
    EASTERN DISTRICT, PHILADELPHIA, 1859.
    Soohan versus Philadelphia.
    1. A fatherless child is an orphan, and, if born within the limits of the city of Philadelphia, as laid out by William Penn, and existing at the time of the death of Stephen Girard, is entitled to be admitted to Girard College in preference to children born elsewhere.
    In Equity, certificate from the Court of Nisi Prius.
    James Soohan, by his mother and next friend, brought this bill against the city of Philadelphia, and against Samuel H. Perkins, William Biddle, James J. Boswell, George C. Bower, jr., James Campbell, Mordecai L. Dawson, Daniel Deal, William H. Drayton, Samuel F. Flood, Daniel M. Fox, Thomas E. Harkins, William Martin, George W. Nebinger, Robert Selfridge, Thomas S. Stewart, James S. Watson, and William Welsh, directors for the Girard College for orphans, and complained that Stephen Girard, late of the city of Philadelphia, deceased, in and by his last will and testament, hearing date the 16th day of February, 1830, and duly admitted to probate on the 31st of December, 1831, did, among other things, give and bequeath unto the corporation of the Mayor, Aldermen, and Citizens of Philadelphia, certain portions of his estate in trust, to erect and furnish certain college buildings, particularly described in his said will.
    And he did, by his said will, provide and direct that his said trustees should admit therein, for maintenance and education, as many poor white male orphans, between the ago of six and ten years, as could be maintained and educated therein out of the income of certain funds appropriated by his said will for the erection and endowment of the said college; and further alleged, in due and legal form, the minority of the complainant, the decease of his father, his application for admission to the college, its rejection by the directors, &c., all of which facts were admitted by respondents in their answer, and the sole question to be determined was that raised in the following statement:
    Heretofore it has been the practice of the board of directors of the Girard College for orphans, to admit into such institution as an orphan a child having, a'mother living; the present board of directors refuse to admit any male child as an orphan, who has not lost both father and mother, and because of such refusal given to the appellee, the bill in this case has been filed.
    The court, per Mr. Justice Read, made the following decree:
    “And now, to wit, January, 15, 1859, the cause having come on to be heard on bill and answer,, it is ordered, adjudged, and decreed by the court that, under the provisions of the will of the said Stephen Girard, and for’the purposes thereof, a fatherless child shall be held to be an orphan; and that such orphans as were born within the limits of the city of Philadelphia as the same existed at the time of the making of the said will and the probate thereof — that is to say, between Vine and South streets, and between the rivers Delaware and Schuylkill — are entitled, provided they are in other respects qualified, to admission into said college before such orphans as were born elsewhere,” and enjoined respondents from admitting certain orphans named until after the complainant had been admitted.
    From this decree respondents appealed.
    The error assigned was the entering the decree, “ that, under the provisions of the will of Stephen Girard, and for the purposes thereof, a fatherless child shall be held to be an orphan.”
    
      Henry T. King, Esq., for appellants.
    The word “ orphan,” though so well known to statute and decision, seems never to have received a judicial definition in this country or in England. Certain it is, that this court has never yet affixed a legal meaning to it.
    The present rules of the Girard College admit as orphans, within the meaning of Mr. Girard’s will, none but children who have lost both parents. Are these rules consonant to the intent of the testator? and, if so, are those rules repugnant to any principle of law ?
    To begin with the latter proposition, if Mr. Girard meant, in the use of the word “ orphan,” to designate only a parentless child, does any legal definition of the word forbid the carrying out of that intention ? In the absence of judicial decisions, we must resort to law dictionaries, compiled by men of acknowledged learning and research, as furnishing the best authority attainable. Bouvier, (2 vol. Diet. 225) defines the word “ orphan,” “ a minor or infant who has- lost both of his or her parents; sometimes the term is applied to such a person who has lost only one of his or her parents.”
    
      In literary dictionaries, Webster is, perhaps, the best guide, and he makes a distinction between the word when used as a substantive and as an adjective; the former is defined, “ a child who is bereaved of both parents,” the latter is said to mean “ bereaved of parents.”
    In the twentieth clause of Stephen Girard’s will, where he first describes the objects of this legacy, he terms them “ poor male white orphan children.” He afterwards briefly calls them orphans. But, in this first clause, touching this bequest, where he particularly points out those whom he would have enjoy his bounty, he uses the adjective. If, therefore, we are to suppose Mr. Girard, before using this word, had critically analyzed it, and understood its exact and legal meaning, he meant by the use of the adjective to designate as orphans those children only who had lost both parents. But it is not at all probable that Mr. Girard entertained any refined notions' as to the meaning of the word. Though a man of strong natural intellect, he was not highly educated. The reasonable presumption therefore, is, that he understood the word as the mass of men around him then understood, and as the great bulk of the people still understand it, that a child is not an orphan till both parents are in the grave. Ask a father, whose wife is dead, whether he deems his children orphans, and in nine cases out of ten you will be answered, “ No ! not so long as I live to provide for and protect them.” Nor will many mothers be found to term their children orphans, though their husbands be no more, so long as they live to watch over them, unless, indeed, they have been taught that the word has another meaning, by the former management of Girard College. I have understood that those who manage this college have found to their trouble, by the interference of mothers, that the mothers do not consider their sons orphans. The community interpret the word bereaved of parents. If this be not the accepted meaning, since it has been used by the English tongue, we should have two words — one for a child who has but one parent, another to describe a child who has lost both. A child who has no parent, in its pitiful, helpless condition, has superior claims to one who, blessed with a parent, has a protector, bound by the nearest and dearest ties. Yet we are told that our language is so meagre, that we have not words to mark the distinction, wide though it be. The terms “ whole orphan” and “ half orphan” are absurd, as would be a “ whole child” or “half child,” a “whole parent” or a “half parent.” No; a child is an orphan, or it is not an orphan — it cannot be divided. And, if Mr. Girard had meant “ half orphan,” or “ whole orphan,” he would have said so; but, as he used the word “ orphan” simply, he meant it in its fullest sense.
    
