Concurring Opinion by
Mr. Justice Bell:Stephen Girard left (most of) his enormous estate to establish a perpetual orphan home and college for “poor white male orphans”. I fully agree with everything that Chief Justice Stern has said in his exceptionally able opinion. However, since appellants, in order to convert a private charitable orphanage establishment into a publicly owned and publicly sustained public school, i.e., “a segregation case”, have distorted the plain language and the clear meaning of Girard’s will, as well as the principles and legal effect of numerous authorities, I deem it wise to further analyze and to refute more comprehensively and in greater detail their conjectural, as well as their plausible, but unsound contentions.
The two principal and very important questions raised by the record and the six voluminous briefs filed *571in this appeal are: What was Girard’s dominant intent and can it be lawfully carried out?
Two young colored male orphans, between the ages of six and ten years, sought admission to Girard College. There are approximately .1137 poor white male orphans housed, fed, clothed, maintained, instructed and reared each year in Girard College and the number of such applicants always has exceeded the capacity of the College. The Orphans’ Court of Philadelphia County in two very able opinions, one by Judge Bolger and the other by Judge Lefever, dismissed the applications because the admission of these boys was not authorized under Girard’s will.
Girard’s Will
The will of Stephen Girard, dated February 16, 1830, has become a national landmark in the history of Trusts, and Girard College, which was the heart and soul of his thirty-two page will, has become an admired institution throughout our Country.
Stephen Girard prepared his will with the utmost care. He was an exceptionally able, intelligent man, and he had the advice of one of the leading lawyers of his time. The evidence shows that they shut themselves in a room and discussed the proposed will and its contents for five weeks. In his will Girard specified in lengthy and minute detail how he wished the College to be built and maintained, and the purpose to which it was to be devoted. He said as clearly as the English language will permit that this was to be a College and a Home for “poor white male orphans” who were to be admitted between the ages of six and ten and remain until they respectively arrive at between fourteen and eighteen years of age. He prescribed their food, their dress, their educators, their instruction in various branches of education, their se*572elusion and restraint from the rest of the world, as well as from their parents, clergymen and priests, and he specifically said that the provisions for the College were “my primary object”.
If any language is clear and plain and unmistakable as to who should be admitted to the College, Girard’s language is clear and plain and unmistakable. He was creating an “orphanage establishment”, a home and college not for poor girls and boys, not for orphan boys, not for red or brown or yellow or black orphans, not even for all orphans — he created in the clearest imaginable language an orphan home and college for “poor white male orphans”. ■
Girard first made a gift to the Pennsylvania Hospital of $30,000. to pay to his “black” woman, Hannah, to whom by his will he gave her freedom, the sum of $200. a year, and the balance to be used for the sick in the Hospital. He then gave the sum of $20,000. to the Pennsylvania Institution for the Deaf and Dumb for the use of that Institution. He then gave $10,000. to The Orphan Asylum of Philadelphia for the use of that Institution. He did not limit these gifts to white people. He then gave $10,000. to the Comptrollers of the Public Schools for the City and County of Philadelphia for the use of the schools upon the Lancaster system. He then bequeathed to the Mayor, Aldermen and Citizens of Philadelphia the sum of $10,000. to distribute the income among poor white housekeepers and roomkeepers of good character residing in the City of Philadelphia. He then gave $10,000. to the Society for the relief of poor and distressed masters of ships, their, widows and children. He then gave $20,000. to the Masonic Loan in trust for the Grand Lodge of Pennsylvania. He then gave $6,000. for the purchase of land, one-part thereof for poor white male children and the other part for poor white female c.hil*573dren of Passyunk Township. He then made very small pecuniary gifts and devises to members of his family and friends. He then made a gift to his captains and to those who were bound to him by indenture as apprentices or servants. He then devised one-third of his real and personal estate near Washita in the State of Louisiana to the Corporation of the City of New Orleans, for such uses and purposes as the Corporation may consider most likely to promote the health and general prosperity of the inhabitants of the City of New Orleans.
In Paragraph XX he said: “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 development 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 institution,* a better education as well as a more comfortable maintenance than they usually receive from the application of the public funds: And whereas, together with the object just adverted to, I have sincerely at heart the welfare of the city of Philadelphia, and, as a part of it, am desirous to improve the neighborhood 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 interior: Now, I do give devise and bequeath all the residue and remainder of my real and personal estate of every sort and kind and wheresoever situate (the real estate in Pennsylvania charged as aforesaid) unto ‘The Mayor, Aldermen and citizens of Philadelphia their sucees*574sors and assigns in trust to and for the several uses intents and purposes hereinafter mentioned . . .* ”
He provided in the remainder of Paragraph XX that the rents, issues and profits should be used to keep that part of the City constantly in good repair.
We then come to the most pertinent provision of the will, Paragraph XXI. In this paragraph testator gave $2,000,000 of the residue of his personal estate “in trust ... [to erect] as soon as practicably may be, in the centre of my square of ground between High and Chestnut streets and Eleventh and Twelfth streets,* in the city of Philadelphia (which square of ground I hereby devote for the purposes hereinafter stated, and for no other, forever) a permanent College, with suitable out-buildings, sufficiently spacious for the residence and accommodation of at least three hundred scholars, and the requisite teachers and other persons necessary in such an institution as I direct to be established; . . .”. He provided in very minute detail (through seven pages) the design, the material and the manner in Avhich the buildings were to be erected. When the college and appurtenances shall have been constructed and properly furnished, he directed that the balance of $2,000,000., and subsequently the remainder of his residuary personal estate shall be applied to maintain the said college according to his directions. “3.** As many poor white male 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; and from time to time as there may be vacancies, or as in* *575creased ability from income may warrant, others shall be introduced.”
In Paragraph XXII of his will Girard gave $500,-000. for the repair and improvement of the streets of Philadelphia fronting on the River Delaware and of certain buildings therein, and for the widening and paving of Water Street.
In Paragraph XXIII of his will he gave to the Commonwealth of Pennsylvania $300,000. for internal improvement by canal navigation.
In Paragraph XXIV of his will Girard provided that the remainder of his residuary personal estate shall be applied:
“1. To the further improvement and maintenance of the aforesaid College as, directed in the last paragraph of the XXIst clause of this will.
“2. To enable the Corporation of the City of Philadelphia to provide more effectually than they now do, for the security of the persons and property of the inhabitants of the said city, by a competent police, ....
“3. To enable the said corporation to improve the city property, and the general appearance of the city itself; and, in effect to diminish the burden of taxation, now most oppressive especially on those, who are the least able to bear it ... .
“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 for ever — after providing for the College as hereinbefore directed, as my primary object
Girard then provided that if the City knowingly and wilfully violated any of his testamentary conditions, he bequeathed the said remainder to the Com*576monwealth of Pennsylvania for the purposes of internal navigation “excepting, however, the rents issues and profits of my real estate in the City and County of Philadelphia, which shall forever be reserved and applied to maintain the aforesaid College, in the manner specified in the last paragraph of the XXIst clause of this will”.
Testator then provided that if the Commonwealth failed to apply his bequests to the uses and purposes he mentioned, he devised the remainder to the United States of America for the purpose of internal navigation and no other — “the rents aforesaid always excepted and reserved for the College as aforesaid.” First and foremost was always the College!
It is impossible for any unbiased person to read Girard’s will without being convinced that his specific, as well as his primary and dominant and paramount intent, was to provide a college and orphanage home for “poor white male orphans”. Girard not only specifically said so twice in his residuary trust provisions or bequests, but in all gifts or provisions pertaining to his residuary estate, the College was placed above everything else as the primary object of his heart and bounty. The language describing and defining the class of beneficiaries, namely, “poor white male orphans” is so clear, plain, certain, unambiguous and unmistakable,' that it seenis incredible that it is now contended that “white” does not mean “white” — it means white and black and yellow and brown.
Before discussing the many cases which for a period of over 100. years have sustained Girard’s- testamentary orphanage establishment for-poor-white-male orphans, we shall dispose of those contentions of 'appellant which are so far-fetched ás to be entirely .devoid of merit..... . ' :
*577Appellants contend that the City of Philadelphia was the primary object of testator’s bounty. A study, nay a reading, of Girard’s will quickly demonstrates that there is absolutely nothing in the will to support this theory, and that it is completely contrary to what Girard specifically and repeatedly said therein.
