Sec. 67.

Diversion of trust estates for charity. As a general proposition, ecclesiastical polity is for ecclesiastical courts; but where church property is impressed with a trust, equity will prevent a diversion of it from the purposes of the trust. Cushman v. Rector etc. of Church of Good Shepherd, 162 Pa. St. 280 (29 Atl. Rep. 872). The legislature may authorize a sale of property devised to trustees for a charitable purpose and a reinvestment of the fund in other property better adapted to the purposes of the trust. In re Van Horne et al., R. I. (28 Atl. Rep. 341). The legislature, after authorizing a religious body to hold land for a specified purpose, may remove the restrictions requiring that the land be used for such purpose. Gump v. Sibley, Md. (28 Atl. Rep. 977). Where as a compromise of a will containing a bequest to an educational institution, for certain purpose, such institution agreed to accept a lesser sum, it takes such sum subject to the conditions of the will, and it cannot be applied to other purposes. Brewer v. University of North Carolina, 110 N. C. 26 (14 S. E. Rep. 644). Where the state by legislative act authorized the trustees of an institution of learning to patent land for its benefit, and gave them power to sell the same for the same purpose, upon a dissolution of such institution, the office of trustee being vacant for more than twentyfive years, during which time such lands remained unsold, the legislature may repeal such statute and grant the land for another purpose, as it will be held to have reverted to the state without any direct proceeding to establish the forfeiture. Kennedy v. McElroy et al., 92 Ky. 72 (17 S. W. Rep. 202).

Sec. 68. Church controversies. When rights of property are in question, civil courts will inquire whether or not the organic rules and forms of proceedings prescribed by the ecclesiastical body have been followed. When, tested by such organic rules and forms, it is found that the proceedings of an ecclesiastical tribunal were without jurisdiction, such proceedings will be held void in so far as they necessarily and directly involve property rights. Pounder v. Ash, 36 Neb. 564 (54 N. W. Rep. 847). In case of schism or division in a church organization, the title and right to the property is in that part which is acting in harmony with the fundamental

doctrines, laws and rules of the church as they were established and accepted before the division, and civil courts have jurisdiction to enforce this right. Schradi et al. v. Dornfeld et al., 52 Minn. 465 (55 N. W. Rep. 49); Nance et al. v. Busby et al., 91 Tenn. 303 (18 S. W. Rep. 874; 15 L. R. A. 801); Philomath College v. Wyatt, Ore. (37 Pac. Rep. 1022); Krecker v. Shirey, 163 Pa. St. 534 (30 Atl. Rep. 440).

Civil courts have no jurisdiction over the spiritual affairs. of a church, but they may determine property rights; and in the ascertainment of the rights of property devoted to church purposes, they will give effect to the laws, usages and regulations of the church itself, if not inconsistent with the law of the state. Prickett v. Wells, 117 Mo. 502 (24 S. W. Rep. 52); Krecker v. Shirey, 163 Pa. St. 534 (30 Atl. Rep. 440). Civil courts have jurisdiction of ecclesiastical matters only as incident to the ascertainment of civil rights; they cannot pass upon the validity of an ecclesiastical excommunication of members. Nance et al. v. Busby et al., 91 Tenn. 303 (18 S. W. Rep. 874; 15 L. R. A. 801). Members of a church may enjoin the use of its property for the purpose of promulgating doctrines which have been declared to be heretical by a board of arbitration. Mt. Zion Baptist Church v. Whitmore, 83 Ia. 138 (49 N. W. Rep. 81; 13 L. R. A. 198). As to how far the decision of the majority in a church is binding upon the minority considered. In re Aitken's Estate, 158 Pa. St. 541 (27 Atl. Rep. 1102); Bear et al. v. Heasley et al., 98 Mich. 279 (57 N. W. Rep. 270). Particular cases involving disputations as to the right of property of the Church of The United Brethren in Christ arising on account of a revision of their confession of faith in May, 1889. Philomath College v. Wyatt, Ore. (37 Pac. Rep. 1022); Bear et al. V. Heasley et al., 98 Mich. 279 (57 N. W. Rep. 270); Schlichter et al. v. Keiter et al., 156 Pa. 119 (27 Atl. Rep. 45; 22 L. R. A. 161). See these opinions for an extensive review of authorities as to the power of civil courts to review decisions of ecclesiastical tribunals. How. Mich. Stat. § 4639, which provides that no ecclesiastical law or custom is to be recognized in the tenure of real estate, does not deprive members of a congregation of their right to compel the trustees to

permit the use of a church building according to the discipline and usages of the denomination. Fuchs v. Meisel, Mich.

(60 N. W. Rep. 773). Mich. Acts 1855 No. 145 construed and applied. Wilson et al. v. Livingston et al., 99 Mich. 594 (58 N. W. Rep. 646).

(37 N. E. Rep. 795).