      In this mode of speech, the people are correct: no child is an orphan so long as a parent lives. If this court are satisfied, from their own experience or observation, or from what source soever, that such is the generally received meaning, and that it was the same when Girard wrote this will, they will not allow the custom of London, or the definition of an old law dictionary, to overrule the plain intent of this testator.
    An orphan, says the complainant, is a fatherless child; such a definition is not supported by reason or authority. '
    The custom of London, which is relied upon as supporting this construction, shows that the practical, meaning held by the Orphansy Court of that city was, that an orphan within the juris- • diction of that court was a child who had lost either parent; for, if any man or wow.an free of the city of London died, leaving children within age, a Court of Record, composed of the mayor and aldermen of the city, had the custody of the persons, lands, and chattels of such orphans. Wood’s Inst. 532; Macpherson on Infants, 48. This custom proves tod much for the appellee, as it widens this charity greater than the most liberal constructionists have yet done; so wide as to reach children whose fathers are living; for, if it is held that an orphan is any other than a child bereaved of both parents, there is no place to pause until it is decided that the loss of either makes an orphan. And so says Webster, upon whom the counsel for the appellee relied. Then, if this court open this 'charity to other than those who have lost both parents, they can make no distinction between the loss of father or mother ; no matter which parent lives, they are alike orphans. And this institution will be filled with those who have fathers as well as those who have mothers, who can, or who should, provide for them, to the exclusion of the poor parentless wanderer for whom this fund was gathered together, who will be left to grow up in ignorance and vice, -without a hand stretched out to guide or protect him. Could this have ever been the intent of him who wished to provide for poor orphans ? But what did Mr. Girard mean when he used the word “ orphan” in his will ? If the court can gather from the words of the whole will his intent in the use of this word, they will so interpret it that Mr. Girard’s will may be obeyed. As the word has never been legally defined in this State, this court will not interpret the will by a construction that may now for the first time be put upon this word. “ The intention of the testator shall govern, save where the law overrules that intention.” Ruston v. Ruston, 2 D. 243. And the doctrine that wills must be conformable to the rules of law, is not to be applied to the construction of words, but the nature of estates. And the best way is to find out the general intent, and interpret particular words accordingly. Findlay v. Riddle, 3 Binn. 149. The intent, must be gathered from the words of the will, as such words are understood and accepted by the common mind.
    If then it be ascertained from 'the reading of this will, that the testator in making this provision for the maintenance and education of poor white male orphans, meant that his bounty should reach only those bereaved of both parents, no rule of law or equity forbids it.
    
      Edward Olmsted, Esq., for appellee.
    1. The city of Philadelphia mentioned and described in Mr. Girard’s will is the city known by the corporate name of “ The Mayor, Aldermen and Citizens of Philadelphia.”
    2. That for the purpose of admission into the Girard College for Orphans, a fatherless child is an orphan. Blenan’s Estate, Brightly’s Rep. 338; Commonwealth v. The Erie & N. E. R. R. Co., 3 Casey, 339; Beck v. The City, 5 Har. 112; Act of 1847; 2 Salkeld, 426; 2 Blackstone’s Com. 444, 519; 7 Viner, 213*; 1 Macpherson on Infants, p. 54, (48), § 3, Guardianship by custom of cities and boroughs.
    When any man or woman free of the city of London, dies leaving children within age, the corporation have custody of the lands, chattels, and persons of such orphans.
    After the death of a freeman the mayor and aldermen may summon his widow or executor to appear and give security to exhibit an inventory of his estate. Tomlin’s Law Dictionary: Orphan — a fatherless child. Wharton’s Law Lexicon, pub. 1847: Orphan — a fatherless child or minor, or one deprived' of both father and mother.
    The father is the head of the family: to him the children look for support, protection, and advancement: he is entitled to their earnings, and he can by his will commit the custody of their person and estates to a guardian of his own choice. When the father dies, in all civilized countries the law takes cognizance of his death, sells or divides his property, and appoints guardians for his children.
    On the other hand, the mother is not entitled to her children’s earnings, — can appoint no guardian for them, — and upon her death the family relations are undisturbed so far as the law is concerned, except in particular cases.
    These are no doubt the reasons why, when a child was de¡xrived of his father by death, he was called an orphan, that is, one deprived, bereft.
    In Pennsylvania, by the Act of 1713, a fatherless child is recognized as an orphan. T Smith’s Laws, 81, an Act for establishing Orphans’ Courts.
    It is stated in the appellant’s argument that it is not at all probable that Mr. Girard entertained any refined notions as to the meaning of the word “ orphan;” but that tfye reasonable presumption is, that he understood it as the mass of men around him understood it; and an appeal is made to this understanding to justify the conclusions of the appellant.
    Now, this appeal cannot be made to-the' public by polling its members. But the understanding of a people as to the meaning of a word or phrase can only be ascertained by reference to written works habitually in use among them. With this view the following are presented:
    Book of Lamentations, ch. v. verse 8: We are orphans and fatherless, and our mothers are as widows.
    In the translation of the Septuagint version, by Charles Thompson, published in Philadelphia in 1808, the verse is rendered: We are become orphans, our father is no more; our mothers are like widows.
    In the Psalter in the Book of Commpn Prayer of the Church of England, Psalm 68, v.- 5, reads: “ He is a Father of the fatherless, and defendeth the cause of the widows: even God in his holy habitation.”
    In the metrical version of the Psalms in the same book, the verse is rendered:
    5. Him, from his empire of the skies,
    To this low world compassion draws,
    The orphan’s claim to patronize,
    And judge the injur’d widow’s cause.
    In the Psalter, Psalm 82, v. 3, reads: “ Defend the poor and fatherless : see that such as are in need and necessity have right.”
    In the metrical version:
    2, 3. How dare you then unjustly judge,
    Or be to sinners kind?
    Defend the orphans and the poor:
    Let such your justice find.’
    In the Psalter, Psalm 109, v. 8 : “Let his children be fatherless : and his wife a widow.” Yerse 11: “ Let there be no man to pity him : nor to have compassion upon his fatherless children.”
    In the metrical version:
    9, 10. His seed shall orphans be, his wife A widow plunged in grief;
    His vagrant children beg their bread,
    Where none can give relief.
    12. None shall be found that to his wants Their mercy will extend,
    Or to his helpless orphan seed The least assistance lend. •
    These metrical versions were made by Tait and Bready, in 1711.
    In the English Bible, Psalm 10, v. 18: “ To judge the fatherless and the oppressed, that the man of the earth may no more oppress.”
    In the metrical version of the Psalms used in the Scottish Presbyterian Church, the verse is rendered :
    Thou hast it seen: for their mischief and spite thou will repay:
    The poor commits himself to thee: thou art the orphan’s stay.
    Psalm 140, v. 9 : “ The Lord preserveth the strangers : he relieveth the fatherless and widow: but the way of the wicked he turneth upside down,” which is thus rendered in-the metrical version:
    The stranger’s shield, the widow’s stay, the orphan’s help is he ;
    But yet by him the wicked’s way turn’d upside down shall be.
    The metrical version above mentioned was made by Erancis Rous, A. d. 1646.
    Whenever the translators of the Bible and the compilers of the English Book of Common Prayer intended to present the idea of destitution, friendlessness, helplessness, or abandonment, they described the object as fatherless.
    The following are examples:
    Epistle of St. James, i. 27: Pure religion and undefiled before God and the father is this, to visit the fatherless and widows* in their affliction, &c.
    Psalm 10, v. 20: To help the fatherless and poor unto their right, that the man of the earth be no more exalted against them.
    Litany in Book of Common Prayer: That it may please thee to defend and provide for the fatherless children and widows, and all that are desolate and oppressed.
    Commination Service, same book: Cursed is he that perverteth the judgment of the stranger, the fatherless and widow.
    These expressions show that fatherless was considered as equivalent to friendless, destitute and helpless, and therefore the word “ orphan,” which originally meant bereaved or needy, came to be used as its synonym.
    Henry Y., act 2, scene 4:
    And on your head
    Turning the widow’s tears, the orphan’s cries,
    The dead men’s blood, the pining maiden’s groans
    Bor husbands, fathers, and betrothed lovers, &c.
    Richard III., act 2, scene 2 :
    Why do you look on us, and shake your head,
    And. call us orphans, wretches, cast-aways ?
    If that our noble father were alive.
    
