These lines fix the outer boundary between three and four miles to the eastward of the Oriental Hotel. The libellant urges that, although the designation was made by the Secretary of the Treasury under an act to regulate navigation of harbors, rivers and inland waters, with a special view to preventing collisions, he must have had in mind the ordinary and accepted definition of inland waters, as well as the physical conformation of the adjacent land and the harbor bottom, and further urges that the line so fixed has been adopted by the courts and has not by them been limited to the sole purpose of regulating vessels' lights, citing Lennan v. Hamburg-American Steamship Co., 73 App. Div. 357, 77 N. Y. Supp. 60, and Middleton v. La Compagnie Generale Transatlantique, 100 Fed. 866, 41 C. C. A. 98. These actions were brought, however, to recover damages for loss of life and the question now under consideration was not presented for decision, but one of territorial jurisdiction, and it was held that the courts had jurisdiction to determine the particular questions there involved. The expressions used by the courts, so far as they apparently bear upon the question here, are mere dicta and can have little weight in influencing decision. The libellant next contends, that the ordinary and accepted definition. of the term "inland waters," as laid down by the courts, includes the waters within which the loss occurred, citing Cogswell v. Chubb, I App. Div. 93, 36 N. Y. Supp. 1076, affirmed 157 N. Y. 709, 53 N. E. 1124. That authority, however, rather supports the respondent's claim, that the accident did not occur in waters covered by the policy. That case was brought to recover for loss of a steam yacht, which was insured under a policy which provided: "Warranted to navigate only the inland waters of the United States and Canada, and not below the Thousand Islands." It appeared by the record, that the loss occurred upon the lower New York Bay, after the vessel returned from a trip on the open waters of the Atlantic Ocean, beyond the lightships. The court said, pages 94, 95, I App. Div., page 1077, 36 N. Y. Supp.: "The effect of the whole evidence is that the vessel went out of inland waters. Such waters are canals, lakes, streams, rivers, watercourses, inlets, That ordinary bays, etc., and arms of the sea between projections of land. and accepted signification of the words 'inland waters' must be considered the sense in which the parties used them in their contract of insurance, unless by agreement or understanding some other was assigned to them; and there is nothing in the record to show that a different or wider meaning was intended to be given them. Going to the open ocean and then returning was a plain breach of the warranty, the consequence of which was to avoid the policy, for, hard as the artificial rule may be, it is too firmly settled to be questioned that the breach of an express warranty, whether material to the risk or not, whether a loss happens through the breach or not, absolutely determines the policy and the assured forfeits his rights under it." The policy in suit contained a provision for the resumption of the underwriter's liability, when the vessel should return to inland waters, and, of course, there was no forfeiture. The language of the court above is significant, however, of the absence of the underwriter's liability, when a vessel is beyond the confines of the risk. It seems that the libellant's contention has no authority to support it. The policy here was a New York contract, presumably framed with a view to the definition made by the courts of the state, and it can not, apparently, be affected by the laws of the United States made for a purpose not within the purview of the parties at the time of the contract. This loss occurred over three miles to the eastward of Norton's Point, the western end of Coney Island and the natural outer boundary of inland waters belonging to New York Bay. Ocean waters can not be changed to inland waters by legislation particularly designed to secure safety from collision in navigation. Moreover, the vessel was manifestly not intended for navigation upon the ocean. In the Century Dictionary, it is defined: "House-boat. A boat fitted up as a house, and commonly more or less resembling one in form and arrangements, for permanent or temporary habitation. Such boats have long been the only dwellings of many thousands of families in the waters of some eastern countries, intended either to be stationary or to be moved by towing or by oars or sweeps, and in Hindustan and Burma are known as house-boats. They abound even more largely in China; but the boat distinctively called a house-boat there is one for use in excursions or in traveling. The English house-boat is an adaptation of the latter idea, being supplied with all conveniences for living on board as in a house during a prolonged excursion, especially on the Thames." And in Funk and Wagnalls' Standard Dictionary thus: "House-boat. 1. A covered boat fitted up as a dwelling, or a boat with a deck-cabin suitable for a dwelling; a floating dwelling. 