Appellants contend that Girard was interested in and wanted to aid the City of Philadelphia and the poor people of Philadelphia and therefore he must have wanted white and black orphans and all poor people of Philadelphia admitted to this orphanage establishment. Girard in several paragraphs of his will not only said he was interested in and wanted to aid the City of Philadelphia and the poor people thereof, but he specifically did exactly that in a number of bequests in his will Avhich have been hereinabove recited. Of course it is a non sequitor to say that because he Avanted to aid the City and the poor, he must therefore have wanted all orphans, or black and white orphans, or all poor people of Philadelphia admitted to the college, when he specifically saicl something entirely different.
Perhaps the most far-fetched and fantastic contention which was vigorously urged upon us was that if Girard had foreseen the Civil War and the subsequent Constitutional Amendments, particularly the Fourteenth Amendment, and certain recent decisions of the Supreme Court of the United States, and had lived in these modern times when colors and races intermingle and fraternize, he would have desired Girard College to be a college for all poor male orphans (or for all the poor people of Philadelphia) without distinction for race, creed or color.* These conjectures *578or contentions are merely wishful thinking or fantasies; none of them have any sound basis or merit whatsoever. Respected men and women, as well as eccentric people, sometimes make sound and sometimes eccentric wills. Courts, heirs and excluded beneficiaries often wish (1) they could change or delete clear and plain and specific language, or (2) rewrite a will to expand or change the testator’s bounty in order to conform to what they believe would be fairer or wiser, or to conform to what they think the testator would have said if he had foreseen the existing facts and circumstances. But that is not and never has been the law of Pennsylvania!
“. . . it is and always has been the law of Pennsylvania that every individual may leave his property by will to any person, or to any charity, or for any lawful purpose he desires, unless he lacked mental capacity, or the will was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion. While it is difficult for many people to understand how or why a man is permitted to make a strange or unusual or an eccentric bequest, especially if he has children or close relatives living, we must remember that under the law of Pennsylvania, ‘ “a man’s prejudices are a part of his liberty. He has a right to the control of his property while living, and may bestow it as he sees fit” at his death: McCown v. Fraser, 327 Pa. 561, 192 A. 674; Cauffman v. Long, 82 Pa. 72.’ ”: Johnson Will, 370 Pa. 125, 87 A. 2d 188.
In Cannistra Estate, 384 Pa. 605, 121 A. 2d 157,' this Court said: “No rule regarding wills is more settled than the great General Rule that' the'testator’s intent, if it is hot unlawful, must prevail!" This is the reason why so many cases continually proclaim that. the.pole ..star .in the construction, of every will is. *579the testator’s intent. Moreover, ‘The testator’s intention must be ascertained from the language and scheme of his will: “it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words”: Britt Estate, 389 Pa. [450, 454, 87 A. 2d 243]’: Sowers Estate, 383 Pa. 566, 119 A. 2d 60....
“The language of Mr. Justice Steaexe, speaking for the Court in Borsch Estate, 362 Pa. 581, 67 A. 2d 119, is particularly appropriate: ‘We said, in Stoffel’s Estate, 295 Pa. 248, 145 A. 70, P. 251: “One possessed of testamentary capacity, who makes a will in Pennsylvania, may die with the justifiable conviction that the courts will see to it that his dispositions, legally made, are not departed from by those charged with the duty of performance, . . .” ’ This always has been and unless changed or modified by the legislature, should continue to be the wise salutary policy of the Courts of Pennsylvania regarding Avills.”
Gifts to charity, outright or in trust, are favored by the laAV of Pennsylvania: Daly’s Estate, 208 Pa. 58, 66, 57 A. 180; Jordan’s Estate, 329 Pa. 427, 429, 197 A. 150; McKee Estate, 378 Pa. 607, 108 A. 2d 214. We have sustained charitable trusts for every conceivable charity — sectarian churches, hospitals and homes of all denominations, charitable gifts for denominational or sectarian ministers, for priests, for free masons, for aged couples, for aged Israelites, for AvidoAVS, for all classes of society, and even for agnostic societies. Gifts to priATate schools and colleges haAre been sustained as valid and constitutional. Cf. Pierce v. Hill Military Academy, 268 U. S. 510; Craig Estate, 356 Pa. 564, 52 A. 2d 650; Donohugh’s Appeal, 86 Pa. 306; Hill School Tax Exemption Case, *580370 Pa. 21, 87 A. 2d 259; Philadelphia v. Women’s Christian Ass’n, 125 Pa. 572, 17 A. 475; Episcopal Academy v. Phila., 150 Pa. 565, 25 A. 55.
In Craig Estate, 356 Pa., supra, testatrix’s gift of $25,000. to the Trustees of the Central Presbyterian Church, to be retained as a permanent fund and the income used in keeping the church properties in order and for such other church purposes as the trustees may direct, was sustained even though the church dissolved and a new or substituted trustee was appointed by the Orphans’ Court. The Court said: “Where a gift is made directly to a charitable or religious body for purposes which are within the powers of the corporation, it is a trustee for itself, and holds for the purposes specified in the gift. It is, however, a trust in the sense that the fund does not merge into the general property of the corporation but remains under the jurisdiction of a court of Equity. Equity has power to define the trust and to restrain any violation of it. See Wilson v. Board of City Trusts, 324 Pa. 545. . . .
“In Pennsylvania the control and disposition of church property is subject to the rules and regulations of the religious body to which the church belongs: Act of June 20, 1935, P. L. 353, 10 PS 81; Canovaro v. Brothers of St. Augustine, 326 Pa. 76; but both that act and the decision cited recognize that donations and gifts in trusts lawfully established by wills or reserved in writing must be preserved and given due effect; an all-sufficient reason being given in Brown v. Hummell, 6 Pa. 86, 95, namely, that the hand of private benevolence be not stayed and checked by the conviction that the will of the donor may not be preserved.”
In Pierce v. Hill Military Academy, 268 U. S., supra, the Court said (page 514) : “This Court, like the *581court below, must know that the true purpose of the act, as well as its plain and intended practical effect, was the destruction of private primary, preparatory and parochial schools; for they certainly could not survive the denial of the right of parents to have their children thus educated in the primary grades. Such drastic and extraordinary legislation is a portentous innovation in America. Private and religious schools have existed in this country from the earliest times. Indeed, the public or common school, as Ave knoAV it today, dates only from 1840. For generations all Americans — including those who fought for liberty and independence in the eighteenth century, and Avho drafted the Declaration of Independence, the Northwest Ordinance of 1787, and the Constitution of the United States — Avere educated in private or religious schools, and mostly the latter. Perhaps no institution is older or a more intimate part of our colonial and national life than religious schools and colleges, both Catholic and Protestant. The private and religious schools have been the laboratories in which educational methods have been worked out and pedagogic progress accomplished from the very beginning of our history. Out of them have developed, or to them is due, our greatest colleges and universities, the most important of them to this day being private or religious institutions. In more recent times commonwealth colleges and universities have groAvn up. The legislation before the court manifestly carries within itself a threat, not merely to the priATate elementary and preparatory schools which it uoav practically proscribes, but to eArery private or religious preparatory school and every priA’ate or religious college or university in the land.”
The right to dispose by Avill of one’s property is one of the most treasured rights of an American citizen, *582and if the will does not violate the law, not even the legislature can pervert or destroy a man’s validly executed will: Brown v. Hummel, 6 Pa. 86, 95.*
Appellants argue that Girard’s will discriminates against negroes. It could just as readily be argued, and it would be just as irrelevant, that it similarly discriminates against all girls — white, red, yellow, brown and black — against white boys who are not orphans,— against white boys who are not poor, — as well as against all poor boys who are not born in Philadelphia. The fact that a testator prefers to leave his money by will, or limit and restrict his testamentary bequests to some of his children, or to some of his relatives instead of to all of his children, or all of his relatives, or to a church or charity instead of to his relatives, or for people suffering with certain diseases, or for aged Protestants, or “for the poor of the German Lutheran Congregation”, or for the “Roman Catholic Church of Saint Coleman for its own uses and purposes”, or to a named Catholic priest or church for the poor of that parish, or for a named sectarian Orphanage, or for a sectarian or denominational church or home or charity or for any charitable purpose, does not constitute discrimination in its legal meaning. In Wharton Appeal, 373 Pa. 360, 369, 96 A. 2d 104, the Court said: “A testator . . . may exclude any one whom he wishes, except a surviving spouse. The reason for the exclusion need not be stated by testator and will not be passed upon by a court.”