      Same; act 2, scene 2:
    
    
      Children. Were never orphans had so dear a loss.
    
      Duchess. These babes for Clarence weep, and So do I.
    In a ballad published in England, shortly after the battle of the Nile, the following verse's occur:
    Tes 11 was once a father’s pride,
    And my poor mother’s hope and joy,
    But in the Nile’s proud fight he died,
    And left me a poor orphan boy.
    She called me her poor orphan boy, &c., &c.
    Francisci Junii Etymologicum Anglicanum Orphan. — Orphanus, “ orbus patri.” And this is the only meaning given.
    In the constitution and plan of education for the Girard College for Orphans, by Francis Leiber, published by the trustees of the College in 1884, at page 180 is a note, from which the following is extracted: -,
    “ The French dictionary off the Academy says, Orphelin: enfant mineur qui a perdu son pére et sa mére, ou Vun des deux, but it adds, it est a remarquer que dans Tusage ordinaire, ou ne se serf guére du mot d’orphelin en parleant d’un enfant qui n'a perdu que sa mere. The Spanish and Portuguese dictionaries of the respective academies were considerably influenced by the French. Thus we find in the first, Huerfano: persona de menor edad á quien han faltado su padre y madre 6 alguno de los dos— a literal translation of the French. Of Orfandad, however, the same work gives this definition:' Falta de los padres: y también se toma por la falta del padre solo. The Portuguese orfao signifies in general and law language always, a fatherless or parentless child. Orfanologia is a work on laws of orphans, i. e. fatherless children, because there are no special laws respecting children bereft of their mothers only. In Swedish there is no single word to express a fatherless, motherless, or parentless child; the Swedes say, fader eller moder lost barn (fatherless or motherless child ;) but an orphan asylum is barnhus for faderlosa barn, (a children’s house for fatherless children.) — Seuniu’s Swedish Dictionary.
    “ In Danish the word for orphan is faderlos (fatherless;) modelos is translated by motherless, but faderlSs by orphan. Wolff’s Dan. and Engl. Dictionary. To repeat, the Greek and Latin words are entirely indistinct; the Italian and Spanish.are for including the loss of both parents, or either of them; the French inclines for excluding the loss of the mother; the German, Swedish, Danish, and Portuguese, do still more so.”
    Rees’s Cyclo. vol. 26, title Orphan : Orphan — a child, a minor destitute of a father. Hence the Taborites, or followers of Zisea, finding themselves at his death without a chief or conductor, took the appellation of orphans.
    Bailey’s Diet, folio, 1736 : Orphan — one bereaved of father or mother.
    Johnson’s Diet, folio, 1765: Orphan — a child who has lost father or mother, or both.
    Hyde Clark’s Dictionary. London, 1858: Orphan — a child bereft of father or mother, or both.
    The construction contended for by the appellee dispenses the charity to the greatest number of objects. That of the appellant enlarges the territory whence to seek them. The former in a measure confines it to Mr. Girard’s home, the other prefers strangers to our own poor and friendless. The fatherless, poor child, it is within every one’s experience, is as helpless a subject as one destitute of both parents. Eor if a poor mother have to struggle for her child’s support as well as her own, her burden is increased; whereas a parentless child appeals more strongly to the sympathies and benevolence of strangers, and is in the main better and more universally cared for than one who has a living mother.
   The opinion of the court was delivered by

Read, J.

— William Penn contemplated, before leaving England for America, laying out a certain quantity of land or ground plat, for a large town or city, in the most convenient place upon the river for health and navigation. In his celebrated letter to the committee of the Free Society of Traders of the province, residing in London, witten in 1683, he describes his city in the following language: “ Philadelphia, the expectation of those that are concerned in this province, is at last laid out, to the great content of those here, that are any ways interested therein. The situation is a neck of land, and lieth between two navigable rivers, Delaware and Schuylkill, whereby it hath two fronts on the water, each a mile, and two from river to river. Delaware is a glorious liver; but Schuylkill beingahundred miles beatable above the falls, and its course northeast, towards the fountain of Susquehanna, that leads to the heart of the province, and both sides our own, it is like to be a great part of the settlement of this age. I say little of the town itself, because a platform will be shown you, by my agent, in which those who are purchasers of me, will find their names and interest.”

In a short advertisement upon the situation and extent of the city of Philadelphia, and the platform thereof, by the Surveyor General Thomas Holme, he says: “ The city of Philadelphia now extends from river to river, two miles, and in breadth near a mile ; and the governor, as a further manifestation of his kindness unto the purchasers, hath freely given them their respective lots in the city, without defalcation of any of their quantities of purchased lands ; and as it is now placed and modelled between two rivers, upon a neck of land, and that ships may ride in good anchorage, in six or eight fathoms -water, in both, close to the eity, and the land of the eity level, dry, and wholesome, — such a situation is scarce to be paralleled.”

