In the case of Burt v. Oneida Community, 137 N. Y. 346, 353, 33 N. E. 307 (19 L. R. A. 297), the court stated the character of the society to be as follows:

"Necessarily the basic proposition of such a community was the absolute and complete surrender of the separate and individual rights of property of the persons entering it, the abandonment of all purely selfish pursuits, and the investiture of the title to their property and the fruits of their industry in the common body, from which they could not afterwards be severed or withdrawn, except by unanimous consent. It was fashioned altogether according to the pentecostal ideal, that all who believed should be together and have all things common."

The court then said, page 351 of 137 N. Y., page 308 of 33 N. E. (19 L. R. A. 297):

"These were the main features of the organization to which the plaintiff voluntarily became a party. It is not shown or found that he was induced to enroll himself among its members by any fraud or duress; and, in viewing it solely as a business undertaking, it was not prohibited by any statute or in contravention of any law regulating the possession, ownership or tenure of property. It imposed no unlawful restraint upon the alienation of property, for the title to its real estate could be conveyed at any time by the united action of its members if they so willed it. It was a joint holding of property by the adult members of the community, with this qualification: That upon the death or withdrawal of a member no share of interest therein passed to him or his personal representatives, but they who survived or remained continued to hold jointly the entire property in solidum."

In the case of Waite v. Merrill, 4 Me. 102, 118, 16 Am. Dec. 238, the plaintiff withdrew from the community of Shakers, and attempted to recover the value of his services while such a member on the ground that his contract of membership was void. The court said:

"It is said that it is void, because it deprived the plaintiff of the constitutional power of acquiring, possessing, and protecting property. The answer to this objection is that the covenant only changed the mode in which he chose to exercise and enjoy this right or power; he preferred that the avails of his industry should be placed in the common fund bank of the society, and to derive his maintenance from the daily dividends which he was sure to receive. If this is a valid objection, it certainly furnishes a new argument against banks, and is applicable, also, to partnerships of one description as well as another. It is said that the covenant or contract is contrary to the genius and principles of a free government, and therefore void. In support of this objection, it is contended that the covenant is a contract for perpetual service and surrender of liberty. Without pausing to inquire whether a man may not legally contract with another to serve him for 10 years as well as 1, receiving an acceptable compensation for his services, we would observe that by the very terms of the fourth and fifth articles, a secession of members from the society is contemplated, and its consequences guarded against in the fifth by covenants never to make any claim for their services, against the society."

And again on page 120 of 4 Me. (16 Am. Dec. 238):

"Again it is urged that the covenant is void, because its consideration is illegal; that it is against good morals and the policy of the law. We appre hend that these objections cannot have any foundation in the covenant itself; for that is silent as to many particulars and peculiarities which the counsel for the plaintiff deems objectionable. The covenant only settles certain principles as to the admission of members; community of interest; mode of management and support; acquisition and use of the property; stipulation in respect to services and claims; professions of a general nature as to the faith of the society; and a solemn renewal of a former covenant and ap 179 F.-10

pointment of certain officers. Now, what is there illegal in its consideration, or wherein is it against good morals or the policy of the law? It does not contain a fact or a principle which an honest man ought to condemn; but it does contain some provisions which all men ought to approve. It distinctly inculcates the duty of honest industry, contentment with competency, and charity to the poor and suffering."

The case of Gass & Bonta v. Wilhite, 2 Dana (Ky.) 170, 180, 26 Am. Dec. 446, had to do with another community of Shakers. It was held that seceding members had no right in or to the community property. The court said:

"So long as piety is recognized, by common assent, and by the Legislature, as a valuable constituent in the character of our citizens, the general law must foster and encourage what tends to promote it. In legal estimation, it must be viewed, as what is not only estimable in itself, but as an appurtenance to the characters of individual citizens, of great value to society, for its tendency to promote the general weal of the whole community. By the common assent of men in all time, it seems to be agreed that societies or communities of individuals, having its cultivation for their principal object, are necessary, or at least proper, auxiliaries to its support and propagation."

Schwartz v. Duss, 93 Fed. 529, decided by the Circuit Court for the Western district of Pennsylvania, involved the Harmony Society, the same organization which appeared in Schriber v. Rapp, supra, and in Baker v. Nachtrieb, 19 How. 126, 15 L, Ed. 528. In Schwartz v. Duss, the court said on page 530 of 93 Fed.:

"In view of the decision of the Supreme Court of Pennsylvania in Schriber v. Rapp, 5 Watts, 351 [30 Am. Dec. 327], and the decisions of the Supreme Court of the United States in Goesele v. Bimeler, 14 How. 589 [14 L. Ed. 554], and Baker v. Nachtrieb, 19 How. 126 [15 L. Ed. 528], it is clear that the aboverecited articles of agreement are valid contracts, and that thereunder, upon the death of a member of the society in fellowship, no claim, enforceable against the society or its property, passes to his heirs or personal representatives, and that since 1836 no member voluntarily withdrawing from the society could acquire any such claim."