It is indisputable that nearly every charitable bequest excludes more than half of the public, but it *583does not for that reason cease to be a valid charitable gift, or be unconstitutional, or become the property of the State or Municipality in its governmental capacity.
A Century of Interpretation By Parties and Courts
Not only is Girard’s will crystal clear that he wished, meant, said and intended that only “poor white male orphans” should be admitted to Girard College, but that very interpretation and construction has been placed upon this testamentary provision of his will for over 100 years (1) by those who have administered and managed the trust estate for Girard College (which now amounts to approximately $98,000,000.), and (2) by the Supreme Court of the United States, and (3) by the Supreme Court of Pennsylvania, and (4) by the lower Courts of this Commonwealth, and (5) by the present appellant — the City of Philadelphia.
It is very important to note that this is a privately founded and privately endowed charity — an “orphanage establishment”, a college and home for orphans— poor white male orphans. Girard College is not and never was a government owned piece of real estate or building or public college; it was not constructed and it is not and never was maintained by the State, the City or its agents from tax money or public funds, nor has the public as such ever been admitted. Girard College was built on land owned by Girard, with Girard’s own money, and every dollar of its construction, maintenance and upkeep, and the salaries or wages of its teachers and employes, and the food, clothing, lodging maintenance and education of its boys have been paid by and from the private funds of a private citizen, Stephen Girard. We repeat, neither the City of Philadelphia nor the Commonwealth of Pennsylvania nor the Government of the United States *584have ever paid or contributed one cent toward the construction or maintenance of the College, or the salaries of its teachers, or the feeding, clothing, maintenance or education of any of the orphan boys who live and study therein.
Perhaps equally important, Girard College was never administered by the City in its governmental or sovereign capacity. It was administered originally by the Mayor, Aldermen and Councils, and subsequently by an independent agency created by the Legislature solely in the capacity of a fiduciary or trustee governed, hound and limited by the directions and provisions of Girard’s Will.*
Today neither the Mayor of Philadelphia nor any of the departments under him, nor City Council administers, manages or operates the orphanage known as Girard College in any capacity whatsoever. Today under the Philadelphia Home Rule Charter adopted April 17, 1951, effective January 7, 1952, neither Girard College nor its Board of Directors of City trusts are included within the City government; on the contrary, the Board of Directors of City Trusts, which administers Girard’s testamentary trust known as Girard College, is specifically excluded from the City Charter. Section A-100 of the Philadelphia Home Rule Charter provides: “Except as otherwise specifically provided, this charter shall not apply to the Board of Directors of City Trusts and to any institutions operated by it.” And the annotation thereto states: “4. The Board of City Trusts is generally not dealt with by the Charter to protect its special status as a trustee.”
*585The Girard Trust is administered and managed by a Board of Directors of City Trusts which is composed of 14 members: Five leading business men, four leading lawyers, two leading bankers, a doctor, and ex-officio, the Mayor of Philadelphia and the President of City Council. The Board of Directors is not selected or elected or appointed by the Mayor or by City Council or by the citizens of Philadelphia — it is selected and appointed by the Judges of the Courts of Common Pleas of Philadelphia County and is, we repeat, a separate, independent entity which was specifically excluded from the Philadelphia City Charter.
When the City of Philadelphia administered Girard College, it administered it in the capacity, not of a government or sovereign dealing as it wished with its own public property, but solely as a fiduciary trustee to carry out the directions of Girard’s will by which it was limited and bound. It was compelled under Paragraph XXIV of Girard’s will to keep an account of his estate separate and distinct from all other monies and accounts of the City; it had to furnish annually to the Legislature an account so that a Committee of the Legislature could examine it and see that his estate was applied only to the purposes set forth in his will and that his “intentions had been fully complied with”. The reason for Girard’s appointment of the City as trustee is obvious. When Girard made Ms will in 1830 he naturally desired a perpetual trustee to carry out the wonderful and perpetual charitable orphanage and college he so earnestly desired and so minutely prescribed. Sitting in Girard’s armchair, as we must do, to look at the attendant and surrounding circumstances,* Girard, an outstanding banker, must *586have known that there was not a single trust, company in the City of Philadelphia** to act in the capacity of a perpetual trustee. That is, we repeat, the obvious reason why the City was appointed trustee.
A municipality, if it is authorized to do so by the Legislature, can act (1) in its sovereign or public or governmental capacity; (2) in its private or proprietary capacity, in which event it is considered a separate entity acting for its own private purposes and not as a subdivision of the State: Cf. White Oak Borough Authority Appeal, 372 Pa. 424, 93 A. 2d 437; Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557; Western Saving Fund Society v. Philadelphia, 31 Pa. 175; Moore v. Luzerne County, 262 Pa. 216, 105 A. 94; Bell v. Pittsburgh, 297 Pa. 185, 146 A. 567; Madden v. Borough of Mt. Union, 322 Pa. 109, 185 A. 275; Carlisle Gas & Water Co. v. Carlisle Borough, 218 Pa. 554, 67 A. 844; Commonwealth v. P. R. T. Co., 287 Pa. 70, 134 A. 452; Versailles Township Authority v. McKeesport, 171 Pa. Superior Ct. 377, 90 A. 2d 581; or (3) in a fiduciary (trustee) capacity, in Avhich event it, like any indi*587vidual or corporate trustee, is bound by and has only the powers and authority given it by the will or deed of trust: Vidal et al. v. Girard’s Executors, 43 U. S. 127; Girard v. Philadelphia, 74 U. S. 1; Philadelphia v. The Heirs of Stephen Girard, 45 Pa. 9; Philadelphia v. Fox, 61 Pa. 369; Philadelphia v. Elliott, 3 Rawle 169.
Before the College was constructed, Girard’s testamentary trust for the College was vigorously attached by Ms heirs, but toas sustained as a valid charitable trust by the Supreme Court of the United States in Vidal el al. v. Girard’s Executors, 43 U. S. 127. The heirs were represented by Daniel Webster and other leading lawyers of that day. That case arose by a bill in equity to set aside Girard’s testamentary trust for the College. Mr. Justice Btgky said, inter alia: “The persons who are to receive the benefits of the institution he declared to be, ‘poor white male orphans between the ages of six and ten years; . . .’. The principal questions, to which the arguments at the bar have been mainly addressed, are; First, whether the corporation of the city of Philadelphia is capable of taking the bequest of the real and personal estate for the erection and support of a college upon the trusts and for the uses designated in the will: Secondly, whether these uses are charitable uses valid in their nature and capable of being carried into effect consistently with the laws of Pennsylvania: . . . . . . . where the corporation has a legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same manner and to the same effect as a private person may do. It is true that, if the trust be repugnant to, or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it. But that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but *588it will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction, to enforce and perfect the objects of the trust. ... In such a case, the trust itself being good, will be executed by and under the authority of a court of equity. Neither is there any positive objection in point of law to a corporation taking property upon a trust not strictly within the scope of the direct purposes of its institution, but collateral to them; nay, for the benefit of a stranger or of another corporation. . . . We think, then, that the charter of the city does invest the corporation with powers and rights to take property upon trust for charitable purposes, which are not otherwise obnoxious to legal animadversion; and, therefore, the objection that it is incompetent to take or administer a trust is unfounded in principle or authority, under the law of Pennsylvania. . . .
“We are, then, led directly to the consideration of the question which has been so elaborately argued at the bar, as to the validity of the trusts for the erection of the college, according to the requirements and regulations of the will of the testator. That the trusts are of an eleemosynary nature, and charitable uses in a judicial sense, we entertain no doubt. Not only are charities for the maintenance and relief of the poor, sick, and impotent, charities in the sense of the common law, but also donations given for the establishment of colleges, schools, and seminaries of learning, and especially such as are for the education of orphans and poor scholars. . . .
