state. The doctrine pressed by the counsel for the city, was that the heirs < should be put to their election , before they could be permitted to recover .’ It is perhaps not necessary to ex- amine how far such a question could be made on the facts ap- pearing in the case stated, and on the question presented for the decision of the court, nor in what manner our Supreme Court would exercise the powers of a Court of Chancery, to compel heirs at law to make an election between the benefits given them by the will, and the after acquired real estate de- scended to them, as it was clear , that the heirs had elected to take under the will , for they had demanded and had re- ceived payment of their legacies from the Executors of Mr. Girard. If, then, it had been inserted in the cases stated, 4 that the above named heirs at law are the same legatees mentioned in the will of the testator, and that the said legatees did on the day of demand and receive payment of their re- spective legacies from the executors of the said testator, de- ducting the Collateral Inheritance Tax,’ and the question for the decision of the court had been modified accordingly, then the point that the heirs having elected to take under the will, cannot take the after-purchased real estate, contrary to the ex- press intention of their Testator, would have been distinctly raised, and must have been decided by the Supreme Court. As there were amicable actions instituted, to try the title of the parties to this real estate, any facts necessary to raise an important question of law, would, according to the usual prac- tice, have been inserted by consent in the cases stated. If, however, the defendants had refused, the court would have so amended the cases, as to meet the real justice of the case, or if the facts alleged were disputed, would have had them found through the intervention of a jury. This, however, not having been done, the Supreme Court ( 33 ) no doubt considered themselves bound to decide only the naked question, ‘ whether real estate purchased subsequently to the date of his will by a Testator passed by that instrument/ and this is the only point discussed by the Chief Justice, and de- cided by the court. The reason for allowing so necessary an amendment of the case for the defendants, is obvious, and always weighs much with the court in granting new trials. For ‘the defend- ant in the first ejectment becomes the plaintiff in the second, and is obliged to give evidence of his own title, instead of merely rebutting the claim set up by his opponent ; and as this is a point of material consequence to him, the courts rather lean to new trials on behalf of defendants in ejectments, espe- cially on the footing of surprise. 7 2 Troubat and Haly’s Prac- tice, 246. The point, therefore, not having been decided by th<8 Su- preme Court, it is submitted that it is not necessary to wait to ascertain that fact until ‘ the* court shall again sit in bank, 7 which will not be until next December. It would appear ‘that the opinion of the Chief Justice has been sent to the reporter since the adjournment of that court — and though the result was previously known and announced, the course of reasoning which led to it was not known 7 — and yet with a strange haste, the Board of Commissioners of the Girard Estate, on the 9th of April last, ten days only after the result was known and announced, delivered possession not only of the real estate recovered in the ejectments, but also of the landings in Schuylkill county, and of the ground rent of $ 25 60, and paid over the balance in hands on account of that estate. The question is now before the public, and it must be de- cided by our highest judicial tribunal, and the sooner this is done, the better it will be for all the parties interested in its event. R. 77 It is therefore clear, under any aspect, whether Stephen E ( 34 ) Girard died with or without “ heirs or any known kindred ,” that those claiming as heirs at law, and the Commonwealth of Pennsylvania, having elected to take the legacies and devises given to them by the testator, all their rights in the after-pur- chased real estate, are vested in “ the Mayor, Aldermen and Citizens of Philadelphia,” and in no other person or body cor- porate : It being thus ascertained, that the real estate purchased by Mr. Girard, after the date of his will and codicils, passes as a part of his residuary estate, to “ The Mayor, Aldermen, and Citizens of Philadelphia,” it may not be entirely useless to inquire what was its particular destination, by our venerable benefactor. This real estate was never to be sold or alienated by the said “ The Mayor, Aldermen, and Citizens of Philadelphia, or their successors,” but the same was for ever to “ be let from time to time to good tenants at yearly or other rents,” &c. and the rents, issues, and profits of the same, with those of his other roal estate in Pennsylvania, were to be applied to keep- ing the real estate of the city and liberties of Philadelphia in repair, and improving the same, and “ the nett residue (after paying the several annuities thereinbefore provided for) ap- plied to the same uses as are therein declared of and concern- ing the residue of his personal estate.” In case the income arising from the remainder of the $2,000,000 — appointed by the testator to the Girard College, should prove insufficient — “ then,” he says, “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 build- ings as the said square of ground shall be adequate to, shall be taken from the final residuary fund, hereinafter expressly re- ferred 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.” In the 24th clause of his will the testator says, “ But if the said city shall knowingly and wilfully violate any of the con- ( 35 ) ditions 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 for ever he reserved and applied to maintain the aforesaid College , in the manner specified in the last para- graph of the 2lst clause of this will. 9 Mr. Girard then declares, that all the bequests and devises of the residue of his estate, “ to the Mayor, Aldermen, and Citizens of Philadelphia, are made upon the following express conditions: that is to say: First , that none of the monies , prmcipal , interest, dividends , or rents arising from the said residuary devise and bequest , shall at any time he applied to any other purpose or purposes whatever , than those herein mentioned and appointed From these provisions, it is evident, that the whole of this real estate , situate in the city and county of Philadelphia, forms a component part of the Girard College Fund, and is the property in fact of the “ poor white male orphans,” who are the primary objects of the testator’s bounty, and that under no circumstances, even of forfeiture by the city, can it be divert- ed from this laudable and charitable object. , "> '* • UNIVERSITY OF ILLINOIS-URBANA KFP512 A545X1833 C001 DECISION IN THE EJECTMENTS BROUGHT BY TH