ond is the more natural interpretation, and is that put upon similar words by Brown, J., in Gross v. N. Y. & T. S. S. Co. (D. C.) 107 Fed. 516. It is quite obvious, however, that the carrier's policies do not permit the interpretation of being direct insurance upon the goods. This is true because they are expressly limited (except the Atlantic policy) as reinsurance of the carrier's own risk. If the words on the bill of lading meant only that the carrier should procure direct insurance, he did not therefore perform the obligation, for he failed to procure such insurance. In view of these circumstances it would seem a more natural construction, in view of the fact that the carrier had already taken out these policies when he issued the bills of lading, to say that the obligation was to pay the shipper's loss under the same contingencies as permitted him through his own reinsurance to throw the loss upon his own insurers. This I do not think was ultra vires a carrying corporation, and did not constitute doing an independent insurance business. The terms of his liability are then to be sought in his own reinsuring policies, just as though he had issued a policy to the shippers in the same words, mutatis mutandis, as the companies issued policies to him. In the five closed policies occur these words, added by the printed "rider," presumably prepared and annexed by the carrier himself:

"The amount hereby insured is to contribute pro rata with the whole amount of insurance on the merchandise at risk."

These words I must regard as incorporated into the carrier's own obligation, and the question becomes, What is "the whole amount of the insurance on the merchandise at risk"? Does that amount include as well both the Atlantic and the London policies, or does it include only the London and the five closed policies, or does it include simply the five policies which amount to $40,000?

The "insurance," within the meaning of the "rider," did not include the Atlantic policy, which by its terms covered only so much of the loss as was over $40,000. If that policy were included in the total insurance which must contribute under the clause in the "rider," the result would be to leave the insured partially uncovered; because if the Atlantic policy did not attach till the loss was over $40,000, and if the five policies could limit their liability to a proportionate share of the loss based not only upon the five policies themselves, but also upon the Atlantic policy, a portion of the first $40,000 would be borne by the insured. Of course, nobody intended any such result, and it is obvious therefore that "the whole amount of insurance on the merchandise at risk" did not include the Atlantic policy, and that had it not been for the London policy the five annual policies would have borne between them the whole loss up to $40,000. The result of this reasoning may be shortly stated thus: That the "other insurance" contemplated by the "rider" did not include any which by its own terms was in effect limited not to share with annual policies themselves.

Coming, now, to the London policy, the respondent urges that it contains the American clause, and that both in day of date and in day of the attachment of the risk it was the earliest insurance of all. This is true, but the libelant answers that in spite of this it contained the words already mentioned:

"This policy shall be null and void to the extent of any amount paid by or recoverable from any carrier and/or bailee."

And also the words:

"This insurance shall not inure to the benefit of any lighterman or carrier whatsoever."

I agree that it would be an undue restriction of the words to limit them to the liability of the carrier as such. The contract was written in general words, and it should stand as it was written. It was not at all unreasonable, in view of section 4282, that the parties should contemplate just such a voluntary undertaking by the carrier against fire as arose in the case at bar. So construed, by voluntary agreement, the parties would supply to their relations that part of the original common-law liability which the statute had abrogated. The question, then, is of the meaning of the clauses, assuming that they apply to other insurance taken out by the carrier as well as to his common-law liability. The precise question always remains, however, what was the meaning of the clause in the "rider," because it is only in accordance with the terms of his agreement that the carrier may be charged in respect of these policies. As I have shown above, the words in the "rider" could not have intended to include insurance upon which the shipper could not have recovered while the five policies remained unexhausted. Therefore, if the shipper should have settled with the five policies for less than the full amount, and because he supposed that he would retain rights against the London company, could he thereafter sue the London company for the balance? If he could do so, I believe that it is contributing insurance under the clause in the "rider"; if not, it is not. If he should try to do this, would he not be met at once by the plea that such a recovery against the London policy would make it inure directly to the benefit of the carrier's obligations? It is true that that clause more aptly includes the right of subrogation, but it is not quite clear that this result is precisely the equivalent of subrogation by the carrier to the shipper's claim against the London policy. No doubt the result arises in a different way, but it is just the same, and the London policy would inure to the benefit of the carrier and exonerate him, quite as completely as though he filed a bill for subrogation. I think, therefore, that the London company clearly meant not to come into any contribution with the carrier, and that therefore the carrier may not use it as contributing insurance under the clause in the "rider.” The American clause in the London policy has, therefore, nothing to do with the question, for the whole policy was limited so as not to come into effect till the carrier's liabilities were exhausted.