“Several objections have been taken to the present bequest to extract it from the reach of these decisions. In the first place, that the corporation of the city is incapable by law of taking the donation for such trusts. This objection has been already sufficiently considered. . . .
*589“This objection is that the foundation of the college upon the principles and exclusions prescribed by the testator, is derogatory and hostile to the Christian religion, and so is void, as being against the common law and public policy of Pennsylvania; and this for two reasons: First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same: and Secondly, because it limits the instruction to be given to the scholars to pure morality, and general benevolence, and a love of truth, sobriety, and industry, thereby excluding, by implication, all instruction in the Christian religion.”
In Girard v. Philadelphia, 74 U. S. 1 — which was an action of ejectment where the issue was the meaning and validity of Girard’s will — -the Supreme Court of the United States again sustained the validity of Girard’s testamentary trust for the orphanage college and again pointed out that the College was the primary object of his bounty. The Court said, inter alia: “. . . the attempt to restrain the alienation of the realty, being inoperative, could not affect the validity of the devise,* and that the income of the whole residuary was devoted to the three objects stated by the testator, the college being the ‘primary object/ and that so long as any portion of this residuary fund should be found necessary for ‘its improvement and maintenance,’ on the plan and to the extent declared in the will, the second and third objects could claim nothing. . . .
“. . . Now, it is admitted (for it has been so decided), that till February, 1854, the corporation was *590vested with a complete title to the whole residue of the estate of Stephen Girard, subject to these charitable trusts, and consequently, at that date, his heirs at law had no right, title, or interest whatsoever in the same. But the bill alleges that the act of the legislature of that date (commonly called the ‘Consolidation Act’), which purports to be a supplement to the original act incorporating the city, has either dissolved or destroyed the identity of the original corporation, and it is consequently unable any longer to administer the trust. Now, if this were true, the only consequence iwould be, not that the charities or trust should fail, but that the chancellor should substitute another trustee. . . .
“Now, it cannot be pretended that the legislature had not the power to appoint another trustee if the act had dissolved the corporation, or to continue the rights, duties, trusts, &c., in the enlarged corporation. It has done so, and has given the widest powers to the trustee to administer the trusts and charities according to the intent of the testator, as declared in his will.
“The legislature may alter, modify, or even annul the franchises of a public municipal corporation,* al*591though it may not impose burdens on it without its consent. In this case the corporation has assented to accept the changes, assume the burdens, and perform the duties imposed upon it; and it is difficult to conceive how they can have forfeited their right to the charities which the law makes it their duty to administer. The objects of the testator’s charity remain the same, while the city, large or small, exists; the trust is an existing and valid one, the trustee is vested by law with the estate, and the fullest power and authority to execute the trust.
“. . . it cannot admit of a doubt that, where there is a valid devise to a corporation, in trust for charitable purposes, unaffected by any question as to its validity because of superstition, the sovereign may interfere to enforce the execution of the trusts, either by changing the administrator, if the corporation be dissolved, or, if not, by modifying or enlarging its franchises, provided the trust be not perverted, and no wrong done to the beneficiaries. Where the trustee is a corporation, no modification of its franchises, or change in its name, while its identity remains, can affect its rights to hold property devised to it for any purpose. Nor can a valid vested estate, in trust, lapse or become forfeited by any misconduct in the trustee, or inability in the corporation to execute it, if such existed. Charity never fails; and it is the right, as well as the duty of the sovereign, by its courts and public officers, as also by legislation (if needed), to have the charities properly administered.
“Now, there is no complaint here that the charity, so far as regards the primary and great object of the testator, is not properly administered; and it does not *592appear that there now is, or ever will be, any residue to apply to the secondary objects. . . .
“1st. The residue of the estate of Stephen Girard, at the time of his death, was, by his will, vested in the corporation on valid legal trusts, . . .”.
These cases completely answer and refute all of appellants’ contentions.
The Courts of Pennsylvania have likewise repeatedly passed upon and sustained the validity of Girard’s testamentary trust for this orphanage establishment or college for “poor white male orphans” and have recognized it as the primary object of his bounty.
Girard’s Will first came directly before this Court* in Soohan v. The City of Philadelphia, 33 Pa. 9. The *593Court there decided that a fatherless child is an orphan within the meaning of Girard’s will and that a preference was to be given to those orphans born within the original corporate limits of Philadelphia, as laid out by William Penn, and existing at the death of the testator. Before coming to this conclusion, the Court in an elaborate opinion, pointed out that the orphans must he poor tohite male orphans between the age of six and ten years. The Court, in reviewing Girard’s will, said (page 22) :
“Then follow ten paragraphs in which he directs how his college shall be organized and managed, and what orphans shall he admitted into it. They must be poor white male orphans between the age of six and ten years, and must be bound to the corporation of the city. Priority of application to entitle to preference, all other things concurring; if more applicants than vacancies preference shall be given, ‘First, to orphans born in the city of Philadelphia; Secondly, to those born in any other part of Pennsylvania; Thirdly, to those born in the city of New York (that being the first port on the continent of North America at which 1 arrived); and lastly, to those born in the city of New Orleans (being the first port on the said continent at which I first traded in the first instance, as first officer, and subsequently as master and part owner of a vessel and cargo).’ ”
*594In City of Philadelphia v. The Heirs of Stephen Girard, 45 Pa. 9, the testamentary trust for the College was again attacked and sought to be voided because of (a) the provision against alienation of the real estate and (b) the provision for accumulation. This Court held that even if the subordinate provisions against alienation and accumulations were invalid, this would not destroy the validity of the testamentary trust for the college. In that case this Court once again pointed out that Girard’s testamentary trust for the College had been sustained, against vigorous attacks, by the Supreme Court in Vidal v. Girard’s Executors, 43 U. S., supra. This Court in its opinion said, pages 25-28: “In all gifts for charitable uses the law makes a very clear distinction between those parts of the writing conveying them, which declares the gift and its purposes, and those which direct the mode of its administration. And this distinction is quite inevitable, for it is founded in the nature of things. We must observe this distinction in studying Mr. Girard’s will, otherwise we run the risk of inverting the natural order of things by subordinating principles to form, the purpose to its means, the actual and executed gift for a known purpose to the prescribed or vaticinated modes of administering it, that are intended for adaption to an unknown future, and of thus making the chief purpose of the gift dependent on the very often unwise directions prescribed for its future security and efficiency.
“There is no sort of difficulty in making an analysis of the relevant parts of this will in accordance with this distinction.
“It is a devise of all the residue of his real and personal estate to the city of Philadelphia, an existing corporation, in trust, as his ‘primary object/ to *595construct, furnish, constitute, and maintain the institution now known as the Girard College, and then for certain municipal purposes, not necessary to be now specified. . . .
“4. Possibly some of the directions given for the management of this charity are very unreasonable and even impracticable; but this does not annul the gift. The rule of equity on this subject seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity, for equity will substitute another mode, so that the substantial intention shall not depend on the insufficiency of the formal intention: 7 Ves. 69; 4 Id. 329; 14 Simons 232; 17 S. & R. 91; 1 M. & W. 287.
“5. And this is the doctrine of cy pres, ... a reasonable doctrine, by which a well-defined charity, or one where the means of definition are given, may be enforced in favour of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness.”
Girard’s Will next came before this Court in Philadelphia v. Fox, 64 Pa. 169. The legislature passed an Act of June 30, 1869, providing for a separate body of citizens for the administration of trusts vested in the city, to be known as the Board of Directors, of City Trusts. The City contested the constitutionality of this Act and contended, inter alia, that the legislature could not take away the property of the municipal corporation without payment,. and that every citizen of Philadelphia and every owner, of property in the territorial limits in the old. city of Philadelphia had a pecuniary.interest in the devise of Mr. Girard. . The City’s contentions .were rejected by . this Court which, speaking through Justice Shabswood/. said, inter alia •:
*596“The City of Philadelphia is beyond all question a municipal corporation, that is, a public corporation created by the government for political purposes, and having subordinate and local powers of legislation: 2 Kent’s Com. 275; an incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government: Glover Mun. Corp. 1. It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government — essentially a revocable agency — having no vested right to any of its powers or franchises — the charter or act of erection being in no sense a contract with the state —and therefore fully subject to the control of the legislature, who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion. . . .