2. In China, a private boat kept for the use of a commercial house. Houseboats are not as frequent in this country as abroad, but it is well known that here, as well as elsewhere, they are adapted for use in protected waters only. There is no room in this policy for the contention that the wellestablished rule relating to the construction of ambiguous provisions against the insurer, should be applied. The provisions excluding ocean risks, are perfectly plain and incapable of construction, which would tend to give them a meaning different from the one expressed. Mark v. Home Ins. Co. (D. C.) 52 Fed. 170. It would seem anomalous to hold that a policy of insurance which provides against risks incident to inland waters, could properly be deemed to secure indemnity against risks incurred upon the open ocean, though within the waters deemed inland for certain navigation purposes. Libel dismissed. MELLA V. NORTHERN S. S. CO. (Circuit Court, S. D. New York. December 14, 1903.) 1. WRONGFUL DEATH-ACTIONS-BENEFICIARIES-RELEASE. Under Code Civ. Proc. N. Y. § 1902, providing that in an action for wrongful death the damages recoverable are exclusively for the benefit of the decedent's husband or wife and next of kin, a widow was entitled to release a cause of action for wrongful killing of her husband prior to her appointment as her husband's administratrix, Ralph S. Rounds, for demurrer. Frank Brundage, opposed. WALLACE, Circuit Judge. The plaintiff has demurred to the fourth defense set up in the answer. The plaintiff is the widow of Louis Mella, and sues as administratrix of his estate to recover the pecuniary damages accruing to her as his widow, and to his next of kin, by reason of his death through the negligence of the defendant. The complaint alleges that the decedent died June 11, 1902, and that plaintiff was appointed administratrix September 15, 1902. defense alleges a release by the widow, executed to the defendant July 12, 1902, for a sufficient consideration, of all claims and causes. of action arising from the death of the decedent. The Under the statute upon which the plaintiff's cause of action is founded the damages recoverable are "exclusively for the benefit of the decedent's husband or wife and next of kin." Code Civ. Proc. N. Y. § 1902. They are a property right, which becomes vested in the beneficiaries at the moment of the decedent's death, and can be converted into money through an action brought for their benefit by the personal representatives, who are simply trustees for the purpose. The right of action becomes a part of the estate of the beneficiary, and survives his death. Wooden v. W. N. Y. & P. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 149, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635. As the interest of the beneficiary is a property right, and passes on his death to his personal representatives, it necessarily is capable of assignment in the absence of anything in the statute indicating that the Legislature intended that it should not be. It was decided to be assignable in Quin v. Moore, 15 N. Y. 432. If the plaintiff could have made a valid assignment of her interest in the damages, there seems to be no reason why her release should not be a defense to the action to the extent of her interest in the recovery. Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878, relied upon by the plaintiff as an authority to the contrary, is not decisive, and ought not to control the case. In that case a settlement of the cause of action was made between the defendant and a brother-in-law of the decedent, who was subsequently appointed an administrator. The only point necessarily involved was whether such a settlement was a defense. The person who assumed by the settlement to release the claim had no interest in the recovery, and was not one of the beneficiaries named in the statute. He was a mere stranger, and the only ground upon which it could be claimed that his act was of any validity was that upon his appointment as administrator the letters related back to give it validity. The court said: "If there is any such rule of law in the administration of the estates of deceased persons, it has no application in an action like this for the recovery of unliquidated damages under a special statute by the next of kin, resulting from a negligent or wrongful act causing the death of their intestate." Demurrer overruled. 127 F.-27 INGERSOLL v. CORAM et al. (Circuit Court, D. Massachusetts. December 30, 1903.) No. 1,757. 1. EQUITY JURISDICTION-SUIT TO ENFORCE Pledge or LIEN. Equity has jurisdiction of a suit to enforce a pledge of or lien upon the undivided shares of certain heirs at law of a testator in his estate to secure payment to a lawyer for his services in contesting the testator's will. 2. JURISDICTION OF FEDERAL COURTS-SUIT TO CHARGE FUNDS IN HANDS OF ADMINISTRATOR. A federal court has jurisdiction, equally with a state court of general jurisdiction, of a suit to establish a lien on the interest of defendants in funds belonging to the estate of a decedent and in the hands of an administrator; whatever action it may take, however, being subject to that of the probate court within its proper jurisdiction. 