"3. To carry on, by himself or through the agents whom he is hereinafter authorized to appoint, all the dealings and traffic of said society of every description.

tuting him general agent of the society in | sufficient as if executed by us or by the said all its temporal affairs, with power to ap- Frederick Rapp in his lifetime. point agents and substitutes under him. Under this power, he, on the same day, appointed Romulus L. Baker and Jacob Henrici his substitutes. This power of attor ney was signed by 402 members of the association, and with the substitution, and not including the signatures, is as follows: "Know all men by these presents: Whereas, Frederick Rapp, of Economy, in Beaver county, state of Pennsylvania, recently deceased, was for a series of years the agent in temporal affairs of the Harmonie Society, carrying on in his own name all the external business of said society, and taking to himself the titles to real estate, as well as the evidence of claims arising out of the various transactions of said society;

"And whereas, by an instrument dated the 20th of July, 1825, under the hand and seal of said Frederick, he solemnly and irrevocably declared that all the property, real, personal, and mixed, which then was or hereafter might be in his possession or enjoyment, or the title to which he then held or might hereafter hold, was and should be considered the property of the said society, in which he, the said Frederick, had no absolute interest whatsoever; And whereas, the lamented death of the said Frederick Rapp renders it indispensable that a new agent should be appointed, by whom the temporal affairs of the society may continue to be managed in a mode which has proved convenient and satisfactory;

"Now, therefore, be it known that we, the undersigned, constituting said Harmonie Society, do hereby nominate and appoint George Rapp, of Economy, in the county of Beaver, the general agent of said society in all its temporal affairs.

""The powers intended to be conferred on the said George Rapp are hereby declared to be as follows; that is to say:

"1. To ask for, demand, and receive [31]from each and every *bank or other incorporated company, partnership, or individual, person or persons, the amount which may be due therefrom, in the way of principal, interest, or dividend to the said Harmonie Society, or to Frederick Rapp, whether the same be evidenced by judgment, mortgage, bond, certificate of stock, note, bill of exchange, deposit of money, book account, verbal promise, sale or barter, loan or money, or arise in any other manner whatsoever, the check, order, receipt, acquittance, or release of the said George Rapp to be as effectual as if executed by all and each of us, or as if it had been executed by the said Frederick Rapp in his lifetime.

""2. To execute and receive all deeds and conveyances, in fee simple or otherwise, on behalf of the society, whether the title thereto stand in the name of the society, or of Frederick Rapp, or of George Rapp and associates. The act of the said George Rapp, relative thereto, to be as valid and

"4. To constitute and appoint an agent or agents under him, as he may deem advisable, imparting to such substitute or substitutes, should he think fit, the whole or any portion of the authority hereby conferred on himself. He may also, at his pleasure, revoke such instrument of substitution whenever he may think such revocation called for by the interests of the society.

""5. It is distinctly understood that in accepting and acting under this power the said George Rapp disclaims all personal interest, other than that of a member of said society, in the present resources or future earnings of the society, in conformity with the principles and terms upon which the Harmonie Society was originally founded, as fully and effectually as was done by the late Frederick Rapp in the instrument already adverted to, dated 20th July, 1825, the terms of which instrument the said George Rapp hereby adopts for himself and repeats in every particular.

""In witness whereof the undersigned members of the Harmonie *Society, who con-[32] stitute said society, have hereunto set their hands and seals at Economy, in Beaver county, this 5th day of July, in the year of our Lord, eighteen hundred and thirty-four.' (Signatures.)

66

(Acknowledgment.)

By virtue of the authority expressed in the 4th article of the foregoing power of attorney, I do appoint and substitute in my place and stead Romulus L. Baker and Jacob Henrici, of Economy, Beaver county, Pennsylvania, to act as general agents of the Harmonie Society aforesaid, jointly or severally, in my name, and for the use of the said society, to do and perform all acts said society, I am authorized to do. It beand things which, as the general agent of ing distinctly understood, however, that in accepting and performing the office and business of general agents of the said society the said R. L. Baker and Jacob Henrici shall neither acquire nor claim any personal interest in the present resources or future earnings of the said society, other than that of a member of the said society, agreeably to the plans and terms of association, but shall be considered as exercising the same trust mentioned in a declaration of trust signed by Frederick Rapp on the 20th day of July, 1825, and referred to in the foregoing power of attorney to George Rapp.'

Signed, sealed, and delivered by George Rapp.