“Such a municipal corporation may he a trustee, under the grant or will of an individual or private corporation, but only as it seems for public purposes, germane to its objects: . . . .
“. . . When, therefore, the donors or testators of these charitable funds granted or devised them in trust to the municipality, they must be held to have done so with the full knowledge that their trustee so selected was a mere creature of the state, an agent acting-under a revocable power. Substantially they trusted the good faith of the sovereign. It is plain — too plain, indeed, for argument, that the corporation by accepting such trusts, could not thereby .invest itself with any immunity from legislative action. . • Such an act could hot change its éssential nature. It is surely not competent • for a mere, municipal organization,. which is made a. trustee of a charity,. to set up a vested right *597in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require: Montpelier v. East Montpelier, 29 Verm. 21. This whole question is put at rest, and that as to one of the most important of these trusts and as to this trustee, by the opinion of the Supreme Court of the United States in Girard v. Philadelphia, 7 Wallace 14: ‘It cannot admit of a doubt,’ says Mr. Justice Grier, ‘that where there is a valid devise to a corporation, in trust for charitable purposes, unaffected by any question as to its validity because of superstition, the sovereign may interfere to enforce the execution of the trusts, either by changing the administrator if the corporation be dissolved, or if not, by modifying or enlarging its franchises, provided the trust be not perverted, and no wrong done to the beneficiaries”
Gy Pres
The doctrine of cy pres is totally inapplicable in the instant case because that part of the will which appellants attack, namely, testator’s dominant intent to establish a home and college for “poor white male orphans” is clearly and unmistakably declared and can be literally and lawfully carried out. Appellants have completely misunderstood the doctrine of cy pres and when and for what purpose it will be applied. Cy pres is a well recognized equitable doctrine which is applicable when the object of a charitable bequest is not clear, or testator’s dominant purpose and intent can not be literally and lawfully carried out, or when one or more of the. directions concerning the charitable gift or the subordinate purposes or administrative provisions cannot be literally or lawfully carried out. In such an event the Courts sustain the charity and all *598the provisions which are ascertainable and valid, and apply the bequest as well as the subordinate or administrative provisions of the will as nearly as possible to testator’s general dominant intent.
14 Corpus Juris Secundum, Charities, §52, page 512, aptly and accurately states: “§52. — Cy Pres Power as Judicial Function, a. Definition and Nature. Cy pres means ‘as near to’, and the doctrine is one of construction, the reason or basis thereof being to permit the main purpose of the donor of a charitable trust to be carried out as nearly as may be where ir cannot he done to the letter ”
Williams Estate, 353 Pa. 638, 46 A. 2d 237. furnishes an accurate exposition and a proper application of cy pres. In that case, testatrix left her residuary estate in trust to establish a charitable home in the dwelling house she occupied and the adjoining grounds contiguous thereto for aged women who were unable to support themselves. The prospective beneficiaries were limited to residents of the County of Tioga, Pa. The residuary estate was insufficient for the purpose of carrying out testatrix’s intent in the exact manner prescribed as recited above. The Orphans’ Court applied the cy pres doctrine and awarded the residuary estate to the Soldiers and Sailors Memorial Hospital for the approximate charitable uses which testatrix specified. The Court said: “. . . The case therefore properly calls for an exercise of the court’s cy pres power to prevent a failure of the testatrix’s general charitable intent.
“However, as we said in Wilkey’s Estate, supra, [337 Pa. 129], at pp.l32-Í33,; — ‘In applying the principle of cy prés the ¿óurt does-not arbitrarily substitute its ovin judgment for the désiré of the testator, or supply a fictional' testamentary intent, but, on the contrary, *599it seeks to ascertain and carry ont as nearly as may be the testator’s true intention; . .
In Wanamaker Estate, 364 Pa. 248, 72 A. 2d 106, where the fund was inadequate for the exact purpose designated by the testator, the doctrine of cy pres was wisely applied and the Court said, inter alia:
“. . . "When a court applies the doctrine of cy pres it is not thereby arbitrarily substituting a beneficiary in place of the one designated by the testator, nor is it substantially altering the testamentary intent; on the contrary, it is carrying out that intent in its broader outlines in accordance with the testator’s more fundamental wishes as the court interprets them. . . .”
It is unnecessary to review additional authorities or to cite the many cases enunciating or dealing with the doctrine of cy pres in order to demonstrate what every student of the law of wills knows, namely, cy pres is never applicable to destroy a charitable bequest or a charitable trust, or to pervert or defeat testator’s dominant intent, as appellants would have us do in the instant case by omitting the word “white”.
City Holds the Gieaed Estate, Not In Its Goveenmental Capacity, But Ip At All, Only In Its Eiduciaey Capacity
It is, beyond any question, clear from Girard’s Will that the City held Girard’s residuary trust estate for the College only in a fiduciary capacity — that is as trustee for the persons, uses, purposes and trusts which were clearly set forth, defined and limited in Girard’s Will. One of appellants’ fundamental fallacies is their failure to recognize that the City can act in a fiduciary capacity as distinguished from a governmental capacity, and that with respect to Girard College (as also with respect to 88 other trusts) it *600is acting solely as a trustee. Appellants likewise fail to realize that the manifold activities performed by the City in connection with Girard College are performed not in its governmental capacity, but in its capacity as trustee. We again emphasize that the Supreme Court of the United States expressly held in Vidal v. Girard’s Executors, 43 U. S. 127, supra, that the City of Philadelphia took the bequest for the erection and support of Girard’s orphanage establishment “upon the trusts and for the uses designated in the will.......the charter of the city does invest the corporation with poAvers and rights to take property upon trust for charitable purposes,.......where the corporation [the City] has a legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same manner and to the same effect as a private person may do. It is true that, if the trust be repugnant to, or inconsistent with the proper purposes for Avhich the corporation was created, . . . that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction, to enforce and perfect the objects of the trust.”
In Girard v. Philadelphia, 74 U. S., supra, the Court again said: “. . . the corporation was vested Avith a complete title to the Avhole residue of the estate of Stephen Girard, subject to these charitable trusts. . . . The legislature . . . has giA-en the Avidest poAvers to the trustee to administer the trusts and charities according to the intent of the testator, as declared in his will.”
In City of Philadelphia v. The Heirs of Stephen Girard, 45 Pa. 9, the Court said (p. 25) : “It [the Will] is a devise of all the residue of his real and personal es*601tate to the city of Philadelphia, an existing corporation, in trust, as his ‘primary object/ to construct, furnish, constitute, and maintain the institution now known as the Girard College, . . . .”
Not only did the Supreme Court of the United States as well as the Supreme Court of Pennsylvania and the lower Courts of Pennsylvania and the Legislature of Pennsylvania recognize (as above recited) that the City held Girard’s residuary estate for Girard College in its capacity as a trustee under Girard’s Will, but the City itself has recognized that the City held said estate as trustee, and did not hold or own this property in its governmental or municipal capacity. The City caused the Legislature in 1832 and 1847 to pass an Act authorizing it (a) to accept Girard’s testamentary bequests for the improvement of the City, and (b) to carry out the charitable uses and trusts set forth in his will. This was wise because, as we have seen, the City of Philadelphia is not a sovereign, and the only powers it possesses are those granted to it by the Legislature, which, as stated by this Court in Philadelphia v. Fox, 64 Pa., supra, could be enlarged or terminated by the Legislature at 'will.