3. EQUITY-BILL-MULTIFARIOUSNESS. The rule applied that a bill to establish a lien is not multifarious because it also seeks to establish the personal liability of the persons whose indebtedness the lien secures, as an incident to the granting of the equitable relief prayed for. 4. SAME-PARTIES. Certain heirs at law of a testator assigned an undivided one-third interest in their respective shares of his estate to another heir, who agreed to employ and pay counsel and do all things necessary properly to secure the interests of the assignors in the testator's estate as heirs at law, "it being understood and agreed that this assignment shall be in full for all of such claims and demands, and that no further liability shall exist against the said [assignors] on account thereof." Held, that such assignors were neither necessary nor proper parties to a suit to enforce a lien on their shares in the estate for services rendered by counsel in contesting the will, under a contract with the assignee, made by him pursuant to the power conferred by such assignment, which could not, under its terms, create a charge against them personally or against their unassigned interests in the estate. 5. LIEN-CONTRACT FOR COUNSEL FEES-CONSTRUCTION. A contract executed by the representatives of the heirs at law of a testator for the services of an attorney and counselor, to be rendered in contesting the will of the deceased, after fixing the fee which was to be paid in case the will was defeated and their clients obtained their shares of the estate, provided that the parties signing were not obligated except to pay said fee out of the funds secured from the estate by certain named heirs, including one of the signers, and others who had assigned to him a certain proportion of their shares in consideration of his carrying on the litigation. Held, that such contract created a lien for the stipulated fee, provided the conditions on which it became payable were fulfilled. 6. CONTRACTS-RULES OF CONSTRUCTION. Qualifying words are not to be read into a contract where they, would narrow the apparent general purpose, and defeat what, but for the addition, would be both a reasonable and just result. 7. SAME-EMPLOYMENT OF ATTORNEY-PERFORMANCE. A portion of the heirs at law of a decedent employed an attorney and counselor to render services in a contest against the probate of an alleged will of the deceased by a brief and informal contract, by which they agreed to pay him a stipulated fee "in case the will is defeated and our clients get their shares." Held, that such contract, being informal, and between attorney and client, should be interpreted according to matters of substance, and not technically, and that the condition was substantially fulfilled where a decree was entered by the probate court in accordance with a stipulation between all parties in interest, secured with the aid of the efforts of the attorney and of his advice, fixing the basis of distribution of the property of the decedent in kind, which, with the exception of some inconsequential bequests, was wholly at variance with the provisions of the will, and under which the clients of the obligors in the contract received a larger part of the estate than their shares as heirs at law. Although not in terms set aside, the will was by such decree in substance "defeated," and the heirs named "got their shares," within the fair and reasonable meaning of the contract. 8. RES JUDICATA-PERSONS IN PRIVITY-ANCILLARY ADMINISTRATORs. The rule applied that an ancillary administrator in one jurisdiction is not in privity with another ancillary administrator of the same estate in another jurisdiction, so that a judgment for or against one can be pleaded as an adjudication to bar an action by or against the other, although the causes of action are identical. In Equity. On demurrers to bill. Hollis R. Bailey, Edgar N. Harwood, and John H. Hazelton, for complainant. Frederick N. Wier, for Coram, Root, and Cummings. Thaddeus D. Kenneson, for Root. Horace G. Allen, for Davis, trustee, and Leyson, administrator. PUTNAM, Circuit Judge. The pith of this suit, which is in equity, is to the effect that one Andrew J. Davis, who, in his lifetime, was a resident of the city of Butte, in the state of Montana, died in March, 1890, leaving no descendants, but an instrument which was. offered for probate as his last will and testament; that this, if allowed, would have disinherited his next of kin except one brother, to whom was given the bulk of his estate; that some of the next of kin resisted the probate thereof, proceeding in the names of Henry A. Root and Sarah Maria Cummings, who were also of the next of kin; that the estate of said Andrew J. Davis was of the value of from $2,000,000 to $5,000,000; that a portion of the next of kin, to wit, Henry A. Root, Sarah Maria Cummings, Elizabeth S. Ladd, Mary Louise Dunbar, and Ellen S. Cornue-said Root directly, and the other next of kin through said Root and one Joseph A. Coram-retained Robert G. Ingersoll, whose administratrix the complainant is, to contest the will, using his professional services as a lawyer; that said Robert G. Ingersoll was to be paid, on certain conditions to be hereinafter named, $100,000, of which $5,000 has been paid; that the remainder has not been paid, and is owing, with interest; that the next of kin named, either directly or through said Root and said Coram, assigned or pledged the interests which they claimed in the estate of Andrew J. Davis as security for the amount so to be paid to said Robert G. Ingersoll; that also, under the laws of Montana, which state was the locus of the proceedings herein referred to, Robert G. Ingersoll had a lien as a lawyer on said shares; that the condition on which the agreement to pay Robert G. Ingersoll was made had been satisfied, so that the remainder of the $95,000 became due him; that the will was in substance defeated, and the next of kin became entitled to their shares in the es |