1902.

SCHWARTZ v. Duss.

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 [20]account of said contributions, whether in land, goods, money, or labor, or to claim anything from the society as 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."

and well being of the association, that some
plan should be agreed upon to regulate its
future affairs, promote its general welfare,
and preserve and maintain it upon its origi-
nal basis;" and announced to all immedi-
ately concerned, that the surviving and re-
maining members of the Harmony Society
each covenanted with all the others thereof,
and with those who should thereafter be-
come members, "to solemnly recognize, re-
establish, and continue the articles of our
*association (the 6th section excepted), en-[21]
tered into at Economy on the 9th day of
March, A. D. 1827.”

This agreement created a board of elders
of nine members to conduct the internal af-
fairs of the society, and a board of trustees
of two members to conduct its external af-
fairs. The trustees disclaimed any greater
personal interest in the property of the so-
ciety than other members.

These agreements, the master found, “are the agreements and documents under which, or some of which, the plaintiffs claim the right to share in the property and assets of the society as heirs of former members." And as to the relations of the plaintiffs to the society, the master found as follows:

"1st. That none of the plaintiffs were ever members of the society.

"2d. That all of those members of the society through whom Christian Schwartz claims as their heir signed the agreements of 1836 and 1847, and continued members until their death.

"3d. That Antony Koterba claims as heir

The agreement was signed by all who were
then members, and subsequently by thirty-of his father, Joseph Koterba, and his half-
three others.

Prior to his death, in 1834, Frederick
Rapp, a member of the society, had been its
business agent, and transacted its external
affairs. After his death the members of
the society (July 5, 1834) executed a power
of attorney to George Rapp, constituting
him such general agent, with power to ap-
point agents and substitutes under him.
On the same day he appointed Romulus L.
Baker and Jacob Henrici his substitutes.
This power of attorney was signed by 402
members, and recited the death of Freder-
ick Rapp, and the consequent necessity for
the appointment of a new agent, so that the
temporal affairs of the society would con-
tinue to be managed in a mode which had
proved convenient and satisfactory, consti-
tuted George Rapp such agent with power of
substitution, invested him with all neces-
sary powers, including the receipt and the
execution of conveyances of real and per-
sonal property. George Rapp disclaimed
any greater interest in the then resources or
future earnings of the society than other
members.

brother, Andreas Koterba; that Joseph Ko-
terba joined in the organization of the so-
ciety, and also signed the agreement of 1827,
and afterwards, in 1827, withdrew from the
society; and that Andreas Koterba signed
the agreements of 1827, 1836, and 1847, and
died a member of the society.

"4th. That the grandparents of David Strohaker, viz., Christian Strohaker and wife, and Matthias Rief and wife, joined the society in 1805, and all remained members until their death, all dying between 1820 and 1825, except Mrs. Rief, who died between 1830 and 1836. That his father, Christopher Strohaker, signed the agreement of 1827, and withdrew from the society in 1827. That his aunt, Catharina Strohaker, signed the agreements of 1827, 1836, and 1847, and continued a member of the society until her death.

"5th. That Lawrence Scheel and Jacob Scheel, ancestors of Allen and G. L. Shale, joined the society in 1805; that Lawrence withdrew in 1824 or 1826; that Jacob Scheel signed the agreement of 1827, and died, a member, about 1837.

*"6th. That none of the parties through [22] whom the plaintiffs claim contributed any money or property to the society."

He divided the persons from whom the plaintiffs claim as follows:

George Rapp was the founder of the society, and continued to be its head, or superintendent, and to rule and govern it until his death, in 1847. After his death another agreement was executed (August 12, 1847). "1st. Those withdrawn from the society It was signed by 280 members. The agreement recited the death of Rapp, and ex-before the execution of the agreement of pressed the necessity, "to the good order 1836.

57

that time.