Sec. 69. Construction of statutes. N. Y. Laws 1854, ch. 50, giving the Supreme Court authority to make an order, on application of any charitable, benevolent, etc., association, authorizing the mortgaging of its real estate, operates to prohibit the execution of such a mortgage without the order, and a mortgage executed without it is void. Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451 (34 N. E. Rep. 281). Under Indiana Rev. Stat. 1894, § 2726, a board of county commissioners is capable of taking a charitable devise for the establishment of a home for the benefit of worthy homeless people and orphans. Board of Com'rs v. Dinwiddie, Ind. Under Wis. Rev. Stat. 1878, § 2039 and Laws 1891, ch. 359, a devise of real estate to a charitable corporation is void unless made at least three months before the death of the testator. Milwaukee Protestant Home for the Aged v. Becher et. al., 87 Wis. 409 (58 N. W. Rep. 774). Ga. Code, § 2419 prescribing the extent and time within which devises for charitable purposes shall be made, applied. White v. McKcon, 92 Ga. 343 (17 S. E. Rep. 283). Under Ga. Code, § 3195, where a trustee of a charitable trust has power to appoint his successor, but fails to do so, such successor may be appointed by the court. White v. McKeon, 92 Ga. 343 (17 S. E. Rep. 2883). Pa. Act, April 26, 1855, applied-validity of bequest for charity. In re Hoffner's Estate, 161 Pa. St. 331 (29 Atl. Rep. 33).

COMMUNITY REAL ESTATE.

Sec. 70. Origin and history. There is a species of estate right or interest in property which prevails in those states whose laws and legislation are influenced by the earlier French and Spanish domination, and in the new states and territories which have been carved out of the French and Mexican purchases. This species of property is known in law as community property. It only prevails as a rule of law between husband and wife and is a legal consequence of the marriage. And in the states where the law of community property prevails it attaches as a legal presumption to every marriage contract unless there has been some stipulation to the contrary. Such species of property ownership was unknown to the common law, nor does the doctrine prevail to any extent in any of those states whose laws rest upon a common law foundation. And Chancellor Kent in a note says that the doctrine of community property was unknown to the Roman law, but that it is common to the greater number of the European States, and is supposed to have taken its rise with the Germans; and that it may be founded on the presumption that the wife by her industry and care contributes equally with her husband, to the acquisition of property. 2 Kent 183. But the origin of the more modern doctrine of community property as it prevails in those states where recognized, may be traced to the Napoleonic Code and old Spanish Statutes. Saul v. His Creditors, 17 Martin 569. The states of the union which recognize the doctrine of community property by statute are Louisiana, Texas, California, Nevada, Idaho, Montana and Washington, and the territories of Arizona and New Mexico. The various statutes in these states are however simply declaratory of the law as it previously prevailed. Buchanan's Estate, 8 Cal. 507, La. Civ. Code. 1875 § 2399 et seq. Nevada C. L. 1873 § 151 et seq. Texas R. S. 1879. §§ 163, 1653, 1654, 2851, et seq. Stiles v. Lord, 11 Pac. Rep. (Ariz) 314; Ray v. Ray. 1 Idaho, 566. Mon. P. C. § 551. Holyoke v. Jackson, 3 Wash. 235. This

doctrine at one time prevailed in Missouri. Childress v. Cutler, 16 Mo. 24. But even in those states where this rule of property prevails the parties may establish their property rights as between themselves by an ante-nuptial agreement, the statutes only taking effect in the absence of any contrary agreement between the parties to a marriage contract. Marlow v. Barlew, 53 Cal. 456; La. Civil Code 1878, Art. 2424; Desobry v. Slater, 25 La. Ann, 425; Nev. C. L. 1873, § 176; Le Breton v. Miles, 8 Paige, 261; Cox v. Miller, 54 Tex. 16; Green v. Ferguson, 62 Tex. 525.

Sec. 71. Definition. Community is said by Bouvier to be a species of partnership which a man and a woman contract when they are lawfully married to each other. He defines community property to consist of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact; of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during their marriage, either by donation made jointly to them, or by purchase or in any similar way even although the purchase be made in the name of one of the two and not in the name of both; because in that case the period of time when the purchase is made is alone attended to and not the person who made the purchase. See Clark v. Norwood, 12 La. Ann. 598.

The community is of two kinds, either first, conventional, or that which is formed by express agreement in the contract of marriage itself, by which the legal community may be modified either as to the proportions which each shall take, or as to the things which shall compose the community: Second, legal community which takes place by operation of law when the parties make no agreement on this subject in their contract of marriage. In this other case the community is regulated by the law of the domicile of the parties at the time of their marriage. Bouvier Law. Dict., Abb. Law. Dict., La. Civ.Code. Art. 2393. This community between husband and wife is a species of partnership; and although community property has not all the incidents of partnership property it will be found to have many of them, and in the decided cases is referred to as partnership property. De Blane v. Lynch, 23 Tex. 25;