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Legacy Of Stephen Girard
Wills are forever— or so we like to think. But what happens when they offend the changing public interest? Consider the curious
June/July 1978 | Volume 29, Issue 4
“The question… finally narrows down, then, to the contention … that the trust for the orphanage or college created in Girard’s will is not a private trust, but that it comes under the principle of ‘State action’ within the compass of the Fourteenth Amendment because of the fact that it is the City of Philadelphia which is the trustee appointed by Girard and which has ever since administered the trust.”
But, the court said, the engines of the “State” were in no way brought into play because the college was self-supporting and privately operated. The city was simply a trustee like any other, with no more or less power than any private person, acting as a trustee, would have—and like any other trustee, the Board of City Trusts was obliged to carry out Girard’s will.
The petitioners appealed again, this time to the United States Supreme Court, and in April, 1957, they won their major point. The Supreme Court ruled that “The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit [the boys] to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment.” The judgment of the Supreme Court of Pennsylvania was reversed.
Many lawyers believed this decision was just so much logicchopping to accommodate prevalent current opinion. A lawyer for the Board of City Trusts said “there is no longer the same certainty at law that once there was—no certainty in anything, for that matter. Nobody can say what the United States Supreme Court will do at any time. Pragmatism seems to be the order of the day.” He believed that racial segregation was an issue of the day, and he did not believe there should be racial segregation. But he did not believe that “State action” was truly involved in this case, whereas something else was: the right of a man to leave his money to whomever he wished—within the limits of the law. If the Girard will could be upset on some pretext, however popular at the moment, then anyone’s will might be overturned on some other pretext. Civil libertarians, however, rejoiced at the ruling, reading into it the principle that racial discrimination cannot be condoned, wherever it might be found.
If logic-chopping could be seen in the Supreme Court decision, the same thing might be said of the next series of events. Since the Supreme Court had not ordered the two black orphans admitted forthwith to Girard College, but had only required “proceedings not inconsistent” with its opinion, the Philadelphia orphans court responded by dismissing the Board of City Trusts from its trusteeship, and appointed thirteen private citizens, who held no city or state positions, to be the successor trustees of the Girard estate. The orphans court relied on the legal principle, already announced in an earlier contest of the Girard will, that a trust cannot fail for want of a trustee; if the city could not legally administer the trust, the thirteen private citizens certainly could. The successor trustees could refuse to admit the black orphans; in fact, they were required to do so if they were to be faithful to Girard’s will.
An appeal was again taken to the Pennsylvania supreme court, this time protesting the orphans court appointment of the successor trustees, and again—in January, 1958—the court ruled against the black orphans and their lawyers.
“The appellants’ efforts to make a ‘segregation’ issue out of Stephen Girard’s private charity … serves only to confuse and obscure the real issue involved as to the right of a private individual to bequeath his property for a lawful charitable use and have his testamentary disposition judicially respected and enforced,” said the Pennsylvania supreme court, in ruling that Girard’s college was a private charity, not a public one; that it was capable of being lawfully administered by private trustees; that the orphans court action was legal and proper, and not inconsistent with the United States Supreme Court ruling. Furthermore, the court added, no one not named as a beneficiary in a will has any constitutional right, or any other right, to share in the bequest. Therefore, no one who was not a poor, male, white orphan of Philadelphia, Pennsylvania, New York, or New Orleans was being denied anything to which he had any legal right.
An appeal was taken from this ruling to the United States Supreme Court, but this time, to the dismay of civil libertarians, but to the joy of those who may here be called traditionalists, the Supreme Court refused to review the case. So it seemed that the latest series of assaults on the Girard will had ultimately failed, and that the will remained “immovable as a rock.”
Nine years later, however, a new lever was found and was applied to the rock. In the meantime, the United States Supreme Court had heard another case, Evans v. Newtown . In Evans, a parcel of land had been left to the mayor and city council of Macon, Georgia, to be used as a public park for whites only, under the control of a white Board of Managers. The city, however, desegregated the park—and the Board of Managers sued the city and the trustees, asking for the appointment of private trustees to enforce the racial limitations of the will. A Georgia court accepted the city’s resignation as trustee, and appointed three new private trustees. The Georgia supreme court upheld this decision, and the United States Supreme Court then ruled against the Georgia courts.