"3d. Those who died members of the society after having joined in the agreements of 1836 and 1847."

in

"2d. Those dying in the society before | the community," and to hold their "children and families to do the same." And for compensation they received instruction church and school. They received assurance of maintenance "in healthful days," and days which might not be such; and assurance, when death should come to them,

Manifestly, the plaintiffs cannot have other rights than their ancestors, and the rights of the latter depend upon the agree-that their families would be taken care of. ments they signed. The agreements we have recited. The signers of them certainly strove to express their meaning clearly, and, whenever occasion arose, declared their understanding, aims, and purposes, and ways substantially in the same way. The cardinal principle of the society was self-abnegation. It was manifested, not only by submission to a religious head, but by a community, instead of individual, ownership of property, and the dedication of their labor to the society. The possibility of some member or members not being able to "stand to it," to use the expressive phrase of the agreements, was contemplated, and provision was made for that event. But a very significant difference was made between a performance of service and the contribution of property. For the former it was covenanted by the members no reward should be demanded for themselves or their children or those belonging to them. As to the latter, George Rapp and his associates promised to refund the value of the property brought in, without interest, in one, two, or three annual instalments, as the same might be large or small. It was, how ever, provided, as to those who "were poor and brought nothing to the community," that they should receive, if they departed openly and orderly, "a donation in money, according to his or their conduct while a member, or as his or their circumstances might require," as "George Rapp and his associates shall determine" (agreement of 1805); as "in the judgment of the superintendents of the association" (agreement of

It may be presumed that, as the members were faithful to their covenants, the society was faithful to its covenants, and there were no undischarged obligations or rights for al-distant relatives of deceased members to assert or claim against the community or its property. This seems to be conceded by to the consideration of the third class into counsel for petitioners, and we are brought which the master divided the persons from whom some of the petitioners claim to derive, those who died members of the society, after having joined in the agreements of 1836 and 1847.

Counsel for petitioners say in their brief: "The article of 1836 is the only material article bearing upon the property rights of the plaintiffs, while the articles of 1805, 1821, 1827, and 1847 are material in considering the character of the trust, the purposes and principles of the society."

In other words, as we understand counsel and the arguments employed to support by the propositions *they have submitted [24] them, that by the articles executed prior to October 31, 1836, those who joined the society made "a free gift and donation of all their property" to George Rapp and his associates, "for the use and benefit of the comhave the property returned to them if they munity," upon the condition, however, to should withdraw from the society. But that, "by the articles of October 31, 1836, all the members of the society agreed with each other to surrender this right of property restitution which each possessed, and to convey the same to all the members in equal shares." In other words, the gifts before 1836 were to the community; after 1836, to "all the members in equal shares." This difference in result in 1836 and afterwards was effected, it is claimed, by the following provision of the agreement of 1836:

1827). [23] *Those provisions apply to those who with drew from the society prior to 1836, the first class into which the master divided the plaintiffs, and need not much comment. None of the persons who so withdrew contributed property to the association. We are not informed by the record whether their conduct when in the society, or whether their manner of withdrawing from it, entitled them to the consideration that the articles of agreement permitted as an indulgence to withdrawing members. If they could have exacted anything as a matter of right, it would now be presumed that it had been demanded and the demand sat-butions, whatever they may be."

isfied.

There was another class,-the faithful and abiding members; but even these, the master found, contributed no property, and the decision of their rights becomes as easy as the decision of the right of those who "could not stand to it in the community" and withdrew. They promised, as we have seen, to endeavor, by the labor of their hands, "to promote the good and interest of

"All the property of the society, real, personal, and mixed, in law or equity, and howsoever constituted 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 lands, goods, money, or labor, and the same rule shall apply to all future contri

To the articles of 1836, it is also contended that the society, as such, was not a party, but nevertheless the property became impressed with a trust for the use of the society, as such, "by those who then (1836) represented the ownership of this joint and indivisible stock;" and as each new member came in "he became an owner of an equal share of the property, subject to the trust." And it is further contended that the mem

given in evidence, that renders the agree net unlawful or void; nothing in them inconsistent with constitutional rights, moral precepts, or public policy."