Throughout the whole of this document, it is spoken of as the city, and in mentioning the public squares uses this language, “ There are also in each quarter-of the city, a square of eight acres, to be for the like uses as thg Moorfields are in London.”

“ The air,” says the proprietary) is sweet and clear, — the heavens serene, — like the south parts of France, rarely overcast, and as the woods come by numbers of people to be more cleared, that itself will refine.”

In the same year, 1683, that the' eity was laid out by the proprietary, it is called in the heading te the laws made at an assembly, held at Philadelphia, on the 27th day of the Eighth month, “The city of Philadelphia,” and in various acts, up to the year 1701,-inclusive, “ The town of Philadelphia.” (1 Hall & Sellars, p. 19.)'

On the 25th October, 1701, the proprietary granted a charter to the city of Philadelphia, in which he said, “ That at the humble request of the inhabitants and settlers of this town of Philadelphia, being some of the fir?t adventurers and purchasers within this province, for their encouragement, and for the more immediate and entire government of the said'town, and better regulation of trade therein, I have, by virtue of the King’s letter patent, under the great seal of England, erected the said town into a borough, and by these presents do erect the said town and borough of Philadelphia into a city, which said eity shall extend the limits and bounds, as it is laid out between Delaware and Schuylkill and its corporate title was the “ Mayor and Commonalty of the City of Philadelphia.”

By the Revolution, according to’the expressive language of the Legislature of 1777, all powers and jurisdictions not founded on the authority of the people only, became null and void, and the corporation of the city was therefore dissolved, and all its powers and jurisdictions entirely ceased. - -

The affairs of the city were managed by various local bodies, until the passage of the act to incorporate the city of Philadelphia, on the 11th of March, 1789, by which “ the inhabitants of the eity of Philadelphia, as the same extends, and is laid out between the rivers Delaware and Schuylkill, be, and they and their successors forever, are hereby constituted a corporation and body politic in fact and in law,, by the name and style of ‘ The Mayor, Aldermen, and Citizens of Philadelphia,’ ” and so continued until their consolidation, with the rest of the county of Philadelphia, into one great city, under the act of the 2d February, 1854.

On the 18th of April, 1794, the district of Southwark was incorporated by the name of “ The Commissioners and Inhabitants of the District of Southwarkon the 28th March, 1803, the district of the Northern Liberties was incorporated; on the 12th March, 1812, the township of Moyamensing; on the 22d March, 1813, the district of Spring Garden; and on the 6th of March, 1820, the Kensington District was incorporated.

The city of Philadelphia, in 1744, contained 1,500 houses, and 13,000 people; in 1790, 28,552; in 1800, 41,220 ; in 1810, 53,-722 ; in 1820, 63,802 inhabitants, whilst the rest of the county of Philadelphia, from 1800 to 1820, numbered about as many as the city proper. In 1830, the population of the city was 80,458 ; of the surrounding incorporated districts above epumerated 80,-952 ; and of the rural districts of the county, 27,451.

The city of London, like the city of Philadelphia, is surrounded by other municipal communities entirely distinct from it, as to revenue, expenditures, and local administration, and whilst the whole metropolis in 1841, covered a surface of 10,000 acres, with a population of nearly two millions, its territory is limited to about one square mile, or 600 acres, and its population to 129,251 souls. The corporate and parochial income of the city of London for public objects, and derived from trust estates for the relief of the poor, care of the sick, education, religion, and general purposes, local rates, coal and metage duties, street and market tolls, freedom and livery fines, and other charges for corporate and trading privileges, the port of London, and the conservancy of the river, is estimated to amount to the annual sum of ¿6900,000 sterling, or four millions five hundred thousand dollars.

Stephen Girard was born in Bordeaux, in France, on the 21st day of May, 1750. His father was a sea captain, and at the age of fourteen, young Girard became a sailor, and made several voyages to the West Indies. On the 4th of October, 1773, after undergoing the necessary examination, a license was duly granted, giving to Stephen Girard, of Bordeaux, full authority to act as captain, master, and patron of a merchant vessel.

Having purchased goods to the value of nearly 16,000 livres, or about $3,000 in Federal money, Mr. Girard started on his first mercantile adventure, and sailed again from his home, (which he never afterwards revisited,) arriving at St. Marc’s, in the island of St. Domingo, in the month of February, 1774. After disposing of his venture, and converting the proceeds into produce, he left the West Indies, and arrived for the first time in the North American colonies, at the port of New York, in the month of July of the same year. For several years, first as mate, and subsequently as master and part owner of a small vessel and cargo, ho traded between New York, Néw Orleans, and Port au Prince, and in May, 1777, in the latter capacity, Mr. Girard entered the waters of the Delaware, and arrived for the first time at Philadelphia, where he commenced business, and rented a store in Water street, Avithin a short distance of the spot where he located himself permanently.

On the approach of the British troops, he left for Mount Holly, in New Jersey, where he purchased .]i small property, and after the evacuation of Philadelphia by the enemy, on the 17th of June, 1778, he again returned and resumed his business in Water street.

In this neighborhood, Avith the exception of a voyage to Charleston and the Mediterranean, in a brig owned and commanded by himself, ilnd which terminated in July,-1788, Stephen Girard lived and died a citizen of the city of Philadelphia.

In the great yelloAY fever of 1793, which broke out in Water street, within a square of his residence, Mr. Girard distinguished himself by visiting, and attending upon the sick, and by his invaluable services as an active manager of the hospital at Bush Hill.

Seventeen thousand persons left the city, and of the remainder upwards of four thousand, or nearly a fifth, died. At a meeting of the citizens of Philadelphia, the Northern Liberties, and District of Southwark, assembled on Saturday, the 22d day of March, 1794,- and presided over by Thomas M‘Kean, a .signer of the Declaration of Independence, and then Chief Justice, and after-wards Governor of the State, their most cordial, grateful, and fraternal thanks were presented to those fellow-citizens named in the proceedings, “ for their benevolent and patriotic exertions in relieving the miseries of suffering humanity on the late occasion.” One of these citizens thus gratefully remembered was Stephen Girard, under whose “ meritorious exertions, and peculiar care” at the Bush Hill Hospital, in conjunction with Peter Iielon, every possible comfort Avas provided for the sick, and decent burial for those whom their efforts could not preserve from the ravages of the prevailing distemper.”

