(concurring in the result).
I would affirm the Decree of the District Court on the ground that the removal in 1957 of the Board of Directors of City Trusts as trustee of the Stephen Girard Estate by the Orphans’ Court, and its appointment of substituted individual trustees, for the avowed purpose of carrying out the racial exclusionary clause of Girard’s Will, contravened the Fourteenth Amendment of the United States under the doctrine of Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) and its progeny.1
The Fourteenth Amendment is contravened under the Shelley doctrine, where there is “active intervention of the state courts, supported by the full panoply of state power”2 in the furtherance of enforcement of restrictions denying citizens their civil rights because of their race, color or creed.
*126In the instant case, the Orphans’ Court had two alternative courses of action following the ruling of the Supreme Court of the United States in Commonwealth of Pennsylvania v. Board of Directors of City Trusts of City of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957), that the Board’s denial of admission to Girard College of negro male orphans pursuant to the racial exclusionary clause of Stephen Girard’s Will constituted state action in violation of the Fourteenth Amendment.
The Orphans’ Court could have pursued the alternative of directing the Board of Directors of City Trusts to admit negro orphans to Girard College. Instead, it sum sponte pursued the alternative course of removing the Board and appointing individual private trustees in its stead so as to permit continuance of the discriminatory admission policy dictated by Girard’s Will.3
That the alternative action taken by the Orphans’ Court was for the avowed purpose of giving effect to the racial exclusionary clause of Girard’s Will is explicitly spelled out in the Orphans’ Court opinion accompanying its Decree of September 11, 1957 which removed the Board of Directors of City Trusts as trustee of the Girard Estate, “effective upon the appointment of a substituted trustee by this court.”4
In this opinion, Girard’s Estate, 7 Pa.Fiduc.Rep. 555, (1957), the Orphans’ Court said at pages 557-558:
“The Supreme Court of the United States has ruled, as a matter of federal constitutional law, that the Board of Directors of City Trusts of the City of Philadelphia is an agency of the State of Pennsylvania and consequently forbidden by the Fourteenth Amendment from operating, even as a trustee of private funds, an establishment which excludes all but “poor white male orphans.”
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“The Supreme Court of Pennsylvania, which is the final arbiter of our state law, has unequivocally stated that if for any reason, the Board of Directors of City Trusts of the City of Philadelphia cannot continue to administer the trust in accordance with testator’s directions, it becomes the duty of this court to remove it as trustee and to appoint a substituted trustee which can lawfully administer the trust in the manner prescribed by the testator.
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“In order to harmonize the opinions of the United States Supreme Court and the Supreme Court of Pennsylvania, we hold: (1) that the primary purpose of the testator to benefit “poor white male orphans,” only, must prevail; and (2) that the disqualification of the Board as trustee of this estate by the United States Supreme Court requires us to remove it from the administration of the trust and to appoint a substituted trustee, not so disqualified.” (Emphasis supplied.)
The Supreme Court of the United States has recently ruled that in examining the constitutionality of a state act the reviewing court (1) must consider the act “in terms of its ‘immediate objective,’ its ‘ultimate effect’ and its ‘historical context and the conditions existing prior to its enactment’ ”,5 and, (2) must “assess the potential impact of official action in determining whether the *127State has significantly involved itself with invidious discriminations”.6
The stated rule is, of course, applicable to the action of a state court.
Applying the principles above stated to the instant case, I am of the opinion that the Orphans’ Court “significantly involved itself with invidious discriminations” when it removed the Board of Directors of City Trusts and appointed individual trustees of the Estate of Stephen Girard for the express purpose of effectuating the racial exclusionary clause in Girard’s Will, and thereby brought itself within the ambit of the Shelley doctrine.
As the Shelley case said at page 18 of 334 U.S., at page 844 of 68 S.Ct.:
“ * * * it has never been suggested that state court action is immunized from the operation of those provisions [14th Amendment] simply because the action is that of the judicial branch of the state government.”
For the reasons stated I would confine the scope of our affirmance of the District Court’s Decree to the ground assigned at the outset of this concurring opinion.
. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
. Shelley v. Kraemer, 334 U.S. 1 at page 19, 68 S.Ct. 836, 845. At page 14 of 334 U.S., at page 842 of 68 S.Ct. of Shelley the Court said:
“That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court. * * * In Ex parte Virginia (1880), 100 U.S. 339, 347, 25 L.Ed. 676, the Court observed: ‘A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way.’ ”
. The Orphans’ Court in pursuing this alternative course acted in conformity with the holding of the Supreme Court of Pennsylvania, in Girard Will Case, 386 Pa. 548, 566, 127 A.2d 287 (1956) that should the Supreme Court of the United States hold, as it later did, that the Board of Directors of City Trusts could not carry out the exclusionary policy of Girard’s Will, that the Orphans’ Court could then appoint another trustee who could do so.
. The Orphans’ Court Decree of October 4, 1957, substituting thirteen private citizens as Trustees of the Stephen Girard Estate, is reported at 7 Pa.Fiduc.Rep. 606.
. Reitman v. Mulkfey (1967) 387 U.S. 369, at page 373, 87 S.Ct. 1627, at page 1630, 18 L.Ed.2d 830.
. Id. at page 380, 87 S.Ct. at page 1634.