158 157 *Mr. Chief Justice Fuller delivered the their protest was overruled in a considered opinion of the court: opinion. G. A. 4386. The tariff act of July 24, 1897, provides: *"209. Sugars not above number sixteen Dutch standard in color, tank bottoms, sirups of cane juice, melada, concentrated melada, concrete and concentrated molasses, testing by the polariscope not above seventyfive degrees, ninety-five one-hundredths of one cent per pound, and for every additional degree shown by the polariscopic test, thirtyfive one thousandths of one cent per pound additional, and fractions of a degree in proportion; and on sugar above number sixteen Dutch standard in color, and on all sugar which has gone through a process of refining, one cent and ninety-five one-hundredths of one cent per pound; molasses testing above forty degrees and not above fifty-six degrees, three cents per gallon; testing fiftysix degrees and above, six cents per gallon; sugar drainings and sugar sweepings shall be subject to duty as molasses or sugar, as the case may be, according to polariscopic test." [30 Stat. at L. 168, chap. 11, U. S. Comp. Stat. 1901, p. 1647.] In October, 1897, the Treasury Department issued general regulations (subsequently modified in particulars not material here) governing sampling and classification of sugars under the above-quoted paragraph, which, among other things, declared: "The expression 'testing degrees by the polariscope,' occurring in the act, is construed to mean the percentage of pure sucrose contained in the sugar as ascertained by polarimetric estimation." It was further stated that changes of temperature affect the indications of a polariscope, and to determine by means of it true sucrose contents apparent readings must be corrected as shown by a table accompanying each instrument and embodying the results of careful experiments therewith; when the thermometer is above 17.5° centigrade, the point of standardization, additions must be made; when below, corresponding subtractions. *The interpretation of the statute and validity of the regulations were at once challenged by importers, who claimed that the reading of a polariscope is not affected by change in temperature; and, further, that the term "polariscopic test" in the tariff act of 1897, according to its well-settled commercial use, as well as by the language itself, requires testing only in the way theretofore observed by merchants, and forbids any correction of the result observed by the eye. These contentions were denied by the collector. The importers appealed to the board of general appraisers, and in March, 1899, Under the titles Bartram Bros. v. United States, Howell v. United States, and American Sugar Ref. Co. v. United States, appeal was taken to the circuit court, southern district of New York, which was decided May 4, 1903. 123 Fed. 327. That court reversed the judgment of the general appraisers, holding that the term, "testing by the polariscope," had a well-settled commercial meaning prior to 1897, and must be interpreted according thereto. It declared, however, the preponderance of proof sustained the contention "that there is a variation in the reading of the polariscope, according to variations in temperature at the place where the sugar is tested, and that the corrections and additions provided for by the regulations merely consist in an addition of .3 per cent for each 10 degrees centigrade of temperature above that at which the polariscope is standardized, and that in this way the actual amount of pure sucrose in each sample is more accurately determined than was the case under the old eye test." The circuit court of appeals (65 C. C. A. 557, 131 Fed. 833) reversed the circuit court and sustained the general appraisers. It held Congress intended there should be a scientific determination, by means of the polariscope, of sucrose contents, and that the method prescribed by the Treasury regulations was proper in order to secure the desired result. *The rulings are correctly stated in the headnotes thus: "In construing the provision in paragraph 209, tariff act July 24, 1897, chap. 11, § 1, schedule E, 30 Stat. at L. 168, U. S. Comp. Stat. 1901, p. 1647, regulating duty on sugars according to the polariscopic test, held that the expressions therein, 'testing by the polariscope' and 'shown by the polariscopic test,' are not used with any special trade meaning that would confine them to a particular method of conducting such test, but import an intention on the part of Congress that the method adopted should be the one best calculated to make a scientific determination. "Under the general power of the Secretary of the Treasury to make customs regulations not inconsistent with law, granted by § 251, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 138, it is competent for that officer to prescribe the method of 'testing by the polariscope' the sugars dutiable according to such test under paragraph 209, tariff act July 24, 1897, chap. 11, § 1, schedule E, 30 Stat. at L. 168, U. S. Comp. Stat. 1901, p. 1647; and so long as he acts in good faith, and it does not appear that his regulations operate to make the polariscopic test less accurate than when Congress adopted it, the courts should not interfere with the administrative details confided to him. "Where, for a period of years covering the operation of several tariff acts, the Secretary of the Treasury has made regulations for carrying out certain provisions in those acts, it is to be presumed that subsequent legislation by Congress was enacted with reference to such regulations." At October term, 1904, a petition for a writ of certiorari to bring up these cases for review was presented to this court, and denied. 