In 1797 and 1798, the fever again prevailed in Philadelphia with fearful violence, and again Mr. Girard exhibited the same enlarged philanthropy, and the same disregard of danger, by liberal contributions and personal services to the sick and dying.

In 1802, Mr. Girard was elected a member of the City Councils, and so continued for several years. Upon the expiration of the charter of the first bank of the United States, he established his own private bank, in the building occupied by the late national institution, and his first cashier was Mr. George Simpson, the cashier of the late bank.

During the war he rendered essential services by his loans and subscriptions, and after its close became a large stockholder in the second bank of the United States.

For a period of upwards of forty years, although engaged in a most extensive commerce, and the owner of numerous vessels employed, in a very large foreign trade, and in the latter part of it, the head of the greatest private bank in the Union, his life was spent in his counting-house in Water street, or in his banking-room in Third street, varied by almost daily visits to his modest farm in Passyunk. With a reputation extending over the United States and Europe, as a wealthy and successful merchant and banker, his habits were so retired, plain and frugal, that his person was unknown to many of his fellow-citizens. His fame and his name are indissolubly connected with the great charity, which creates the subject of this dispute, — his orphan college.

Stephen Girard died on the 26th December, 1831, and his will was dated the 16th February, 1830, and was republished by two accompanying codicils, dated the 25th December, 1830, and 20th June, 1831.

His will commences: “I, Stephen Girard, of the city of Philadelphia, in the Commonwealth of Pennsylvania, mariner and merchant, being of sound mind, memory, and understanding, do make and publish this my last will and testament in manner following, that is to say,” and after various devises and bequests, he proceeds in the twentieth clause of his will as follows:

“ And whereas I have for a long time been impressed with the importance of educating the poor, and by placing them by 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 nirmber of poor white male 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 objects 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, wheresoever situate, (the real estate in Pennsylvania charged as aforesaid,) unto the mayor, aldermen, and citizens of Philadelphia, in trust, and amongst others, to keep that part of the real estate situate in the city and liberties of Philadelphia, in trust,” and, amongst others, to keep that part of the real estate situate in the city and liberties of Philadelphia constantly in good repair.

The twenty-first clause provides: “And so far as regards the residue of my personal estate in trust as to two millions of dollars, part thereof to apply and expend so much of that sum as may be necessary in erecting, 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, for ever,) a permanent college, with suitable outbuildings, 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, and in supplying the said college and outbuildings with decent and suitable furniture, as well as books, and all things needful to carry into effect my design.”

Then followed minute and accurate directions for the erection of his college: “ And when the college and appurtenances shall have been constructed, and supplied with plain and suitable furniture and books, philosophical and experimental instruments and apparatus, and all other matters needful to carry,” as he say&, “my design into execution, the income, issues, and profits of so much of the said two millions of dollars as shall remain unexpended, shall be applied to maintain the college according to my directions.”

Then follow ten paragraphs; in which he directs how his college shall be organized and managed, and what orphans shall be admitted into it. They must bepoor 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 I 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.”

If the income arising from the residue of the two millions, remaining after the construction and furnishing of the college and outbuildings, shall be inadequate to the construction of new buildings, or the maintenance and education of as many orphans as may apply for admission, then such sum as may be necessary for those purposes shall be taken, from the final residuary fund: “ my design and desire being,” says the testator, “ that the benefits of said institution shall be extended to as great a number of orphans as the limits of the said square and buildings thereon can accommodate.” By the twenty-second clause, there is a trust created to the city as to a further sum of five hundred thousand dollars, the income of which is to be exclusively applied—

1. To lay out, regulate, curb, light and pave a passage or street on the east part of the city of Philadelphia, fronting the river Delaware, and to be called Delaware avenue, extending from Vine to Qedar streets, and, amongst other things, to completely clean and keep clean, all the docks within the limits of the city, fronting on the Delaware.

2. To remove and prohibit all wooden buildings within the limits of the city.

3. To widen Water street, east and west, from Vine street all the way to South street, and to distribute the Schuylkill water therein.

By the twenty-fourth clause of his will, the remainder of the residue of his personal estate is to be invested by his said trustee, the corporation of the city, and, with its accumulations, to form a permanent fund, the income of which is to be applied—

1. To the further improvement and maintenance of the college.

2. To establish a competent police for the security of the person and property of the inhabitants of the city.

3. To improve the city property, and the general appearance of the city itself, and to the reduction of taxes.

“To all which objects,” says the testator, “the prosperity of the city, and the health and comfort of its inhabitants, I devote the said fund aforesaid, and direct the income thereof to be applied yearly, and every year forever, after providing for the college, as hereinbefore directed, as my primary object.”

By his last codicil, Mr. Girard changed the location of his college from the lot on Chestnut street, to the farm called Peel Hall, on the Ridge road, in Penn township. By the Acts of the 24th March and 4th April, 1832, the mayor, aldermen, and citizens of Philadelphia were enabled to carry into effect the improvements, and to execute certain trusts contained in the will.

The corner-stone of the college was laid on the 4fch of July, 1833, and the building was finished, and the institution organized and opened on the 1st January, 1848, fourteen years and a-half afterwards; and nearly two millions of dollars were expended in its erection. By actual expenditure, and by depreciation of the stocks in which the great charity fund of two millions was invested, every dollar of this most munificent appropriation for the benefit of the poor white male orphans, the objects of Stephen Girard’s bounty, has entirely disappeared, and the college is now supported by the income of the residuary real and personal estate, which was originally devoted to other objects.

If the simple plan of Stephen Girard had been strictly followed, and if, as advised at the time, the whole of the personal property had been gradually laid out in safe mortgages, in the city and county of Philadelphia, a very large portion of the two millions would have been still remaining to maintain and increase the Girard College for Orphans, and, at the same time, have improved the whole district, by affording an additional sum to be laid out in the improvement of real estate.

The college was erected under the charge of a building committee of the Select and Common Councils, whilst a board of trustees regulated the other affairs of the institution, until it was abolished, by ordinance, on the 23d December, 1841, together with the offices of secretary to the said board, and of president of the Girard College for Orphans. By the tenth section of the ordinance of the 21st March, 1833, it was made the duty of the said trustees to prepare, as soon as practicable, and submit to Councils for their approbation, the plan of a system of government and insti’uction for the said college, “having reference to the will of Stephen Girard, so far as they are expressed in this subject.”