And speaking of persons who continued in the society until their death, as did Wirth in this case, the court also said on the same page:

"The other persons through whom the plaintiffs claimed remained with the society and died in fellowship. They thus received and enjoyed all the benefits secured to them by the recited articles of agreement, and therefore no rights, enforceable against the society, passed from them to their heirs or personal representatives."

The decree in that case was affirmed by the Circuit Court of Appeals of the Third circuit (103 Fed. 567, 43 C. C. A. 323), and by the Supreme Court in 187 U. S. 8, 26, 23 Sup. Ct. 4, 10, 47 L. Ed. 53. The Supreme Court, in affirming the judgment, said:

"That agreement was the affirmation and the continuation of the prior agreements, and they were held not to be offensive to the public policy of Pennsylvania, by the Supreme Court of that state in Schriber v. Rapp, 5 Watts, 351 [30 Am. Dec. 327]. The trial court in that case had instructed the jury that there is nothing in the articles of association (those of 1805, 1821, and 1827) given in evidence that renders the agreement unlawful or void; nothing in them inconsistent with constitutional rights, moral precepts, or public policy.' The Supreme Court observed that the point made against the articles as being against public policy was attended with no difficulty, and Chief Justice Gibson said for the court: 'An association for the purposes expressed is prohibited neither by statute nor the common law.' And it did not

occur to this court in Baker et al. v. Nachtrieb, 19 How. 126 [15 L. Ed. 528], to treat them as invalid contracts. See, also, Goesele v. Bimeler et al., 14 How. 589 [14 L. Ed. 554]; Speidel v. Henrici, 120 U. S. 377 [7 Sup. Ct. 610, 30 L Ed. 718]."

Some of the questions here involved were before the Circuit Court of the Southern district of New York, where a demurrer to a bill very similar to the bill in this case was overruled. Benziger v. Steinhauser (C. C.) 154 Fed. 151.

No one of the cases cited by the defendant shows that the contract evidenced by the complainant's charter, constitution, and by-laws is contrary to public policy. The one that comes nearest to it is Baltimore Humane Society v. Pierce, 100 Md. 520, 60 Atl. 277, 70 L. R. A. 485. It was there held that the contract by which Pierce agreed on entering a Home for Aged Men to convey to the society all property which he might thereafter acquire by device or legacy was void as against public policy. Without passing upon the soundness of this decision, it is enough to say that it furnishes no support for the proposition that after Pierce's death his executor could have recovered from the home the value of the services which Pierce might have rendered to it in consideration for his support during his life.

I conclude that the contract here involved was not void as being against public policy, or for any other reason, and that it was binding on Wirth at his death and upon his heirs now, unless it was in some way modified in his lifetime. The claim of the defendant is that there was such modification.

Father Wirth was an author of some repute, and for a long time prior to his death published many of his works. He made a contract in 1897 with Benziger Bros., publishers, by which they agreed to publish his books and pay him a royalty thereon. Father Wirth procured in his own name copyrights on some of these books. It is proven beyond doubt that not only the money paid to Father Wirth by Benziger Bros., but also all which he received from the sale of his books, he kept and used during the latter years of his life, turning none of it over to St. Mary's Abbey. It is also proven that while the Abbot required Father Wirth to account for moneys which he received for his services in the different churches with which he was connected, the Abbot never required him to account for any of the money which he received from the sale of his books. It is also proven that the Abbot of St. Mary's knew of the contract between Benziger Bros. and Father Wirth, and knew also, that before that time Father Wirth had received and was receiving money from the books which he published. The testimony also shows, both that of the complainant and that of the defendant, that Wirth was given permission by the order to use the money which he received from his book. There is some controversy in the evidence, however, as to the precise terms of that permission. That it was oral is proven. The testimony of the complainant is that the permission was simply that Father Wirth might himself dispose of the money for charitable purposes, instead of turning it over to the Abbey. Of the witness for the defendant upon this point, only two need be considered-Rose Schneider and Elizabeth Wirth. The testimony of Florian Wirth, the husband of Elizabeth Wirth, one