bers of 1936 and those who came in after-clear enough by the men who framed it, to wards became donors of the property, and declare and accomplish the "sacrifice of all when the society or the trust failed, from narrow and selfish feelings to the true purany cause, the "corpus of the trust prop- poses of the association," as the articles erty" reverted to them "by way of result- fervidly declared. And it was provided ing trust, . . . not to the surviving that the member who withdrew from the members as donees, or beneficiaries of the society could make no demand against it trust." In other words, the members be "as a matter of right." The member who came at once donees of each other and died left no right to his representatives. It donors to the society, and the descendants needs no argument to show that, as such of members who had not and might not members had no rights, they could transmit bring a dollar to the society excluded from none to the petitioners in this case. auy interest in the reversion of its great No trust having been created by the agree[25] properties the descendants of those from ment of 1836 different from that created by whom those properties came. And this the other agreements, there is no necessity through the doctrine of resulting trusts, to consider the arguments based on the aswhose fundamental principle is to recognize sumption of its invalidity. That agreean equity only in them from whom the con- ment was the affirmation and the continusideration has proceeded. And this, too, ation of the prior agreements, and they would result from granting the contentions were held not to be offensive to the public of petitioners,—a society whose chief pur- policy of Pennsylvania, by the supreme pose was to establish community of prop- court of that state, in Schriber v. Rapp, 5 erty would come back to the assertion and Watts, 351, 30 Am. Dec. 327. The trial fact of individual ownership, and whose court in that case had instructed the jury hope was self-sacrifice and self-abasement, that "there is nothing in the articles of aswould encourage self-interest and self-asser-sociation (those of 1805, 1821; and 1827) tion. Members could go into the society or go out of it, take nothing to it, serve it ever so little, and become ultimate sharers of its property. They might die in the society, or, having withdrawn, die out of it, The supreme court observed that the and will or convey their titles or rights to point made against the articles, as being others. No such right was ever conceived against public policy, was attended with no to exist, and no such right was intended to difficulty, and Chief Justice Gibson said for be created. This is demonstrated by the the court: "An association for the purpose quotations which we have made from the expressed is prohibited neither by statute articles of agreement. The permanence of nor the common law." And it did not octhe community was provided for in the ar- cur to this court, in Baker v. Nachtrieb, 19 ticles of 1805; it was continued in those How. 126, 15 L. ed. 528, to treat them as of 1821 and 1827; and, on account of the invalid contracts. See also Goesele v. Bimsecession of Count De Leon and his follow-eler, 14 How. 589, 14 L. ed. 554; Speidel v. ers, it was asserted with emphasis in 1836. Henrici, 120 U. S. 377, 30 L. ed. 718, 7 Sup. The article of that year became, and was in- Ct. Rep. 610. tended to become, the complete and final An analysis of the agreements of 1847, consummation of community ownership,- 1890, and 1892 is not necessary. They were did not become, and was not intended to be- made to meet particular exigencies, and excome, the commencement of individual own-pressly affirmed the prior agreements, exership. That article was but an incident in the life and evolution of the society. It asserted constancy to the principles of the association, and annulled the 6th article of 1825,--5th article of 1805,-because that article manifestly departed "from the great principle of community of goods," and it was said that, "with a view to carry out the great principles" of their union "and in consideration of the benefits to be derived therefrom," they entered into this covenant:

"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 matter of right. But it shall be left altogether to the discretion [26] of the superintendent to decide whether any, and, if any, what, allowance shall be made to such member or his representatives as a donation."

The purpose was definite and clearly expressed. It was certainly thought to be

cept the 6th section of that of 1827.

The master, and both the circuit court and the circuit court of appeals, found that the society had not been dissolved, either by the consent of its members or by the [27] abandonment of the purposes for which it was founded. On account of this concurrence the disputed facts involved in that finding, under the rules of this court, and the circumstances of the record, we do not feel disposed to review. There is left, therefore, for consideration, only the agreements of 1890 and 1892, and the changes in administration effected by them, and the conveyance of the property of the society to the Union Company. So far as those agreements affect the property rights of petitioners, we have expressed an opinion of them; but their effect upon the question of the dissolution of the society, or the effect of the conveyance to the Union Company, we are not called upon to decide. In that question, we have seen, the petitioners have

no concern.

Judgment affirmed.

Mr. Justice Gray and Mr. Justice Shiras, brought nothing in might eive a donatook no part in the decision.