Dr. Francis Lieber having been charged by the trustees to draw up this plan, on the, 5th of December, 1833, submitted it to them with an introductory report, whifch were both printed by order of the board. In this report, the question of what was the meaning of the word orphan in Mr. Girard’s will, was fully and learnedly discussed, and it was settled by Dr. Lieber, after a most extensive and elaborate examination, turnean a fatherless child.

“WhenMr. Girard,”says he, “uses the word ‘orphan,’ we are sure he did not look for the etymology of the word, but used it in that sense which presented itself as the readiest in his mind. Which sense was this ? Mr. Girard, a native Frenchman, spoke much French, and better than English, throughout his whole life. It is possible, therefore, that though his will is drawn up in English, the word orphan presented itself to his mind with that meaning which orphelin has in French, because, if two languages are equally ready to a mind, as means of thought and utterance, which is much more than the capacity of speaking two languages, phenomena take place in the human mind, which can be known by personal experience only. Sometimes we think in one language, sometimes in another; sometimes we use one language, and yet transplant to certain words the meaning which belongs to their fellow words in the other language. We must then take the word ‘ orphan’ in its English -or French sense, if we wish to ascertain its precise meaning as to the will in question, and in both .languages the word orphan, in common language, means a fatherless child, as the following note, and the succeeding lines, will show; it never means anything different, if used to designate asylums, or any institutions for them. Whatever may be the poet’s use of the word ‘ orphan,’ as soon as it assumes in any degree a legal or official sense, it signifies, and very naturally so, fatherless children only.”

After discussing briefly the question whether the word “ orphan” in the will of Mr. Girard includes children who have lost their mothers only, he says: “A learned judge of our city has shown, as you are well aware, that in those few cases in which the English courts have been called upon to construe the word “ orphan,” it has been taken in the sense of a fatherless child.” In our country, as I have been informed by some of the first jurists, (Chancellor Kent and Judge Story,) “it is believed that no such official decisions exist, but that the meaning attached to the word £ orphan’ by the people at large, is unquestionably that of a fatherless child — a meaning which entirely agreed with our whole social system. I am fully aware of the paramount importance of the mother in the education of a child. This importance even increases, the farther we descend in the scale of social relations. I have enlarged upon this point in another work. But our whole social system would be overturned were we no longer to consider the father the chief of the house, the lord ’ of the family. In all civilized countries, the law justly takes cognizance of the death of a father ; it appoints guardians, it administers the property of the minors, and watches over their interests: but in no country does the law take cognizance of the death of the mother only, except in some special cases, where her property has been kept separately. The respective relations of the father and the mother to the child are founded in the necessity of things, and therefore established by Him who assigned different spheres of activity to everybody in the universe; relations and conditions against which we can never act with impunity.”

The third article of the constitution framed by Dr. Lieber says, “An orphan is a fatherless child.”

This question had been discussed in the spring of 1833, in a friendly correspondence between ex-President John Quincy Adams and Judge Hopkinson, the first maintaining that the word “ orphan” includes all those children who had lost both or either parent; the latter that it was to be confined to those who had lost their father only — in other words, the fatherless children. (14 Hazard’s Register of Pennsylvania, p. 188.)

Until 1847, annual appropriations were made out of the residuary estate for the support of the police, the improvement of the city property, and the general appearance of the city, and in effect to diminish the burden of taxation, but they ceased, of course, with the completion of the college — the erection of which had entirely exhausted the special fund of two millions.

As the time approached for the organization and opening of the college, the legislature, on the 27th February, 1847, passed an act relative to the Girard College for Orphans, by which the guardians of the poor were authorized, with the consent of the surviving mother, guardian, or next friend, of any poor white male orphan child, within this Commonwealth, between the age of six and ten years, for whose admission to the Girard College for Orphans application shall have been made, to bind such orphan child by indenture to the Mayor, Aldermen and Citizens of Philadelphia, as trustees under the will of. Stephen Girard, deceased, as .an orphan to be admitted into the said college, to be there maintained and educated, according to the provisions, and in the manner and under all the regulations and restraints directed or contained in the said will; and the said corporation of the Mayor, Aldermen and Citizens of Philadelphia, was constituted the guardian of such orphan child.

On the 27th May, 1847, Councils passed an ordinance to provide for the organization and management of the Girard College fdr Orphans, which provided for the election by Councils of a board of sixteen directors, who were to elect a president and secretary, and to submit a plan for the government and instruction of the college, to give notice of its opening, and to present estimates annually in the month of December for the ensuing year.

By another ordinance, passed 16th September, 1847, to provide for the opening of the Girard College for Orphans, the building committee were authorized to deliver possession of the college, as soon as completed, with the books, furniture, and apparatus, to the directors, who were to furnish the building from the college fund; to give thirty days’ notice of the intended opening, and who were to prepare and publish, with the notice of the intended opening, a form of application for the admission of orphans, in which the regulations of the will of Stephen Girard, in regard to the birth-place, residence and age of each applicant, his name, health, and condition, as to relatives, and other particulars useful to be known of each ■ orphan, shall be carefully observed. The ordinance then designated the officers of the institution, who were to hold their offices during the pleasure of the directors.

To the form of application for admission into the college, framed and published by the directors, áre attached several questions, among which are the following:

2. When was he born ? 3. Where was he born ? 4. What was his father’s name, and when and where did he die ? 5. Is

his mother living ? and if she is, what is her name, and where does she reside ? 10. Are there any pecuniary means, at the

disposal of his mother or other persons, for his maintenance and education ?”

The building committee was dissolved, and the members of the Select and Common Councils were constituted a standing committee of visitation of the general college for orphans, and a recording secretary was elected by the board of directors, who is removable at their pleasure, and whose duties are defined by the ordinances of the city.

The first president of the college, after its organization, was theHonorable Joel Jones ; the second and present one, Professor William H. Allen, both men of high moral and intellectual worth, and admirably fitted by temper and disposition for the administration of this noble charity.

In every annual report of the directors of the college, previous to the present dispute, the original construction given to the will, recognizing every fatherless child as an orphan, has been approved, and the whole institution has been conducted upon this principle. On January 1st, 1851, Benjamin Gerhard, Esquire, in addressing “ the board of directors and officers and pupils of the college, with the Councils of the city, and other city, county, and State officers, and numerous parents and friends of the children, and other citizens, assembled in the 'chapel of the institution,” said: “Who are orphans ?” This inquiry was answered by the counsel consulted by the corporation, that such are orphans as have lost their fathers, and the opinion was at once acquiesced in.

