'whether the De\"ereaU'lf, 'departing:from'the 'Btatutoryrule of WI,som, on the potti risk of lkr ltbility,topass' safely' (hi 'starboard !hand, as'was held in The TliidII1, :49!l1id;Rep. 419;'lJ:80f10; C. A. 324/'Whatwedecide inthis;casei's that 'the :rniled to establlsh,byany fair andsatifJfMtory preponderance 61 proof, as the on them to do, that the Dp,vereaux's shee,ririg,andthe coUisionresultingthetefrom, Was caused by-any fault of e1ther'theFolsomorMftc!hell or berth. We have reached this conClusi8b withotitconsideringthe rlew taken by the appellants since'thetppeal,'as we 'entertain someidoubt whether, after an appeal inadlriftalty!to this courf, DeW testimony can be taken, under existing provisions :bflaw. . .'. . . The'decree of .the district court condemning the Folsom and Mitchell is erroneous, and is accordingly reversed, and the caUse is remanded to said court, with direction to dismiss the libel· at .libelants' costs.
OF TuG BAL1Zlll.
(OircuU CoWl't, E. D. MicMgan. October 8, .'
MARITIMB LIBNS.....ENFORCBKBNT-DISPOSITION OF SVllPLUs-J'URISDICTION OJ!' DISTRICT
.A: tug \\Vas 1I01d to lIatisfy certain maritime liens, after the discharge of which tllere remained in court a surplus1 which was claimed by the former owner and his .,Tbe cred,itol's wnQ p.l:ltltiQn8!i the fund ,be p!lid to them were of two classes;-tb\la6 claiming for suppliesfUrJllshed to than the tug, and for rendered . which suttS('I1IPsrBonam were pendiug;, and those claitlJiJlg, for as master"O( tug and of other i>Qats, and for which ju.,dgrnents (n personam had been obtaine'd' and executions returned 'nuUa bona. that'the suits and judg" ments(n f)6'I',onam conferred no vested right on the master of the tug or other petitioning CreditoI'fil, to a specific interel\t in the surplUS, ,such as. the forty-third admiralty rule contemplates, and'that; therefore, the diEitrict'court had no jurisdiction in admiralty to create liells on the surplus as against the fornier owner.
In Admiralty. On appeal from district court. Modified and af. firmed. 'Jared W.F'inney, Jam68 J. Atkinson, He:nry H. Swart, and Moore &: Can,field, prodtors for the several cla.imants. JAexsoN,Cirouit Judge. Under admiralty proceedings in the United States district court at Detroit thasteam' tug BaUze was sold to satisfy icyrtainnutritime liens. After paying off and discharging these liens, there remains in the registry of tlia court surplus, proceeds arising from said sale to the amount of thirteen or fourteen hundred dollars, and the question now presented for decision relates to the proper 'disposition to
" ,'THE BALIZE.
be'made of tbisdsurplus, ,whioh :is,elaimed by the Detroit Tug & Transit Company,. as the owner of the Balize before its sale, and by several who have filed petitions praying that the of said company's' fund may be paid over to' them, rather than to the former owner of the tug. The petitioning creditors consist of two classes,viz.: First, those having claims against the Detroit Tug & Transit Company for supplies of ooal, etc., furnished boats of said company other than the Balize,and for which suits in personam tire now pending; and, BeCondly,those having claims for services rendered tis master of the Balize and of other boats of said Detroit Tug & Transit Company. This latter class of petitioners have severally obtained judgments- in personam against the Detroit Tug & Transit: Company, on which executions have been-issued to the marshal, and' by. him returned nulla bona. The district court ordered and decreed tbatBiram Ames, master of the tug Baliza, should be paid in full out ofsaid surplus,. audthat the remainder orsaid fund should be turned over to the Detroit Tug & Transit Company as the owner thereof. The other, petitioning creditors were held not to be entitled to payment uut ofsaid.8utplus, and their petitions were dismissed. From this deoree all the claimants of said surplus have appealed to this court. After a careful examination of the questions presented by the appeal. I am satisfied, coiltrary to my first impressions, that the action of the district court in allowing and directing the debt of Ames, the master of the Balize, to be paid' out ·of thissurplus, is erroneous. This'allowance was no doubt made upon the autbodty of The Santa Anna, Blatchf.& H. 80, 81, where it was held that the master, as against the owner, was entitled to payment out of a surplus remaining in court. But that case has been practically overruled by the supreme court of the United States in the case of The Lottawannn, 20 Wall. 221, 21 Wall. 559, which held 'that surplus proceeds, in such cases as the present, must be paid over to the owner, unless claimed by a creditor having a specific lien thereon either by contract or statute. "The proceeds arising from such a sale, [by order of the admiralty court,] if the title of the owner is unincumbered, and not subject to any maritime lien of any kind, belong to the owner, as admiralty courts are not courts of bankruptcy or insolvency. Nor are they invested with any jurisdiction to distribute such property of the owner, any more than any other property belonging to him, among his creditors." 20 Wall. 221. The cases relied on by the petitioning creditors, viz., The Guiding Star,18 Fed. Rep. 263, and TheE. V. Mundy, 22 Fed. Rep. 173, decided by Mr. Justice MATTHEWS, do not conflict with the principle announced in The Lottawanna Case. In both these cases the learned judge awarded the surplus fund to lien creditors,creditors who held prior liens on the property or its proceeds, either by contract or by statute. Neither the master of the Balize nor any of the other petitioning creditors had any specific lien upon the Balize or its proceeds, either by statute or by contract. The district court, as an admiralty court, has no jurisdiction to create liens on this surplus as against the owner. It can only assert and enforce against the owner