195 U. S. 635, 49 L. ed. 354, 25 Sup. Ct. Rep. 792. In the present cause counsel stipulated: "It is agreed that the sugars in question were tested and classified in accordance with the Treasury regulations of October 27, 1897, and of February 17, 1899, and that the questions raised are the same as those in the cases of Bartram Bros. v. United States, Howell v. United States, and American Sugar Ref. Co. v. United States, reported in 123 Fed. 327, and in 65 C. C. A. 557, 131 Fed. 833, and it is agreed that the evidence and exhibits in those cases contained on pages 33 to 364, inclusive, and pages 373 to 734, inclusive, of the transcript of record in those cases prepared for the Supreme Court of the United States and contained in the volume filed herewith are to be treated as duly taken and introduced as evidence in this cause." By § 6 of the act of 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549], the judgments or decrees of the circuit courts of appeals are made final in all cases arising under the revenue law, and can only be carried to the Supreme Court by certificate, or on a certiorari. In the aforementioned cases there was no certificate for instruction on any question or proposition of law, and the application for certiorari was denied. The present direct appeal to this court is a mere attempt to obtain a reconsideration of questions arising under the revenue laws and already determined by the circuit court of appeals in due course. Such direct appeals, under § 5 of 1; the act of 1891, cannot be entertained unless the construction or application of the Constitution of the United States is involved. This is conceded, and counsel for appellant attempt to sustain the jurisdiction on the ground that the regulations assumed to add something to the dutiable standard prescribed by the tariff act, and that, in doing so, the Secretary exercised legislative power confided by the Constitution solely to Congress. But this does not constitute a real and substantial dispute or controversy concerning the construction or application of the Constitution upon which the result depends. The admitted duty of the Secretary of the Treasury was to construe as best he could the paragraph relating to collection of duty upon sugars, and to promulgate regulations for carrying it into effect. Rev. Stat. § 251. This and this alone he did. The only real, substantial point involved is whether or not he misconstrued the stat ute, and that gives this court no jurisdiction upon direct appeal. Sloan v. United States, 193 U. S. 614, 620, 48 L ed. 814, 817, 24 Sup. Ct. Rep. 570, and cases cited; United States ex rel. Taylor v. Taft, 203 U. S. 461, 51 L. ed. 269, 27 Sup. Ct. Rep. 148. Undoubtedly Congress, without violating any constitutional provision, could have in terms directed exactly what was prescribed by the Treasury regulations; and prior decisions have held that the statute was properly construed by the Secretary. We concur with counsel for the government that, if the construction or application of the Constitution of the United States, within the meaning of § 5, act of 1891, is involved in every case where one claims that, according to his interpretation of a statute, excessive duty or tax has been demanded by executive officers, the provi sions of that act making decisions of the circuit court of appeals in revenue cases final are of very limited value, and this court must entertain direct appeals from the circuit courts in most tariff and tax controversies, which we regard as out of the question. Appeal dismissed. (211 U. S. 335) EVA A INGERSOLL, as Administratrix | compromise agreement by which the will, of the Estate of Robert G. Ingersoll, De- which, as propounded, disinherited such cliceased, Petitioner, ents, was so qualified in probate that they I received a larger proportion of the estate JOSEPH A. CORAM, Henry A. Root, and than if the testator had died intestate. V. Charles H. Palmer, Trustee. COURTS (276*) — PROPER DISTRICT FOR 1. The objection that a suit in a Federal circuit court between citizens of different states is not brought in the proper district is waived by demurring and answering without raising that question. [Ed. Note.-For other cases, see Courts, Cent. Dig. 815; Dec. Dig. § 276.*] COURTS (§ 493*)-CONFLICT OF JURISDIC- [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 355; Dec. Dig. § 150.