On the 1st January, 1850, the Hon. Joseph R. Chandler, president of the board, in addressing an audience similarly composed, says, “Another objection was, that boys long separated from maternal association and care would lose a part of that home love, that filial affection, which lies so close to the foundation of all good feeling, all pure benevolence. We have been enabled to keep the control of the conduct of these children, to direct it and them in all ways; and yet, to keep up their association with mother, sister, brother, friend, so that at no time has the chain of affection been weakened by neglect, or been allowed to rust for want of use. Home-love has been cultivated, and filial piety improved.”

On the same occasion President Allen said, “ The institution is no longer without precedents for guide, for it has established them for itself.” After drawing a beautiful picture of one of its young inmates, expiring in the arms of his mother, he says: “lam here under that being who is the God and Father of us all, to be a father to the fatherless.”

We thus see by a simple narrative of the origin and progress of this great charity, that in the commencement the only difference of opinion was, whether the term orphan did not include a motherless as well as‘a fatherless child. Upon full discussion and a deliberate examination, and after an unreserved communication with the first jurists in the United States, the settled construction adopted, and continued for a quarter of a century, was that it included fatherless but not motherless children. This was published to tbe world and sanctioned by tbe legislature, and it has entered into the whole administration of the college, from its organization and opening on the 1st of January, 1848, until the month of June, 1858, a period of more than the tenth of a century, and under the immediate eye of Jhe Gfrand Committee of Visitation, the Select and Common Councils of the city.

In the tenth annual report to the Select and Common Councils of the city of Philadelphia, the directors say: “ The condition of all orphans, now within the institution, shows that at the time of their admission, fifty-four of them had neither father nor mother, and that the remaining two hundred and eighty-one had mothers. During the ten years elapsed since, the opening of the institution) one hundred and sixteen of the orphans received into it had neither father nor mother, and five hundred and forty-two had mothers. Of the applicants for admission during the same period, two hundred and seventy-three were without father or mother, and eleven hundred and ninety-six had mothers only.

This sacred trust was confided by Stephen Girard to the Mayor, Aldermen and Citizens of Philadelphia, who, by legislative enactment, have been succeeded by the city of Philadelphia, under and subject to the general provisions in “ The Consolidation Act,” that all' the estates and incomes now held in trust by the county (present city) and each of the townships, districts, and other municipal corporations united by the act, shall be held by the city of Philadelphia upon and for the same uses, trusts, limitations, char-ties, and conditions as the same are now. held by the said corporaitions respectively.

The directors of the Girard College are the creatures of an ordinance, and are merely the agents of the real trustee, the city, and y_et in June, 1858, without (as far as it appears,) taking the written opinion of any eminent professional man, or consulting the legislative authorities of the corporation, they make an entire change in the administration of this charity, and narrow its range of objects, by excluding all children who are fatherless, but not motherless, as recipients of Stephen Girard’s bounty, by a new and restrictive meaning given to the word “ orphan.” The effect of this new regulation is simply this, — that the two hundred and eighty-one who were orphans on the 1st January, 1858, are not orphans in June, 1858, and, of course, should be expelled from the college; and that the five hundred and forty-two children admitted as orphans, since the opening of the institution were never entitled to its benefits, and have been maintained and educated by the funds of this charity, in direct violation of the will, and of the clear intention of the testator. It was a- decision that all former trustees and directors, all former councils, all the eminent jurists in this city, and in the Union, including Chancellor Kent, and Judge Story, had entirely mistaken the will of Mr. Girard; and that it was proper, immediately upon this discovery being made, to change at once the whole course of administration, and to exclude forever a very large class of orphans from all participation in the benevolence of the great benefactor of his adopted city.

In this state of affairs, it is perhaps proper to examine this question, to see if it is possible that so gross a mistake could have been committed by the very able, enlightened, and conscientious citizens, who preceded the present direction of the college.

William Penn was born in the parish called St. Catherine’s, near the tower of London, and just outside of the .walls of the city of London, on the 14th day of October, (then the Eighth month,) A. D. 1644.

By the customs of the city, if a freeman of London died intestate, possessed of personal property, more than sufficient to pay his debts and funeral expenses, his residuary estate was distributable in the following manner : After deducting for the widow her apparel, and the furniture of her bed-chamber, (which in London is called the widow’s chamber,) the property was divided into three parts, one of which belonged to the widow, another to the children, and the third to the intestate’s administrator. This custom was the remains of the old common law, and this portion which fell to the administrator, or, as it is termed, the dead man’s part or death’s part, he formerly appropriated to his own use, till the Stat. 1 Jac. II., cap. 17, declared that the same should be subject to the Statute of Distributions.

The share of a child is called the orphanage part or share, and the Lord Mayor’s Court, or Court of Aldermen of the Outer Chamber, which is a court of record of law and equity, has jurisdiction of the distribution of intestates’ estates, and the custody and education of citizens’ orphans. This branch of the equitable jurisdiction is exercised by the Mayor’s Court, in the character of a Court of Orphans, which exercises a similar control over citizens’ orphans to that which the Court of Chancery does over infants in general.

By a law made at an assembly, held at Philadelphia the 10th day of the First month (March,) 1683, it was enacted that the justices of each respective county court shall sit twice every year, to inspect and take care of the estates, usage, and employment of orphans, which shall be called the Orphans’ Court, and sit the first Third-day of the week, in the First and Eighth months yearly, that care may be taken for those that are not able to take care of themselves; which court, in the laws about testates’ and intestates’ estates, passed in 1693, is called the Qourt of Orphans.

The proprietary, in his letter of the 16th of the Sixth month, called August, 1683, thus describes this court, “ and spring and fall, there is an Orphans’ Qourt in each county, to inspect and regulate the affairs of orphans and widows.”

We perceive, therefore, that Williám Penn brought with him from the city of London, — whose customs and usages were followed in many particulars by his favorite city of^Philadelphia, — a construction of the word “orphan,” which included a fatherless child. This was the familiar understanding of the word in his days, as is proved by King James’s translation of the Bible, and by the writings of Shakspeare, which immediately preceded his birth, and which together form an ample and enduring record of pure and undefiled English.