The Board of Directors of City Trusts contends that “poor white male orphans” means exactly what the testator said and should be upheld; on the other side, the City seeks to A'oid or diametrically alter this bequest. The City — assuming, arguendo, that it has a standing in this case, although under the Philadelphia Home Buie Charter the Board of Directors of City Trusts is, as above noted, a separate and distinct entity which is excluded from the Charter- — has on five prior occasions demonstrated, that its status and rights in the Girard Estate were only those of a trustee. For example, in 1921 the City of Philadelphia in its gov*602ernmental capacity condemned and took from the City of Philadelphia, Trustee under the Will of Stephen Girard, Piers Nos. 1 and 2 on North Delaware Avenue, paying therefor to the Trustee out of the City’s general funds, $849,672.46. On March 25, 1927, after application to and approval by the Orphans’ Court of Philadelphia County, the City purchased two tracts of land at Swanson Street and Pattison Avenue, Philadelphia, for the sum of $15,600. This sum the City paid to the Board of Directors of City Trusts, Trustee under the Will of Stephen Girard, out of its general funds. In December, 1947, the City in its governmental capacity, condemned for playground purposes a tract of land in South Philadelphia which was a part of the Estate of Stephen Girard. A jury awarded to the Trustee the sum of $50,000. for the property; the verdict was paid by the City out of its general funds. With the approval of the Orphans’ Court of Philadelphia County, the City of Philadelphia on May 8, 1953, purchased from the Trustee under the Will of Stephen Girard certain tracts of land in Pike County for $100,-000., said tracts to be used as a boys’ camp. Again on April 5, 1954, by decree of the Orphans’ Court of Philadelphia County, the Trustee under the Will of Stephen Girard, conveyed a tract of ground known as Girard Park, to the City to be used by the City for an open public place and park and for no other use and purpose whatsoever.
Do not those actions of the City further demonstrate that in its relationship to the Girard Estate it was acting solely as trustee and not in its governmental capacity!
How specious and fallacious is the appellants’ argument that the City was acting in a governmental capacity instead of in a fiduciary trustee capacity with *603respect to Girard’s Estate, is further obvious from the fact that if it ivere acting in a governmental capacity or if its actions were “State action”, it could legislatively change or pervert or terminate all of the purposes and objectives minutely prescribed in Girard’s Will. For example, it could legislatively provide that all poor children, instead of poor white male orphans, could be admitted to Girard College; or it could provide that only female children could be admitted to Girard College; or it could provide for co-education; or it could, we repeat, alter or pervert at will or absolutely destroy the purposes and objectives of Girard’s Will and exercise complete control over the College as if it were a public institution. Appellants do not specifically so contend, but that is the logical conclusion of their contention that the City was acting in a governmental capacity.
It is as clear as crystal that until the present suit was brought, the Courts, the Legislature, and even the City of Philadelphia recognized that the City did not own or hold Girard’s residuary estate (for the orphanage establishment now known as Girard College) in its governmental capacity, but either it or the Board of Directors of City Trusts owned or held all the said property of the Girard Estate as Trustee for the persons, uses and purposes specifically set forth and defined and limited in and by Girard’s Will.
The cases of Wilson v. Board of City Trusts, 324 Pa. 545, 188 A. 588, and Girard Estate, 73 D. & C. 42, on which appellants rely, refute, instead of support, the position of the appellants and their aforesaid contentions. What the Wilson case holds and stands for is clear, from the following quotations from the opinion of this Court;
“S. Davis Wilson,, as Mayor of the City of Philadelphia, and. as a member of the Board of City Trusts, *604petitioned the Court of Common Pleas of Philadelphia County for an alternative writ of mandamus to compel the remaining Directors of the Board of City Trusts to submit their books, records, accounts and documents relating to the management and administration of the moneys and properties in their control to three experts to be appointed by him, for the purpose of an inspection, examination and audit so that he might be enabled to properly perform his duties and functions as a trustee and properly protect and safeguard public interests and moneys. . . .
“. . . All trusts created by wills are within the exclusive jurisdiction of the orphans’ court and trusts inter vivos may fall within the jurisdiction of the two courts.
“To whom then is the Board of City Trusts accountable? The Act of June 30, 1839, P. L. 1276, provided that The duties, rights and powers of the City of Philadelphia, concerning all property . . . dedicated to charitable uses or trusts, the charge or administration of which are now or shall hereafter become vested in . . . the city . . . shall be discharged by the said city through ... a board composed of fifteen persons, including the mayor of said city, ... to be called directors of city trusts, who shall exercise and discharge all the duties and powers .of said city, . . . concerning any such property appropriated to charitable uses ... to the extent tliat the same have been or may hereafter be, by statute law or otherwise, vested in and delegated to the said city. . . .’.
.. “The common pleas judges, acting as a boai’d of appointment, designate the members of the Board and may remove them (Act of June .30, 1869, P.. L. 1276, Sec. 2, ánd Act of May 25, 1874, P. L. 228)'. This power..they have, however, .hot:. in the capacity-of a court, but as. á board of appointment..- The persons *605named under the Act of 1869 are the representatives or agents of the City of Philadelphia as trustee. While the board of judges of the common pleas court appoints the trustees, the orphans’ court possesses exclusive control over them in the conduct of testamentary trusts. They are, as to the orphans’ court, in the same situation as other trustees amenable to them.
“What is the relation of this Board to the government of the municipality under the Act? As stated by Judge Shabswood, in Philadelphia v. Fox, 64 Pa. 169, where the Act of 1869 first came up for consideration, it merely provided that one function of municipal government that had theretofore been exercised by the City generally, was removed and placed in a body of fifteen men, while the Mayor, Council and other officers continued to exercise all other governmental functions. Both groups are constituents of City government but they are independent of each other. Judge Shabswood there said, the directors are ‘a board dissociated from the general government of the city.’ It performs a part of the city’s duties and as such, could be considered a part of the City government, but its functions are apart from the general governmental poivers exercised by the City itself. . . .
“The law is clear that a trustee may compel his co-trustee to permit an examination, inspection and audit of the records of the trust estate and all matters in connection therewith that he may perform the duties with which he is intrusted and for whose exercise he.is responsible.”
Girard Estate, 73 D. & C., supra, is well summarized in the syllabus: “The orphans’ court will,...by virtue of the authority conferred upon it by the Revised Price Act óf June 7,1917 . . ., and the Fiduciaries Act óf April 18, 1949 and in application of the cy pres doctrine, authorize the Board of . Directors , of *606City Trusts charged with the administration of the Stephen Girard Estate to sell a large number of homes owned by the estate in Philadelphia, even though the will prohibits the sale of Philadelphia real estate, where it appears . . . that serious deterioration will occur in the foreseeable future, . . . that their operation is presently being conducted at a loss, . . . that the proceeds of the sale would produce a substantial income and that such income is necessary in order to continue to carry out the primary purpose of testator^s will, which is the operation of Girard College .”
In that case Judge Bolger said, inter alia: “These restraints upon alienation were advanced against the validity of the will in Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9 (1863), wherein the court held that they did not affect the validity of the trust, since they applied only to the mode of administration.* In re Application of the City of Philadelphia, 2 Brewster 462, the court authorized leases of coal lands for 15 years, pointing out that no tenants could be obtained for a less period, and therefore the trust purposes would be gravely endangered if the five-year limitation'prevailed.* The court held that the doctrine applied, .... It is clear to us that this is added reason why the foregoing legislation must be interpreted in the light of the cy pres doctrine, and therefore, we must find that the retention of the real estate, the subject matter of the instant petition, has become incompatible with the maintenance and development of Girard College, which is clearly the dominant purpose of the trust. . . . The various appellate decisions and *607the decrees of this court in dealing with the problems which have arisen in the interpretation of the will of Stephen Girard, and in the administration of the trust, are unanimous in finding that the primary object of testator was the founding and perpetuation of the institution which we now know as Girard College.”
All of the foregoing cases as well as the actions of the City itself make clear beyond the peradventure of a doubt that there is absolutely no merit in appellants’ contentions that Girard College is City property owned by it in its governmental capacity, or that the City was the primary object of testator’s bounty, or that the City could, in its governmental capacity or otherwise, divert the trust property to any public purpose or use it desired, or that it could rewrite testator’s will in a manner and for a purpose diametrically different from the primary objects lie so clearly specified.
