Opinion by
Mb. Justice Heydrtck,
The ground upon which the appellants invoke'd the jurisdiction of the orphans’ court was that the city of Philadelphia, having received a legacy from the executors of Dr. Franklin *449under a void bequest, a trust thereupon resulted in favor of his residuary legatees as to the money so received, of which the city, ipso facto, became trustee, and, as such, subject to the jurisdiction of that court. It is not denied that the city received the legacy upon the trusts declared in the will of Dr. Franklin, and it may be admitted for the present purpose that the trust for accumulation was illegal, and the bequest for that reason void. It does not, however, necessarily follow that the fund was impressed, in the hands of the city, with a trust in favor of the residuary legatees or the legal representatives of the testator, or that the city, in virtue of its acceptance of it, became a trustee for the appellants, and, as such, liable to account to them in the orphans’ court. The relation of trustee and cestui que trust involves duties, obligations and liabilities upon the one side as well as rights upon the other, and therefore it is that the question whether that relation has been established must depend primarily upon a question of capacity or passive power to accept the trust and assume the obligations inseparable from it. Accordingly it has been laid down generally that a trustee should be a person capable of taking and holding the legal estate and possessed of natural capacity and legal ability to execute the trust: 1 Lewin, Trusts, c. 3, § 2. If the city of Philadelphia had not capacity to take the fund and administer it for the benefit of the residuary legatees of Dr. Franklin, it could not, and never did, become their trustee in respect to it. A municipal corporation, like a private corporation, is a legal entity, existing only in contemplation of law and in virtue of law. Being the creature of law, it can have only those capacities which are imparted, and exercise only those powers which are expressly or by necessary implication granted to it. Its objects being governmental, its appropriate functions are all necessarily governmental. In the absence therefore of an express grant of power to accept and hold property upon purely private trusts, and to execute such trusts, it can no more do so than can a nonentity. Indeed, as to everything dehors its legitimate field of operations, it is as if it were not. Instances are not wanting in which municipal corporations have executed trusts committed to them by private persons, but these have been for public purposes, germane to the objects of the corporation, and they have been upheld *450for that reason. Commenting upon Gloucester v. Osborn, 1 H. L. *272, in which it was said that a municipality may take and hold for purposes altogether private, Secajs.S'WOOD, J., said in Philadelphia v. Fox, 64 Pa. 169" court="Pa." date_filed="1870-01-10" href="https://app.midpage.ai/document/philadelphia-v-fox-6233757?utm_source=webapp" opinion_id="6233757">64 Pa. 169: “ But the administration of such trusts, and the consequent liabilities incurred, are altogether inconsistent with the public duties imposed upon the municipality. It could hardly be pretended, I think, in this country, that it could be a trustee for the separate use of a married woman to educate the children of a donor or testator, or to accumulate for the benefit of particular persons. It certainly is not compellable to execute such trusts, nor does it seem competent to accept and administer them.” The same thought was evidently in the mind of the court in Mayor v. Elliott, 3 Rawle, 170" court="Pa." date_filed="1831-03-21" href="https://app.midpage.ai/document/mayor-of-philadelphia-v-elliott-6314443?utm_source=webapp" opinion_id="6314443">3 Rawle, 170.
It has not been shown that the city of Philadelphia was expressly authorized by its charter to accept and administer trusts for other than public purposes, germane to the objects for which it was created; and as its agents could not commit it beyond the scope of its powers, which is necessarily the utmost limit of their powers, it follows that when they received the legacy from Dr. Franklin’s executors they did not thereby and for it accept a trust in favor of the residuary legatees. That a resulting trust and the consequent duties of the trustee are not necessarily dependent upon the intention of either the donor or trustee, but may be implied independently of and contrary to both, does not militate against this proposition. Where a trust is implied contrary to intention, as would be the case here, the implication is a fiction of the law invented to prevent a failure of justice. But the law will not resort to a fiction that will defeat its own policy bjr converting into a trustee a municipal corporation from which it has, for the public good, withheld capacity to accept and administer the trust. The relation of trustee and cestui que trust never having been established between the city of Philadelphia and the residuary legatees, it follows that the orphans’ court has not jurisdiction to compel the former to account to the latter. This view renders it unnecessary to consider the other questions which were argued with great ability and learning by the counsel of the respective parties.
The decree of the court below dismissing the appellants’ petition is affirmed.