*] ATTORNEY AND CLIENT (§ 176*)—LIEN. 6. An agreement to pay a stipulated fee for legal services to be rendered in a will contest, contingent upon success, which agreement, by way of exception in favor of one of the signers, stipulated against any other liability on his part than to pay such fee "out of the funds secured from the estate," gives the attorney, in case his efforts are successful, an equitable lien on such funds for his fee. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 381; Dec. Dig. § 176.*] [No. 8.] cember 7, 1908. 2. The jurisdiction of a Federal circuit court of a controversy between citizens of different states, presented by a bill which seeks to declare and foreclose an attorney's lien upon certain interests in the distribu: Argued March 11, 12, 1908. Decided Detive shares of the property of a decedent within the district, is not defeated because the settlement of the estate is pending in a state probate court, where no interference with that court is sought or decreed, and rights between the parties arising from their transactions and contracts are adjudged and are decreed to be redressed only when the probate court shall have finished its functions. [Ed. Note.-For other cases, see Courts, Cent. 3. A suit to declare and enforce a lien on certain interests in distributive shares of the property of a decedent in the hands of an ancillary administrator is not within the provision of U. S. Rev. Stat. § 629, U. S. Comp. Stat. 1901, p. 503, governing Federal jurisdiction of suits by assignees of choses in action, because plaintiff's right is derived from an heir whose citizenship is the same as that of such administrator, where the plaintiff, who sues as administratrix, and who is a citizen of a different state from the defendant administrator, is suing primarily on the obligation of such heir to her intestate, to secure which a lien was given upon such heir's distributive share. [Ed. Note.-For other cases, see Courts, Dec. Dig. 312."] JUDGMENT (§ 6S9*)-RES JUDICATA-PAR TIES. 4. A judgment against an ancillary administrator in a suit by him to declare and enforce a lien on certain interests in the distributive shares of the property of a decedent is not a bar to a suit founded on the same cause of action, brought by an ancillary administrator of the estate in another jurisdiction. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1212; Dec. Dig. 689.] 5. The condition in a contract to pay an attorney in a will contest a stipulated fee "in case the will is defeated and our clients get their shares" is satisfied where the contest and the attorney's services result in a ON N WRIT of certiorari to the United States Circuit Court of Appeals for the First Circuit to review a decree which reversed a decree of the Circuit Court for the District of Massachusetts in favor of petitioner in a suit to declare and enforce an attorney's lien upon certain distributive shares in the property of a decedent within the district. Reversed. Decree of the Circuit Court, with certain modifications, affirmed. See same case below, 78 C. C. A. 303, 148 Fed. 169. * Statement by Mr. Justice McKenna: The petitioner, as administratrix of the* estate of Robert G. Ingersoll, deceased, sued the respondents and certain other persons, in the circuit court of the United States for the district of Massachusetts, to subject certain interests in the estate of Andrew J. Davis to a lien which is alleged to have accrued to her intestate by the agreement which is set out in the opinion, and by the laws of Montana, in which state the services were rendered. Andrew J. Davis, a man of great wealth, a citizen of Montana, died, leaving property in that state and in Massachusetts. By a will, which was offered for probate in Montana, all of his property was left to his brother, John A. Davis. Certain other of his next of kin, five in number (referred to in the bill as the "five heirs"), associated to contest the probate of the will. Henry A. Root, one of the respondents, and a nephew of Andrew J. Davis, agreed with the four other contestants to conduct the litigation and to procure evidence and counsel at his own expense, receiving therefor an assignment of a part of the prospective distributive shares of the others. Joseph H. 