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Brewer, dissenting: Assuming the validity of the trusts, the questions appear to be, whether the condition of things has resulted in failure to carry out, and of ability to carry out, the principles and purposes of the society, and the defeat of the trusts; and, if so, whether the destination of the corpus of the trust property has, thereupon, become such that complainants, or some of them, have a locus standi to ask relief in a court of equity. The courts below held that the society still existed in law and in fact and that this case was not one of "dealing with the assets of a defunct or dissolved association;" or, in other words, that the trusts had not been defeated; and the decrees rested on this conclusion. If erroneous, the inquiry then arises, To whom does the corpus of the trust property go, in the event of the defeat of the trusts?

A brief recapitulation of the facts is necessary to indicate the grounds of my inability to concur in the opinion and judg

ment of the court:

[28] *In 1803 George Rapp and others located at Harmony, Butler county, Pennsylvania, removed in 1814 to Indiana, and returned in 1825 to Pennsylvania, and located at Economy, in Beaver county. They formed a society or association, which, as said by the circuit court of appeals, "was organized upon the principle of community of goods and land ownership.

tion.

The second agreement was dated January 20, 1821, and the third, March 9, 1827. The first branch of the preamble of this agreement of 1827 read: "Whereas, by the favor of Divine Providence, an association or community has been formed by George Rapp and many others upon the basis of Christian fellowship, the principles of which, being faithfully derived from the sacred Scriptures, include the government of the patriarchal age, united to the com-[25] munity of property adopted in the days of the apostles, 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."

By the 1st article the subscribers gave, granted, and forever conveyed "to the said George Rapp and his associates, their heirs and assigns, all our property, real, personal, and mixed, whether it be lands and tenements, goods and chattels, money or debts due to us, jointly or severally, in possession, or in remainder, or in reversion, or in expectancy, whatsoever or wheresoever, without evasion, or qualification, or reserve, as a free gift or donation, for the benefit and use of said association or community."

Members were to be obedient to superintendents, were bound to promote the interests and welfare of the community, and were to receive support and instruction.

The 6th article (almost identical with ar"The members of the said society, who ticle 5 of 1805) was as follows: "And if had brought with them from Wurtemberg it should happen, as above mentioned, that money, combined their funds and held all any of the undersigned should violate his their property in common, they living as or her agreement, and would or could not members of a common household, and each submit to the laws and regulations of the member enjoying alike with every other, the church or community, and for that or fruits of their common labor in equality any other reason should withdraw from the and brotherhood. The occupation or busi-association, then the said George Rapp and ness of the said society was agriculture, ex- his associates agree to refund to him or cept in so far as it was necessary to manu- them the value of all such property, withfacture shoes, clothing, and other neces-out interest, as he or they may have brought saries for the community. The members of the said society obeyed George Rapp as their spiritual and temporal leader and About the year 1807 the community promulgated the doctrine of celibacy as being necessary for the success of a communistic society.'

ruler..

Although styled "George Rapp and his associates," Rapp was, from the beginning to his death, in 1847, the absolute and exclusive ruler, in whom all power was vested. Members were admitted by adoption, and on adoption conveyed and transferred all their property, real and personal, to "George Rapp and his associates," and, after 1836, to the Harmony Society, for the use and benefit of the community.

By article 5 of a written agreement of February 5, 1805, if for any cause one or more of the subscribers should leave Harmony, "George Rapp and his associates" promised to refund the value of his or their property brought in, while those who

into the community in compliance with the 1st article of this agreement, and the said value to be refunded in one, two, or three annual instalments, as the said George Rapp and his associates shall determine. And if the person or persons so withdrawing themselves were poor, and brought nothing into the community, yet, if they depart openly and regularly, they shall receive a donation in money, according to the length of their stay and to their conduct, and to such an amount as their necessities may require, in the judgment of the superintendents of the association."

The master found, among other things, as follows:

"Prior to his death, in 1834, Frederick Rapp, a member of the society, had been [30] the business agent of the society, transacting its external business. After his death the members of the society, on July 5th, 1834, executed a power of attorney to George Rapp-Exhibit No. 85 in evidence-consti