In respect of the Atlantic policy the question is of the American clause in it as against the American clause in the London policy. Clause for clause the Atlantic policy must win, for it too was subsequent both as regards the respective rates when the risk attached and when the policies were issued. Brown, J., in Gross v. N. Y. & T. S. S. Co. (D. C.) 107 Fed. 516, 520, construes the words "shall have made any other assurance" as referring to the attachment of the risk, and in the case at bar the shipper had "made" no assurance with the Lon

don company prior to the date of the Atlantic policy in this sense. On the other hand, the insurance "made" by the shipper by virtue of the bill of lading was after the date of the London policy which would make that company liable. However, I think it is not necessary to decide that question, because the construction of the clause in the London policy, adopted above, excludes as well the Atlantic policy as the five annual policies. If the London policy bears that part of the loss which the Atlantic policy otherwise would bear, it has "inured" to the benefit of the carrier quite as truly as it would "inure" to the benefit of the five policies. If the Atlantic company could urge its exemption under the American clause, and if the London company could insist upon exemption under its own peculiar clause, then the shipper was in part uninsured; which cannot be. One must yield, and I think it reasonable that the "assurance made," as referred to in the Atlantic policy. must be read as an assurance not so limited as to be null and void, if marshaled in a hotchpot along with the carrier's obligations.

Thus, even upon the assumption that the risk was the same, and the parties the same, in the carrier's insurance effected by the bill of lading and in the London policy, still, by the necessary intention of the parties, I think the carrier must be understood as having intended not to exempt from his insurance that much of the risk which another insurer expressly declined to assume.

The rights of the shipper being thus determined, the effect of the payment by the London company is exactly covered by the case of Bradley v. Lehigh Valley R. R. Co., 153 Fed. 350, 82 C. C. A. 426, and a decree is proper for the full amount of the loss against the respond

ent.

A decree to that effect may therefore be entered.

ORDER OF ST. BENEDICT OF NEW JERSEY v. STEINHAUSER.

(Circuit Court, D. Minnesota, Second Division. June 22, 1910.)

1. RELIGIOUS SOCIETIES (§ 18*)-RELIGIOUS CHARITABLE ORDER-CONTRACTS WITH MEMBERS-VOW OF POVERTY.

The Order of St. Benedict of New Jersey is a charitable corporation chartered by the state whose members are required by the charter to be members of the religious order of St. Benedict. All members of such religious order take the vow of poverty, by which they renounce the right to individual ownership of property. The constitution of the corporation provides that it is agreed upon that no member shall claim more that a decent support, but shall, as soon as possible, convey all property which he then holds or thereafter may hold to the corporation. It further provides that members may voluntarily leave the order. Held, that the contract between a member and the corporation with respect to property is not in violation of public policy, but is valid and binding so long as a member retains his membership, and that property held by a member who died in full fellowship at the time of his death, which was ac quired with his earnings, belonged to the corporation and not to his heirs. [Ed. Note. For other cases, see Religious Societies, Dec. Dig. § 18.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. RELIGIOUS SOCIETIES (§ 18*)-RELIGIOUS CHARITABLE ORDER-CONTRACTS WITH MEMBERS-VOW OF POVERTY.

The fact that such member who was for some years before his death a resident of another state was permitted by the abbot to retain his earnings, and use the same for charitable purposes, did not release him from his vow of poverty, nor make such earnings his individual property, but merely constituted him agent of the order for its disbursement. [Ed. Note. For other cases, see Religious Societies, Dec. Dig. § 18.*] 3. EXECUTORS AND ADMINISTRATORS (§ 225*)—CLAIMS AGAINST ESTATE-TIME FOR FILING.

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, and is not affected by Rev. Laws Minn. 1905, § 3730, requiring claims against estates to be presented to the probate court for allowance within the time fixed by order of such court nor is it within section 3733, limiting the time within which actions may be brought against an executor or administrator on provable claims. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. 225.*]

4. LIMITATION OF ACTIONS (8 60*)—ACCRUAL OF RIGHT OF ACTION-PRINCIPAL AND AGENT.

Where an agent was permitted to retain and use for certain purposes property belonging to his principal, which authority had not been withdrawn at the time of his death, limitations did not begin to run until that time against an action by the principal to recover the property unexpended.

[Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 60.*]

5. COURTS (§ 489*)-JURISDICTION OF FEDERAL COURTS SUIT AGAINST AD

MINISTRATOR.

While a federal court cannot interfere with property in the hands of an administrator, which is in the custody of the state probate court, it may adjudge the rights of parties before it in such property, and such adjudication will be binding on the administrator and may be enforced against him personally.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 489.*]

In Equity. Suit by the Order of St. Benedict of New Jersey against Albert Steinhauser, administrator of Augustin Wirth, deceased. Decree for complainant.

Otto Kueffner and Albert Schaller, for complainant.
Pitzer & Hayward, for defendant.

WILLARD, District Judge. This case presents a controversy in which the complainant claims that the property left by Augustin. Wirth at his death belonged to it, because he lived and died a member of the Order of St. Benedict. The defendant claims that for various reasons the property belongs to the heirs at law. That the documents offered in evidence to show that Wirth belonged to the Order of St. Benedict, and that he had transferred his stability to the plaintiff, the Order of St. Benedict of New Jersey, were duly executed by Wirth, was admitted at the argument. Even without this admission the authenticity of the documents was sufficiently proven. From them it appears that Wirth became a member of the Order of St. Benedict at the monastery of St. Vincent in Pennsylvania, on August 15, 1852, and on

For other cases see same topic & § NUMBER in Dec. ♣ Am. Digs. 1907 to date. & Rep'r Indexes

May, 1887, being still a member of the order, he transferred his star bility from the Abbey of St. Benedict in Kansas to the Abbey of St. Mary, Newark, N. J., and therefore to the Order of St. Benedict of New Jersey, the complainant in this cause. Wirth died at Springfield, Minn., December 19, 1901. Some suggestion was made during the taking of the evidence and in the briefs of the defendant to the effect that Wirth in moving to Minnesota ceased to be a member of the Order of St. Benedict, and ceased to belong to the complainant corporation. I find as a fact, however, that at the time of his death he still remained a member of the order. Hoerr, a witness for the defendant, testified (defendant's record, 149, 150) that he saw Wirth about a year before his death at Mankato, Minn., wearing the habit of the Order of St. Benedict. A receipt was introduced in evidence (defendant's record, p. 152), dated Springfield, Minn., January 2, 1900, signed by Father Wirth, and to his signature he added the letters O. S. B. He also made a financial report of the Church St. Raphael, Springfield, Minn., of which he was then in charge from January 1, 1900, to January 1, 1901, to which he signed his name as Augustin Wirth, O. S. B. There is nothing to contradict the almost conclusive evidence furnished by this testimony and these documents. Dying within the order, it follows that he was also a member of the complainant corporation, for there is nothing to show that he had transferred his stability from the Order of St. Benedict of New Jersey to any other monastery, although there was at the time in Minnesota a monastery of the order at St. Cloud.

The first question for consideration is this: What effect upon his rights to property was produced by his joining the Order of St. Benedict? When he joined that order he took the three vows of chastity, poverty, and obedience. The only one of these vows which it is necessary to consider in this case is the vow of poverty. The rule of St. Benedict which governed the order provided in its chapter 33, as follows:

"The vice of personal ownership must above all things be cut off in the monastery by the very root, so that no one may presume to give or receive anything without the command of the Abbot; nor to have anything whatever as his own, neither a book, nor a writing tablet, nor a pen, nor anything else whatsoever; since monks are allowed to have neither their bodies nor their will in their own power. Everything that is necessary, however, they must look for from the father of the monastery; and let it not be allowed for any one to have anything which the Abbot did not give or permit him to have. Let all things be common to all, as it is written. And let no one call or take to himself anything as his own. But if any one should be found to indulge this most baneful vice and having been admonished once and again, doth not. amend, let him be subjected to punishment." (Complainant's record, p. 25.)

This rule was in force in New Jersey when Father Wirth became a member of the Order of St. Benedict of New Jersey. The Abbot of St. Mary's testifying with reference to this rule said on page 123 of complainant's record:

"They lived in common with each other, and whatever they had the community gave to the monastery, only claiming what they needed of necessity; they have always been taken care of like the children of a family."