of the heirs, upon this point is not entitled to any weight, for although he said in several places that Father Wirth told him that he had permission to use the money derived from his books for any purposes he saw fit, yet he said at two different places that Father Wirth never said anything to him about the disposition which should be made of this money. Rose Schneider testified that Father Wirth told her that whatever he earned with his pen was his own, and that he had received permission from the Abbot. Elizabeth Wirth testified that Father Wirth told her that he had permission from the Abbot to write books, and that he could do with the money what he liked. I find, however, as a fact, that the permission was to use the money only for charitable purposes. The evidence does not justify a finding that there was a permission that the money which he received from the sale of his books should belong to him as an individual. Such a permission would be entirely inconsistent with the vow of poverty, the fundamental idea of the order, and it would be beyond the power of the Abbot to give. There is nothing in the charter, constitution, or by-laws which authorizes the Abbot to single out one of the monks, and say to him that all or a part of what he earned might belong to himself. The effect of the permission that was given was to make Wirth the agent of the order in disposing of the money in charity, which agency terminated with his death. Whatever he had thus disposed of, the complainant would be estopped from recovering now. But the permission falls far short of an agreement that whatever he left should after his death belong to the heirs and not to the order. The permission being thus stated, namely, to use the money for charitable purposes, the argument of the defendant, based upon the practical construction of the contract by the parties, laches, and estoppel, loses its force. While it is proven that the Abbot knew that Wirth was receiving the money, and that he had invested it in his own name, yet there is nothing to show that he ever knew that Wirth claimed it as his own so that it would go to his heirs at his death. It is very apparent that Father Wirth was treated with a great deal of consideration by the Abbot and other members of the order. The explanation of this is found in his age, the state of his health, his ability, and the distinguished services which he had rendered to the order.

From what has been said it appears that the contract was valid, and that as made originally it continued until Wirth's death. By it, all that he acquired during his lifetime became the property of the order. Even that which he paid out he paid out, not as his own, but as the money of the order. When he died everything that he left belonged to the order, and though the title to it stood in his name, that fact did not make it the property of his heirs. It was the property of the order, and a court of equity could compel the heirs and administrator to account therefor.

Some objections to granting the complainant any relief are made by the defendant, based upon the statute of limitations and the probate law of Minnesota. One of these objections is that the complainant never presented its claim to the probate court.

Section 3730, Rev. Laws Minn. 1905, provides in part, as follows:

"All claims against the estate of a decedent, arising upon contract, whether due, not due, or contingent, must be presented to the court for allowance, within the time fixed by the order, or be forever barred."

That the claim of the order was not a provable claim under this section is very clear. It does not claim damages for breach of a contract, but claims the property itself. It claims, for example, to be the equitable owner of the real estate situated in Minneapolis, and of the copyrights, and of the notes now in the possession of the administrator. The claim of a third person that he is the owner of property in the hands of an administrator is not a claim that is within the jurisdiction of the probate courts of Minnesota. Mousseau'v. Mousseau, 40 Minn. 238, 41 N. W. 977. The case of Jorgenson v. Larson, 85 Minn. 134, 88 N. W. 439, cited by the defendant, was not an action for specific performance, but was a claim for damages. The plaintiff in that case by virtue of his executory contract signed only by the husband, was never the owner, legal or equitable, of the wife's one-third interest in the property. As the claim in this case was not a provable one, it is not necessary to consider the case of Security Trust Company v. Black River National Bank, 187 U. S. 211, 23 Sup. Ct. 52, 47 L. Ed. 147, cited by the defendant, nor his argument based thereon, to the effect that the laws of Minnesota relating to proof of claims are binding upon the national courts sitting therein.

The defendant also relies upon section 3733 of the Revised Laws of Minnesota. That section is as follows:

"No action at law shall lie against an executor or administrator for the recovery of money upon any demand against the decedent allowable by the probate court, and no claim against a decedent shall be a charge upon his estate unless presented to the probate court for allowance within five years after his death: Provided, that nothing in this section shall be construed as preventing an action to enforce a lien existing at the date of decedent's death, nor as affecting the rights of a creditor to recover from the next of kin, legatees, or devisees to the extent of assets received."

The claim here in question not being a provable claim, the first part of the section does not apply, nor does the last part of the section apply for the same reason. That part is not, as the defendant claims, entirely without limitation. It is qualified by the nature of the claim, for it assumes that it is a claim which may be allowed by the probate court. The section itself on its face, as well as its history, shows, too, that it contemplates a lien upon the estate by virtue of proceedings in the probate court, and not in courts of general jurisdiction.

The defendant also claims that the suit is barred by the general statutes of limitation of Minnesota. Section 4076, Revised Laws of Minnesota. The limitation is one of six years. Wirth died December 16, 1901. The bill was filed on August 19, 1907, and therefore within six years from his death.

As has been before said, the relations between Wirth and the order were such that all that he acquired belonged to the order. As agent of the order, he had a right to dispose of for charitable purposes the money which he derived from his books, but the part of his money which at the time of his death he had not disposed of then was, as it always had been, the property of the order. No cause of action there