October 31, 1836, the following agreement was executed by 391 members of the society, and afterwards accepted and adopted by 33 others:

"Whereas, the Harmonie Society, consisting of George Rapp and many others, now

established in the town of Economy, in Beaver county, Pennsylvania, did, on the 9th of March, 1827, enter into certain articles of association, of which the 6th in number is as follows, viz.: [here follows that article].

sons as the "surviving and remaining members of the Harmonie Society, and constituting the same." These articles created and nominated a board of elders of nine members, with the power of filling vacancies, and a board of trustees, consisting of "And whereas, the provisions of the said two members of the board of elders, which 6th article, though assented to at the time, had power to fill vacancies in the trusteemanifestly depart from the great principle ship. Instead of a single patriarch, a dual of a community of goods, and may tend to patriarchy was substituted, and those boards foster and perpetuate a feeling of inequali-alone had the power over and control of the ty at variance with the true spirit and objects of the association; (83) "And whereas, the principle of restoration of property, besides its pernicious tendency, is one which cannot now be enforced with uniformity and fairness, inasmuch as the members of the association, in the year 1816, under a solemn conviction of the truth of what is above recited, did destroy all record and memorial of the respective contributions up to that time;

"And whereas, continued happiness and prosperity of the association, a more intimate knowledge of each other, have removed from the minds of all members the least apprehension of injustice and bad faith;

"Now, therefore, be it known by these presents, that the undersigned, with a view to carry out fully the great principles of our union, and in consideration of the benefits to be derived therefrom, do hereby solemnly enter into covenants, and agree with each other, as follows:

"1st. The said 6th article is entirely annulled and made void, as if it had never existed; all others remain in full force as

heretofore.

"2d. All the property of the society, real, personal, and mixed, in law or equity, and howsoever contributed or acquired, shall be deemed, now and forever, joint and indivisible stock. Each individual is to be considered to have finally and irrevocably parted with all his former contributions, whether in land, goods, money, or labor; and the same rule shall apply to all future contributions, whatever they may be.

"3d. Should any individual withdraw from the society or depart this life, neither he in the one case nor his representatives in the other shall be entitled to demand an

account of said contributions, whether in land, goods, money, or labor, or to claim anything from the society as a matter of right. But it shall be left altogether to the discretion of the superintendent to decide whether any, and, if any, what, allowance shall be made to such member, or his representatives, as a donation.

"Invoking the blessing of God on this sacrifice of all narrow and selfish feelings to the true purposes of the association, and to the advancement of our own permanent prosperity and happiness, we have signed [34] the foregoing instrument, and affixed there unto our respective seals, at Economy, this 31st day of October, 1836."

George Rapp, sole patriarch and ruler, died in 1847, and thereupon, in that year, certain articles were subscribed by 288 per

property.

The 8th article was as follows:

"It is hereby distinctly and absolutely declared and provided, that all the property, real, personal, and mixed, which now or hereafter shall be held or acquired by any trustee or trustees, or person under them, is and shall be deemed the common property of said society, and each trustee now or hereafter appointed hereby disclaims all personal interest in the present resources and future earnings of the society, other than that of a member thereof, according to the articles of association hereby established and continued, and according to the present government."

From these documents it appears that, prior to October 31, 1836, all contributions of property were for the use and benefit of the community on the condition that any member withdrawing was to receive back the value of his contributions.

But that, by the contract of 1836, the held subject to reclamation on the basis of property then held in trust was no longer original contribution, but the whole aggregate was made a common fund in which each member was equally interested, subject to the previously existing trust for the use and benefit of the society; that the corpus of the trust property included all future contributions, accretions, and accumulations; and that the then and subsequently admitted members occupied the relation of donors, and the society, as a society, of donee.

The joint and indivisible stock embraced the trusts declared in the articles of 1827, all present and future *property, subject to [35] which were reaffirmed in 1836, except the 6th article. That trust was described "as a free gift or donation for the benefit and use of the said association." And by the agreement of 1847 the property was to be held and deemed the common property of said society, and each trustee disclaimed all personal interest therein, "other than that of a member thereof."

If, then, the trusts are defeated, I concur in the view that the trust property must go either to the owners or donors living, and to the heirs and legal representatives of those who are dead, by way of resulting trust; or to the surviving members of the society, as joint tenants with right of survivorship, or by way of tontine.

It is true that the third clause of the agreement of 1836 provided that, on withdrawal or death, no member or his representatives should be entitled to an account or "to claim anything from the society as

tles, and wherein the single object sought is to approximate, so far as human imperfection may allow, to the fulfilment of the will of God, by the exercise of those affections and the practice of those virtues which are essential to the happiness of man in time and throughout eternity."