It is, we repeat, impossible to read Girard’s Will without being convinced that the primary object of his heart and soul and bounty was the construction and maintenance of an orphan establishment now known as Girard College — a home, college and orphanage for “poor white male orphans”. It is a great and wonderful charitable trust which has been repeatedly sustained by the Supreme Court of the United States and by the Supreme Court of Pennsylvania and by the lower Courts of Pennsylvania for over one hundred years — it should not now be perverted or destroyed unless recent decisions of the Supreme Court clearly compel such a change.
Recent Decisions op the Supreme Court
The final contention made by appellants is that Girard’s charitable trust for “poor white male orphans” violates the Fourteenth Amendment -to the Constitution of the United States and therefore can-no longer be carried out. Tbe Fourteenth Amendment *608(Section 1) provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The cases on which appellants mainly rely to support this contention are Brown et al. v. Board of Education, 347 U. S. 483; Bolling et al. v. Sharpe et al., 347 U. S. 497; Barrows v. Jackson, 346 U. S. 249; and Shelley et ux. v. Kraemer et ux., 334 U. S. 1. These are factually very different from the instant case and do not control it. In the Broten case and its companion case, the Bolling case, the issue was the right of colored boys to attend a public school on an integrated basis with white students. The Court held that a segregated colored school was a violation of the Fourteenth Amendment and reqxxired public schools to be on an integrated basis. In the Bolling case the same principle was applied to the Federal Government under the Fifth Amendment. In those cases the public schools were, as their name implied, public schools founded and maintained and paid for by the State or by the Federal Government or by one of their (respective) agents out of public funds, namely, taxes or other public money. Neither those decisions, nor any other decision, nor the Fourteenth Amendment provide that a - private individual cániiot leave his money: for a church or eliarity of his choice, or for a private school or for án orphanage for -white persons ór for any- sem tarian pui'pose. - Cf. Booker v. Grand Rapids Medical *609College, 156 Mich. 97; 10 Am. Jur. §516, p. 10; 56 C.J. §§1-3; 78 C.J.S. §§1-3; 11, 47 Am. Jur. §220.
In Pierce v. Kill Military Academy, 268 U. S. 510, the Court held that the State cannot, under its police power, deprive citizens of the right to establish private schools, or deprive parents of the right to have their children attend private schools, or compel parents to have their children attend public schools. Such a statute, the Court said, would be a violation of the Fourteenth Amendment. This was reiterated in Connell v. Kennett Township, 356 Pa. 585, 52 A. 2d 645; Commonwealth ex rel. School District of Pittsburgh v. Bey, 166 Pa. Superior Ct. 136, 70 A. 2d 693; Commonwealth v. Beiler, 168 Pa. Superior Ct. 462, 79 A. 2d 134.
The Brown and the Bolling cases, we repeat, dealt only with public schools owned and operated with taxpayers’ money and did not purport to hold that a private school for white persons or a private charity or a sectarian church was or would be a violation of the Fourteenth Amendment. They are therefore clearly distinguishable.
In Buchanan v. Warley, 245 U. S. 60, a City Ordinance which forbade colored persons to occupy houses as residences in blocks where the greater number of houses were occupied by white persons, was declared unconstitutional as a violation of the Fourteenth Amendment. This is clearly distinguishable from the instant case because that was State or City action.
In Corrigan v. Buckley, 271 U. S. 323, plaintiff brought a suit in equity to enjoin the conveyance of certain real estate to a colored man in violation of an agreement between plaintiff and defendant and other landowners not to sell to any person of negro race or blood. The Supreme Court said (pp. 329-330):
*610“Under the pleadings in the present case the only-constitutional question involved was that arising under the assertions in the motions to dismiss that the indenture or covenant which is the basis of the bill, is ‘void’ in that it is contrary to and forbidden by the Fifth, Thirteenth and Fourteenth Amendments. This contention is entirely lacking in substance or color of merit.* The Fifth Amendment ‘is a limitation only upon the powers of the General Government,’ Talton v. Mayes, 163 U. S. 376, 3S2, and is not directed against the action of individuals. The Thirteenth Amendment denouncing slavery'- and involuntary servitude, that is, a condition of. enforced compulsory service of one to another, does not in other matters protect the individual rights of persons of the negro race. Hodges v. United States, 203 U. S. 1, 16, 18. And the prohibitions of the Fourteenth Amendment ‘have reference to state action exclusively, and not to any action of private individuals.' Virginia v. Rives, 100 U. S. 313, 318; United States v. Harris, 106 U. S. 629, 639. ‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amendment/ Civil Rights Cases, 109 U. S. 3, 11. It is obvious that none of these Amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property; and there is no color Avhatever for the contention that they rendered the indenture void.”
The Corrigan case has been cited with approval many times by the Supreme Court of the United States. • However, in the recent case of. Shelley v. Kraemer, 334 U. S. 1, tlie Court- emphasized the point that Corrigan v. Buckley, 271 U. S. 323, supra, did not decide whether the restrictive covenants could be judi*611cially enforced, but only whether they were valid and “since the inhibitions of the constitutional provisions invoked apply only to governmental action as contrasted to action of private individuals, there was no showing that the covenants, which were simply agreements between private property owners, were invalid.” Again in Hurd v. Hodge, 334 U. S. 24, the Court emphasized that Corrigan v. Buckley, 271 U. S., supra, concerned “the validity of the restrictive agreement standing alone”, while the Shelley v. Kraemer and Hurd v. Hodge cases concerned the “validity of Court enforcement of the restrictive covenants”.
In Shelley v. Kraemer, 334 II. S., supra, the Court held that a colored man had a constitutional right to purchase and occupy properly and that a racially restricted real estate covenant could not be enforced by the State Courts because it amounted to a denial by the State or its officers of the equal protection of the laws in violation of the Fourteenth Amendment. The Court pointed out, however, that the constitutional provision loas only a prohibition against the States and not against individual citizens. The Court, speaking through Chief Justice Vinson, said: “Since the decision of this Court in the Civil Rights cases, 109 U. S. 3, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, hoicever discriminatory or wrongful.
“We conclude, therefore, that the restrictive agreements standing alone cannot he regarded as violative of any rights guaranteed to petitioners hy the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been *612no action by the State and the provisions of the Amendment have not been violated.”
The City in this case is not acting as a sovereign or as an agency of or for the State; if it is acting at all, it is acting, we repeat, as trustee under a ivill of a private citizen. The property involved is the property, not of the City or the State; it is the property of the Stephen Girard Estate and it is Girard’s charity and benevolence and his will, not the charity or benevolence of the City or State, that alone is involved in this case. The Courts are not acting as an agency of the City or State to deprive these applicants of any constitutional rights — the applicants are the ones who are seeking State action in their behalf to invalidate a private Will in which they are not beneficiaries. This is the converse of Shelley v. Kraemer and would seem to be a matter completely outside of the Fourteenth Amendment.
Private trusts for charitable purposes, of which there are a myriad, have been sustained as valid by the Supreme Court of the United States and by the Courts of every State, particularly Pennsylvania, even where the class of beneficiaries was limited to racial or religious groups. Such charitable trusts are still valid and constitutional unless State or City action (or an agency thereof) deprives persons excluded from the charity, of their constitutional rights.
This Charitable Trust Will Not Be Permitted to Fail Merely Because the City Does Not Desire to Or Cannot Legally Act As Trustee
It is hornbook law that the Orphans’ Court has the inherent power to remove a trustee and to appoint a new or substitute trustee, in order to protect or preserve the trust. If the City of Philadelphia does not *613wish to act as trustee in this charitable estate or if for constitutional or other reasons it cannot carry out the trust for Girard College in accordance with Girard’s clearly expressed purpose and his specific, as well as his dominant, testamentary intent — this would not void the trust or change it into a bequest to the City in its governmental capacity. Such a situation would merely require that a new or substitute (corporate) trustee should be appointed by the Orphans’ Court, which can lawfully carry out the above mentioned trust for Girard College: Vidal v. Girard’s Executors, 43 U. S. 127; Girard v. Philadelphia, 74 U. S. 1; Bangor Park Association Case, 370 Pa. 442, 88 A. 2d 769; Jordan’s Estate, 329 Pa. 427, 197 A. 150; Abel v. Girard Trust Co., 365 Pa. 34, 73 A. 2d 682.