'Coram, another respondent, also acquired an For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *338 interest in the prospective shares of some of the contestants. Robert G. Ingersoll, the petitioner's intestate, was engaged as counsel to conduct the litigation, and Root and Coram entered into the agreement with him, which will hereafter be set out. Upon the trial of the contest the jury disagreed. Pending the preparation for the second trial an agreement of compromise was made, by which Ingersoll's clients received a larger portion of the estate than though Davis had died intestate. It is alleged that this was the result of Ingersoll's services as counsel. "By reason," it is alleged, "and in consideration of the prose cution of said contests, and the force, effect, and stress thereof, as against the proponent of such alleged will, in preventing the admission thereof to probate, and in consideration of the determination of said controversy and litigation, and for no other consideration or reason,” was the compromise effected. It is hence further alleged that the "will was defeated in so far as it could affect the rights, shares, or interest in and to said estate of said five heirs mentioned in said agreement and promise made and delivered by said Root and Coram to said Robert G. Ingersoll, for as much as they were entitled to only 350 eleven hundredths of said estate as such heirs at law of Andrew J. Davis, deceased, and got absolute right and title to 5151⁄2 eleven hundredths thereof, through the prosecution of said contests and decree determining the same." Two hundred and fifty eleven hundredths, it is alleged, were allotted directly to said five heirs and 2651⁄2 eleven hundredths, for their use and benefit, to Charles H. Palmer (a respondent here) and Andrew J. Davis, Jr., trustees. A copy of the decree was annexed to the bill and made part of it. And it is alleged that, by reason of said agree ment and the fulfilment thereof and the "provisions of the laws and statutes of Montana," which are set out, an attorney's lien accrued in favor of said Ingersoll and his legal representatives, "and is existing and is in force and effect upon the portions, parcels, and interests of, in, and to the funds and other property of said Andrew J. Davis, deceased, so acquired for said five heirs." That Root and Coram have conveyed away the real estate vested in them by the decree determining the said will contests, and that the distributions under said decree “have practically exhausted the funds and property of said estate in the state of Montana, and that, by reason of the employment of Ingersoll and the services rendered by him, and by the promises of payment, an equitable lien exists on the funds and effects acquired by said heirs, situate in Boston, Massachusetts," and that such funds and effects should not be distributed or carried away "in default of payments of said indebtedness owing by Root and Coram to the estate and legal representatives of Robert G. Ingersoll, deceased, but that said funds and effects situate in Boston, Massachusetts, should be and remain subject to said indebtedness, and to be resorted to for the payment thereof." It is alleged that John H. Leyson is the duly appointed, qualified, and acting administrator of the estate of Andrew J. Davis, deceased, situate in Massachusetts, and has custody of the funds and effects acquired by Root and his associates, and upon which" the said lien exists in favor of the estate and legal representatives of Ingersoll, and that, if such funds and effects should be distributed, the lien will be defeated. The death of Ingersoll in the state of New York is alleged, and the appointment of Eva A. Ingersoll, administratrix, by the surrogate's court of the county of Westchester, of that state, and her qualification. And it is alleged that she was subsequently appointed administratrix of his estate by the probate court of the county of Suffolk, commonwealth of Massachusetts, situate in that commonwealth, and that she duly qualified as such. It is alleged that the estate of Andrew J. Davis, situate in Boston, and in the hands of said John H. Leyson as administrator, consists of money, convertible stocks and bonds of the value of $450,000, after paying expenses of administration, of which funds and effects Coram and other parties for whom Ingersoll prosecuted said will contest are entitled, by virtue of the decree of the district court of the state of Montana, directly and through Charles H. Palmer and Andrew J. Davis, Jr., to 5151⁄2 eleven hundredths, "acquired as part of the fruits of the labors of said Robert G. Ingersoll in the prosecution of said will contests." That Root, Coram, and their associates have petitioned the probate court of Suffolk county to order distribution of said shares of said funds and effects to them. That all of said 515% eleven hundredths, except the interest owned by Sarah Maria Cummings and the interest owned by Ellen S. Cornue, are subject to the lien of Ingersoll. It is alleged that the interests of Elizabeth S. Ladd and Mary L. Dunbar have been transferred to Root and Coram. A conspiracy and purpose of Coram and Root to defeat the lien of Ingersoll are alleged, and that distribution of the estate in Massachusetts is sought as a means thereto; further, that if the funds and effects be removed from Massachusetts or distributed to Root and Coram before the representatives of said Ingersoll have an opportunity to enforce their lien, the same will be placed beyond their reach and the payment of the indebtedness secured thereby defeated; that the funds and effects remaining in Montana will be required and used to pay indebted ness and expenses of administration there; and that Root and