prior spedficliens which the ow.ner r Grthe 'law have 'previously created or established. The judgments which the,several masters have obtained against the Detroit Tug & Transit Company in personam, the issuance of executions, and returns of nulla bO'Yla thereon, created no lien on said surplus. The suits and judgments in personam conferred no vested right to a;speeific interest in said surplus, such as the forty-third admiralty rule contemplates. The creditor who claims satisfaction out of surplUS proceedsin such cases must come into court with an existing 'specific lien. He cannot invoke the aid of a court of admiralty to create such lien by or impounding the fund. The; admiralty court can 'only enforce or give effect to subsisting liens created by statute or contract as against:the:owner of surplUS proceeds. It may be, and doubtless is, inequitable: for the owner to r.ssert its right to this surplus,andleave bona fide,de1;>ts unpaid, but a court of admiralty has no such equitable jurisdiction as will enable it to correct such a wrong. The claim of the master of the Balize cannot be distinguished from that of the other creditors, 'lUld the decree of the district court allowing and directing its payment is reversed. In all other respects the' decree of the district court is affirmed. The entire surplus will be paid over to the owner, the Detroit Tugl\; Transit Company, and the creditor petitions will be dismissed, with costs. The costs incident to the petition of the Detroit Tug & Transit Company will be retained out of the fund in the registry of the court,and the ba]ance,of said fund will then be paid over to said Detroit Tug' &. Transit Company or to its proctor of record.
'fOMB 17. OWD.
TOMB ". OWEN.
(CIm&U Court, IC. D. Mf.chf.gcm. June
L Om01l1'l' CoUBT!-JUBJSDJCTI01'l'-CONSTRUCTION (W WILL. Where the neCessary diversity of citizenship exists. the c1rcuit court b.. juri.. cUction of a suit for the construction of a will, the execution, validity, and probate of which are recognized, there having been no construction of the will, and no adjUdication of complainant's rights thereunder, either by the probate court in which the settlement of the estate is pending, or by any other tribunal haVing jurisdiotlon of the subject and the parties. Colton v. Colton, 8 Sup. Ct. Rep. 11M, 121 U. B. 301, 308. followed. Broderlck's Wttl, 21 WalL 508, distinguished. L DBED-DELIVIllRy-EvIDENCB. A husband used moneys of his wife in settling his own debts, and thereafter had the use of her funds, without ever accounting. He subsequently conveyed to her all of the property then po.sses.sed by him by a deed, reciting a consideration of 150,000, and reserving a life use of the property. The deed. exeouted with all due formalities, was found after his death in his office safe, in an envelope containing other valuable pa.pers which belonged to his wife, an.d of which he had Charge.; and in a will made shortly before his death he formally deolared that he had "executed and delivered" to his wife suoh a conveyance. He1A, that these facts were sufficient to establish the delivery of the deed.
By the second clau!!e of his will, the husband, after stating that his reasons for. the will were to avoid all questions that might arise about the previous deed to his wife, and to express his wishes as to the use and disposition of the property conveyed to her, devised and bequeathed to her all the real and personal prop.erty of which he died seised or possessed; and by the fifth clause he expressed his desire that his wife "should make free use of all the property so cOllveyed and devised to her for her own use or lor charitable purposes, knowing that-in case any of my immediate relatives or her sister should. by misfortune or otherwise, neel1 any assistance, she would generously share with them; and therefore I feel nb hesitation in leaving with my wife the power to catTJ: out the wishesas.expressed herein." Held, that no enforceable trust was created, for the desire of the testator was not imperative, as it left with the wife the power to judge both when aid was needed and the amount thereof. . 4.. BAMB. By the sixth clause testator provided that "it is my wish that snch property .. my wife may have remaining undisposed of ·at her death that she should previously will the same to her si!lt,er, and to my brothers and sisters, in equal proportions,leaving it entirely with her to make such disposition of her property by will as her judgment shall dictate, merely expressing my desire in the premises; and, should she prefer to retain or dispose of the property!lo conveyed .and devised to her in a manner different from my wishes as herem expressed, she is at full liberty to do so, without having her right or motives for so doing called in question." Held, that no trust was created in favor of the brothers and sisters of testator enforceable apinst the estate of the wife, who died intestate, as the power given to her wu duwretionary.
WlLLs-CONSTRUCTION-CREATION OF TRUST-INTENT OJ' TESTATOB.
In Equity. Bill by Joel P. Toms against Julia Frances Owen for a construction of the will of Robert P. Toms, deceased. Bill dismissed. C. 1. Walker, (Charles A. Kent, of counsel,) for complainant. Wm. J. Gray, (Otto Kirchner, of counsel,) for defendant.
JACKSON, Circuit Judge. The complainant seeks by his bill to obtain a construction of the will of his brother, Robert P. Toms, deceased, and to set up, a?d have in his favor a trust in and to such property as was deVIsed to the WIfe of the testator, and remained undisposed of at her death. The defendant, as the heir at law of Mrs. Sarah Caroline v.52F.llO.5-27