Effect of City’s Contentions
If the present contention of the City is correct, its effect will be catastrophic on testamentary church and charitable bequests, as well as on the law of Wills in Pennsylvania. The constitutional prohibition against discrimination — the Fourteenth Amendment — is not confined to color; it 'prohibits the States from making any discrimination because of race, creed or color. It follows logically and necessarily that if an individual cannot constitutionally leave his money to an orphanage or to a private home and college for poor white male orphans, he cannot constitutionally leave his money to a Catholic, or Episcopal, or Baptist, or Methodist, or Lutheran or Presbyterian Church; or to a Synagogue for Orthodox Jews; or to a named Catholic Church or to a named Catholic priest for Masses for the repose of his soul, or for other religious or charitable purposes. That would shock the people of Pennsylvania and the people of the United States more than a terrible earthquake or a large atomic bomb.
*614We adopt what Judge Lefever, speaking for a unanimous six-man Orphans’ Court of Philadelphia County, so well said: “ ‘The most solemn act of a man’s life, which is consummated by his death, is his last will and testament. By that act he makes a law for the disposition of his own property, acquired by his own industry, which, if it does not contradict the law of the country, has hitherto been considered inviolate. Shall it be so considered no longer in Pennsylvania?’ The Supreme Court of Pennsylvania answered ‘No’ to this interrogatory and declared unconstitutional an Act of Assembly which attempted to vary the terms of testator’s will in setting up an orphanage.
“. . . Significantly, he [Girard] did not specify any color limitation in the latter two gifts. Therefore, it is clear that he intended white, and no other, in the pivotal phrase now before us, viz: ‘poor white male orphans’, and that he knew how to say white when he meant white.
“. . . There is no shortage of ‘poor white male orphans’. In fact, there are more qualified applicants than can be accepted and accommodated. There is, therefore, no present failure of the purpose of the trust; a fortiori, there is no ground for the application of the cy pres doctrine. . . .
“The fallacy in exceptants’ position is their contention that Girard College should be regarded as a public school. It is not. Girard College is a private school. It is more than that — in Stephen Girard’s own words it is an ‘Orphan establishment’, where the objects of testator’s bounty receive not only an education but also lodging, board, clothing and all of the necessities of life. The trust estate was created solely from the private property of Girard. Girard College was not established and it has never been operated at pub-*615lie expense. Every dollar expended for construction, maintenance and operation of Girard College and for the education, maintenance and support of the students has come, and must come, from Girard’s estate. Not one penny ox the the trust estate has come from the City of Philadelphia, from the Commonwealth of .Pennsylvania, [or] from any other governmental body, [or] nor from any source other than Stephen Girard. This privately established, privately financed, and privately maintained ‘Orphan establishment’ cannot he equated to a publicly financed and publicly maintained school.”
Italics tlirougliout, ours,
By his codicil dated June 20, 1831, he changed the situs of his “Orphan Establishment” to its’ present location.
1 and 2 dealt with instructors.
It was even argued that you could not be a good American citizen unless you went to a school composed of whites and colored.'
See also: Crawford Estate, 362 Pa. 458, 67 A. 2d 124; Warden Trust, 382 Pa. 311, 314-315, 115 A. 2d 159; McKean Estate, 366 Pa. 192, 77 A. 2d 447; Borsch Estate, 362 Pa. 5S1, 67 A. 2d 119; Willcox v. Penn Mutual Life Insurance Co., 357 Pa. 581, 55 A. 2d 521.
One of the basic fallacies of appellants is their failure to recognize the distinction between the City’s actions in its governmental capacity and its actions in its .capacity as a’fiduciary or trustee. .
McFadden Estate, 381 Pa. 464, 1Í2 A. 2d 148; Wright Estate, 380 Pa. 106, 110 A. 2d 198; Edmunds Estate, 374 Pa. 22, 97 A. 2d *58675; Kehr Will, 373 Pa. 473, 95 A. 2d 647; Britt Estate, 369 Pa. 450, 87 A. 2d 243.
The Pennsylvania Company for Insurance on Lives and Granting Annuities, now known as The First Pennsylvania Banking and Trust Company, was incorporated in 1S12, but did not acquire trust powers until 1836. The Girard Trust Company, now the Girard Trust Corn Exchange Bank, was incorporated in 1836. The Fidelity Trust Company, now the Fidelity-Philadelphia Trust Company, was incorporated in 1S66. The Provident Trust Company was incorporated in 1865. The Real Estate Title Insurance Company, now known as' Tradesmens' 'Bank and- Trust Company, was incorporated as a title company in. 1876 and first' acquired trust powers in 18S9. These .were the first-trust companies-in Phil-, adelphia and their importance trust-wise is further evidenced by the- fact- that in 1847 the Pennsylvania Company had total trust assets of only $176,000. . ... ■ •.
The same question is raised again in the instant case and was raised and decided adversely to the appellants in Girard Estate, 73 D. & C. 42.
construct Delaware Avenue and repair wharves, and (b) “to ap*591point . . . agents ... to carry out the . . . trusts created by the
Unless authorized by tbe Constitution or by an Act of Assembly, cities and municipalities are not sovereigns; they have only such powers and such rights of legislation as are authorized by the Constitution or by an Act of the Legislature. Genkinger v. New Castle, 368 Pa. 547, 549, 84 A. 2d 303; Kline v. Harrisburg, 362 Pa. 438, 68 A. 2d 182; Commonwealth v. Moir, 199 Pa. 534, 541, 49 A. 351; Murray v. Philadelphia, 364 Pa. 157, 71 A. 2d 280; Philadelphia v. Fox, 64 Pa. 169, 180; Trenton v. New Jersey, 262 U. S. 182; Hunter v. Pittsburgh, 207 U. S. 161; Pittsburg’s Petition, 217 Pa. 227, 66 A. 348. This was the reason why the City of Philadelphia had Acts passed by the Legislature in 1S32 and 1847 to enable it to accept, the gifts made in Girard’s Will, viz., (a) to will of Stephen Girard.”
As early as 1S46, Girard’s Will had become a landmark in the realm of charitable trusts. In Brown v. Hummel, 6 Pa. 86, testator devised his estate to trustees to establish an' orphan home for the education of poor orphans. I-Ie provided in his Will how the succeeding trustees should be chosen. The legislature attercqjted by Act of April 21, 1846, to require the trustees to be chosen in a manner and by persons different from that set forth by the testator. The Court declared the Act to be unconstitutional and void and said, inter alia: “If the legislature, by ex parte enactment, can alter the will of a private individual, whose will shall escape? On whose will shall the hand of legislative innovation next be laid? . . . What private charity will next be disturbed and invaded? The will of Stephen Girard offers a conspicuous mark. How many charities in the character of hospitals, asylums, and schools, in the state, are exposed to the same peril as the charity created by the will of George Fry? ... If the legislature can alter one man’s will, by license of the constitution, they can alter the will of every man.” If the legislature cannot alter a man’s will, certainly the City, which is an agent of the legislature, cannot do so.
In Benjamin Franklin’s Administratrix v. City of Philadelphia, 2 D.R.. page 435, the lower Court sustained a charitable gift by Franklin to the inhabitants of Philadelphia in trust to pay the income for the benefit of apprentices with gifts over thereafter. That Court, speaking of Girard’s trust for the orphanage College, said: “. . . yet only a class, and that a small class of the people *593can obtain the benefit of it. Girls are excluded; boys whose fathers are living are excluded; men and women are excluded; in short, all hut ‘poor white male orphans’ are excluded. Nevertheless, it is a great charity, and withstood numerous and persistent attacks in the courts of Pennsylvania and of the United States, until now it is fixed, firm, and as immovable as a rock: Vidal v. Girard’s Executors, 2 Howard, U. S. 127; Philadelphia v. Girard’s Heirs, 45 Pa. 9; Girard v. Philadelphia, 7 Wallace, 1.”
These cases and others herein cited hold that permission to lease or sell land contrary to testamentary directions gives the Court no right to .invalidate .or pervert or destroy the clearly expressed primary object and purpose of testator’s Will, viz., an"ot; phanage establishment for-“poor white male orphans.”- - - . '!
Italics throughout, ours.