As the membership diminished, the wealth increased, but not from contributions by new members; and operations were carried on by hired labor.

Not one of the eight contributed to the three or four millions of property accumulated. It is conceded that Duss alone is the active member. But he is not the society, nor does the society, in respect of its avowed principles, any longer exist.

board of trustees, nor all together, possessed the power voluntarily to formally dissolve the association; and it is for a court of equity to adjudge whether a condition of dissolution, or a condition requiring winding up, is, or is not, created by acts done or permitted.

Such being, in my opinion, the condition here, the trust property must go, as I have said, either to the surviving members as joint tenants, with right of survivorship, or by way of tontine; or to the owners donors living, and to the heirs and legal representatives of those who are dead, by way of resulting trust.

or

It is inconceivable that the creators of the trust contemplated any such result, when they sought to perpetuate Christian fellowship by the renunciation of their property.

Appellees contend for the first of these propositions. Their counsel says in his Moreover, the transactions by which sev- brief: "It is the society, as a society, which enteen members of the society, not old and owns this property. It is the entire body infirm, but vigorous and capable, were as one whole. If at any time the society bought out, were in themselves acts of li- did dissolve, its property would go to the quidation. It is idle to say that these pay-persons who then were its members. No ments were "donations" to withdrawing one else has any legal or equitable claim members. They were purchases in terms to it except those members. To them, and and in effect. They were settlements by to them alone, it would belong, and among agreement, instead of through litigation. them it would be divided." Finally, substantially the entire property of the society and its affairs have been turned over to a corporation created under the laws of Pennsylvania, authorized to purchase and sell land. This corporation has none of the powers confided by the articles *The present membership has shrunk to[40] of 1847 to the board of elders and the board eight members, less than enough to fill the of trustees. It has no power to feed, lodge, board of elders, and that board consists of maintain, and support, or to care for the Duss and his wife, an old man and five spiritual welfare of, members of the soci- women, aged or ignorant. Practically, Duss ety, or to perform any of the duties imposed is the last survivor, and he claims the ownupon the boards. The trustees have no dis-ership of this vast estate as such survivor. tinct title to the society's property, but only the rights pertaining to the stock of the Union Company. All the industries carried on in Economy are carried on by tenants and lessees of the Union Company, and the society has ceased to possess the power to carry out the purposes for which its property was accumulated.

By the articles, no period was fixed for the termination of the life of the society. There is no remainder over, nor provision of any kind for the disposition of the trust estate in the event of the society's extinction.

Joint tenancy with survivorship, or tontine, excluding all but living members and casting accumulations on the survivor, are neither of them to be presumed. They are the result of express agreement, and there is none such in these documents.

The affairs of the Union Company must be [39]wound up under the state statutes in that behalf, and proceeds derived from the lands by sale or otherwise would go to the stockOn the contrary, this property was held holders by way of dividends. The legal ef- in trust for the use and benefit of the sofect of the transaction was the same as a ciety, as a society, and not for the individsale, out and out, for cash, and it was ir-ual members. The trust was for the use revocable. And this point so arises on the and benefit of the society in the mainterecord that it must be disposed of as mat-nance of its principles as declared by its conter of law.

subjected it to the trust, living, and to the heirs and legal representatives of those of them who are dead.

stitution and laws. When the purposes of The master found, as matter of law, that the society were abandoned or could not be the society continued to exist because the accomplished, or the society ceased to exist, surviving members had not formally de- the trust failed, and the property reverted, clared it to be dissolved, and that the pur-by way of resulting trust, to the owners who poses and principles of the society could not be held to have been abandoned, unless by the formal action of all its members. But this could only be so on the assumption that This conclusion does not involve the asthe scheme of the trust created a joint ten- sertion of a reversion secured by the express ancy with the right of survivorship, or a terms of the contracts, but rests on the fasystem of tontine; and that a single surviv-miliar principle of equity jurisprudence, ing member might be the society, although that when the trust clearly created by the to the integrity of a community numbers are essential. By the articles, neither the members, nor the board of elders, nor the

documents terminated, a resulting trust arose to the grantors or donors, or their heirs. The distinction is thoroughly eluci

dated by Mr. Justice Gray in Hopkins v. Grimshaw, 165 U. S. 342, 41 L. ed. 739, 17

creditors as a condition of preference is determinable by the state law as interpreted by its highest courts.