Coram have no tangible property other than their shares and interest in the estate of Davis. It is further alleged that petitioner brought suit in the district court of the state of Montana in her name, as administratrix of Robert G. Ingersoll, to enforce payment of said claim existing in favor of the estate and legal representatives of Ingersoll. That Root and the other defendants therein appeared and demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action, but did not specify or raise the objection that she was not qualified to prosecute said suit, although she alleged her appointment as administratrix by the surrogate's court of New York. That, upon her urging the pendency of said suit against the petition for distribution filed by Root and Coram and their associates, it was objected that said suit had not been brought by an administrator of Ingersoll appointed in Montana. The court sustained the objection. That thereupon John S. Harris was appointed administrator in Montana, and substituted in said suit for petitioner. The cause coming on to be heard in the district court of Montana, Root objected to the introduction of any evidence, on the ground that the complaint therein did not state facts sufficient to constitute a cause of action. The motion was sustained, and, without further proceedings, the court granted a nonsuit and dismissed the complaint on the alleged ground that it did not state facts sufficient to constitute a cause of action; in consequence no trial thereof has been had, nor has the claim and lien of Ingersoll even been adjudicated, nor is it barred by any statute of limitation. The bill prays an injunction against Ley son to restrain him from delivering, and against respondents to restrain them from receiving, said funds and effects, and for the appointment of a receiver, discovery of Coram's interest, and judgment for the same, and that it be declared a lien on such interest. Judgment is prayed against Root for $95,000, with interest, and that the sum be declared a lien on his shares and interests. What else is prayed need not be noticed. There were demurrers to the bill that went to the parties, the jurisdiction of the court, to the merits, and that the judgment of the district court of Montana constituted a bar. The grounds of demurrer to jurisdiction were expressed in the demurrer filed by Root and Coram and Herbert P. Cummings, executor of the last will and testament of Sarah Maria Cummings, one of the five heirs, as follows: "2. These defendants also demur to the bill of complaint upon the further ground that this court has not jurisdiction of this action, because it appears from the said bill that this action is brought to secure from this court a writ of injunction staying proceedings now pending in the probate court in and for the county of Suffolk and commonwealth of Massachusetts, to distribute the funds and effects of the estate of Andrew J. Davis, deceased, situate in the state of Massachusetts, among the persons entitled thereto, or to otherwise dispose of said funds and effects, and this court is forbidden by § 720 of the United States Revised Statutes (U. S. Comp. Stat. 1901, p. 581) from granting a writ of injunction to stay proceedings in any court of a state.” The demurrer of Leyson was more general, stating that the court "had no jurisdiction to grant the relief prayed for in the bill of complaint or any part thereof." And Andrew J. Davis particularized this by the specification that to enjoin the disposition of property in the hands of Leyson as administrator "would be an interference with the proceedings of the probate court of Suffolk county, having jurisdiction of the matter, and would be unauthorized and illegal." The demurrers were overruled except as against certain parties, and except so far as the bill claimed a statutory lien. The court said: "No statutory lien can be maintained, and that portion of the bill must be regarded as ineffectual; and, as it is specially demurred to, it must be stricken out." 127 Fed. 418. The bill was amended: in compliance with the order of the court, making Charles H. Ladd, individually and as administrator of the estate of Elizabeth S. Ladd, a party. The bill, however, was subsequently ordered to be dismissed as to him, Mary Louise Dunbar (one of the five heirs), and Herbert R. Cummings, executor. 132 Fed. 168. They seem, however, to have been regarded as parties until the final disposition of the case, for they joined Coram, Root, and Palmer in an answer. Leyson filed a separate answer. In the answers some of the allegations of the bill were denied and others admitted. The answers also pleaded in bar of the suit the proceedings and judgment in the action brought in the district court of Butte county, state of Montana. Proofs were taken, the allegations of the bill were found to be true, and decree entered for petitioner. 136 Fed. 689. Root, Coram, and Palmer took an appeal to the circuit court of appeals, the other respondents declining to join them, which *341 |