In the sixth edition of Jacob’s Law- Dictionary, published in 1750, “ Orphan (orphanus) is a fatherless childand the same-definition is given in Tomlin’s Law Dictionary, fourth London edition, by Granger, published in 1835 ; and in Wharton’s Law Lexicon, published in London, in October, 1847, and republished at Harrisburg in 1848, in the new Library of Law and Equity, edited by Mr. Troubat, Chief Justice Lewis, and Judge M‘Candless, it is thus defined: “ Orphan — a fatherless child or minor, or one deprived of both father and mother.”

In the case of Powell v. The Attorney-General and Robert Pendleton, 3 Merivale, 48, decided July 24, 1817, by Sir William Grant, Master of the Bolls, there was a bequest of the residue of his estate by Joseph Pendleton, “.to the widows and children of seamen belonging to the town of Liverpool.” Upon a reference to the Master he reported among other charities, one under the will of Elizabeth Cain, dated the 8th of June, 1778, whereby she directed the residue of her estate to be continued at interest, or placed out on government securities, at the discretion of her executors, and, after their death, of the rectors of Liverpool, for the time being, the interest to be paid and distributed unto, and among such poor sailors’ widows and orphans, inhabitants of Liverpool, as should, in their judgment, be deserving objects of charity.

The Master of the Bolls held, that it was a valid bequest, and that the words were sufficiently descriptive of" the last of the charities mentioned in the master’s report, and a decree was made accordingly. The subject of the orphanage share, and its distribution, under the customs of London, are fully discussed by Vice Chancellor Shadwell, in Bruin v. Knott, 12 Simons, 436.

The counsel for the appellee has collected numerous instances, in which the word “orphan” is the equivalent of fatherless child, as in the Book of Lamentations, ch. 5, verse 3: “ We are orphans and fatherless, and our mothers are as widows.” In the translation of the Septuagint version, by Charles Thomson, published in Philadelphia in 1808, the verse is rendered, “We are become orphans : our father is no more : our mothers are like widows.”

In the Psalter, in the Book of Common Prayer of the Church of England, Psalm lxviii., v. 5, reads: “ He is a Father of the fatherless, and defendeth the cause of the widows : even God in his holy habitation.” In the metrical version of the Psalms in the same book, the verse is rendered — ■

5. Him from his empire of the skies,

To this low world compassion draws ;

The orphan's claim to patronize,

And judge the injured widow’s cause.

See, also, in the Psalter, Psalm lxxxii., v. 3, and in the metrical version 2 and 3, Psalm cix., v. 8 and 11, and in the metrical version by Brady and Tate, v. 9, 10, and l2.

In the English Bible, Psalm x., v. 18, and in the metrical version of the Psalms, by Francis Rous, used in the Scottish Presbyterian Church, “fatherless” and “ orphan” are used as synonymous, as also in Psalm cxl., v. 9 : “ The Lord preserveth the strangers, he relieveth the fatherless and the widow; but the way of the wicked he turneth up side dowm,” which is rendered in the metrical version:

The stranger’s shield, the widow’s stay,

The orphan's help is he;

But yet by him the wicked’s way Turned upside down shall be.

In the Litany, in the Book of Common Prayer : “ That it may please Thee to defend and provide for the fatherless children and widows, and all that are desolate and oppressed,” which is rendered in a Latin version, published in London, 1744: “ Ut orphanis omnibus et viduis, desolatis et oppressis, prospieere digneris.”

The word is originally Greek, and in Liddell and Scott’s Greek Lexicon, it is translated “ Orphaned, without parents, fatherless and in the same work it is said at Athens, the Qf>$&vo$vXasW were guardians of orphans, who had lost their fathers in war. In Ainsworth’s Quarto Latin Dictionary, published in London in 1761, an orphan is translated Uparentibus velaltero parentum orbatus.” In the first American, from the eleventh London edition of Dr. .Johnson’s Quarto Dictionary, published in Philadelphia, in 1819, it is defined, after giving the Greek and French words, “ a child who has lost father or mother, or both,” exemplified by quotations from Spenser, Shakspeare, Sandys, Waller, Dryden and Nelson.

In Allison’s Dictionary, published in 1813, at Burlington, for M. Thomas and others, the same definition is given; and Webster’s definition is substantially the same. In the American edition of Rees’ Cyclopedia, published by S. F. Bradford, Murray, Fairman & Co., orphan is one that is fatherless, or that has neither father nor mother.

One or two cases have been cited to support the proposition that an orphan is one bereft of parents. By the third section of the Act of 3d April, 1804, directing the mode of selling unseated lands for taxes, minors are allowed five years, after the disability is removed, to bring their action for the recovery of the lands. By the fourth section of the Act of 13th March, 1815, to amend the same, the words “ orphan” or “orphans” are used instead o minor. By the twentieth section of the Act of 12th April, 1842, and the third section of the Act of 25th April, 1850, (Dunlop, pp. 866, 1098,) the words “orphan” or “orphans,” in the Act of 1815, shall be construed to mean minor or minors.

(V(In the case of Sidle v. Walters, 5 Watts, 389, the word “orphan,” in the Act of 1815 is considered by Judge Rogers as the equivalent of minor. In Rockway v. Cooper, 8 Watts, 162, Judge Huston held that land held by a father in trust for an infant child was not within the exception; and in Downing v. Shoenberger, 9 Watts, 298,"published in 1841, Judge Huston gave the definition, “An orphan is one berefit of parents — a minor is one under twenty-one years of age,” prhich was entirely extrajudicial and inapplicable to the case before him, as the father and mother of the infant were both living.

The current, therefore, of English, American and French authority, being clearly in favor of the construction of the word orphan in the will of Stephen Girard, originally adopted and consistently pursued, we are necessarily brought to the conclusion that a fatherless child is an orphan, and, if born within the limits of the city of Philadelphia, as laid out by William Penn, and existing at the death of the testator, comes within the first preference which he has chosen to declare in relation to the objects of his bounty, (Beenon’s Estate, 1 Brightly’s Reports, 338; Plymouth township v. Jackson township, 3 Harris, 44; Commonwealth v. The Erie and North East Railroad Company, 2 Casey, 339.)

We have discussed this question at great length, but we have deemed it essential to the future management of this most munificent charity, founded by a philanthropic citizen, that it should be settled now and for all time to come.

The decree' is affirmed, with costs.  