Sup. Ct. Rep. 401. It was there said, among 2. The courts of the Indian territory are bouud other things:

"But the trust was restricted, in plain and unequivocal terms, to the particular society to be benefited, as well as to the purpose of a burial ground, adding (as if to put the matter beyond doubt) and for no other purpose whatever.' The trust would end, therefore, at the latest, when the land ceased to be used as a burial ground and the society was dissolved. . .

"In the case at bar, the trust created by [1]the deed having *been terminated, according to its express provisions, by the land ceasing to be used as a burial ground, and the dissolution and extinction of the society for whose benefit the grant was made, there arises, by a familiar principle of equity ju risprudence, a resulting trust to the grantor and his heirs, whether his, conveyance was by way of gift or for valuable consideration."

The titles held by the trustees in this case

3.

4.

to respect the decisions of the supreme court of Arkansas interpreting laws of that state which were adopted and extended over the Indian territory by the act of Congress of May 2, 1890.

An assignment for the benefit of creditors, although requiring a release by creditors as a condition of preference, must be deemed valid in the Indian territory, in view of the decisions of the courts of Arkansas uphold. ing such assignments under the statutes of that state concerning assignments for the benefit of creditors and the statute of frauds, which were adopted and extended over the Indian territory by the act of Congress of May 2, 1890 (26 Stat. at L. 94, § 31).

Objections to the validity of an assignment for the benefit of creditors for want of acceptance, and to the form of the judgment, cannot be raised for the first time in the Supreme Court of the United States.

[No. 46.]

1902.

were held for the benefit and use of the so- Argued May 2, 1902. Decided October 27, ciety in the maintenance of its principles. When the purposes of the trusts failed the property reverted, not because of special was the result of the termination of the provision to that effect, but because that

trusts.

Complainants, or some of them, are the heirs and next of kin of members who signed the articles of 1836 and 1847, and who died in fellowship. The service of one of these families is said to aggregate three hundred years of unrequited toil. They are entitled to invoke the aid of the court in the winding up of this concern, and these decrees ought to be reversed.

I am authorized to state that Mr. Justice Brewer concurs in this dissent.

J. M. ROBINSON & CO., Plffs. in Err.,

v.

JOHN C. BELT et al.

to review a judgment affirming a judgment ERROR to the United States Circuit Court of Appeals for the Eighth Circuit of the Court of Appeals of the Indian Territory which had affirmed the judgment of the United States Court for the Northern District of that Territory sustaining an interplea by an assignee for the benefit of creditors to recover property attached by a creditor of his assignor. Affirmed.

See same case below, 40 C. C. A. 664, 100 Fed. 718.

Statement by Mr. Justice Brown:

This was a writ of error to a judgment of the circuit court of appeals for the eighth circuit affirming a judgment of the court of appeals of the Indian territory, which latter court affirmed the judgment of the United States court for the northern district of such territory, sustaining an interplea by one King to recover the value of certain property attached and sold by RobCourts-state laws as rules of decision-inson & Co., which had been conveyed to assignments for the benefit of creditors-King as assignee by a deed of assignment release as condition of preference-ap-made by his codefendant Belt. peal-objection not raised below.

(See S. C. Reporter's ed. 41-50.)

1. The validity of an assignment for the benefit of creditors which requires a release by NOTE.—As to state laws as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; and Griffin v. Overman Wheel Co. 9 C. C. A. 548.

As to when United States Supreme Court follows decisions of state courts-see notes to Forepaugh v. Delaware, L. & W. R. Co. (Pa.) 5 L. R. A. 508; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; and Elmendorf v. Taylor, 6 L. ed. U. S. 290.

On the necessity of raising objections in the lower courts-see notes to O'Neill v. New York.

O. & W. R. Co. (N. Y.) 5 L. R. A. 591; State v. Hope (Mo.) 8 L. R. A. 608; and Phelps v. Mayer, 14 L. ed. U. S. 643.

The facts of the case are substantially as follows: of Arkansas, who was engaged in business One John C. Belt, a resident in the Indian territory, on December 29, 1891, made an assignment for the benefit of his creditors to King, as assignee.

On the following day "J. M. Robinson & Co.," plaintiffs in error, brought suit against Belt in the United States court in that territory, sued out an attachment, and levied upon the property assigned. Belt failed to plead, and judgment by default was taken against him, and the attachment sustained.

On May 31, 1892, defendant in error King filed an interplea, *setting out his deed [43] of assignment, and claiming the property as his by virtue of such deed. After so doing