Petition of Carrie Weber and another, ex- Thereupon Carrie Weber and Mary Watkins, cepting to the account of John George Miller, children of the testator, and two of the executor of the will of Henry Miller. From an legatees named in his will, filed a petition in order that the executor restate his account, the orphans' court, excepting to the account he appeals. Order affirmed in part and re- and praying that the order of court approvversed in part. ing the same be rescinded. The grounds of the exceptions were: (1) That the four bills, Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, amounting to $187, collected by the executor, STOCKBRIDGE, and CONSTABLE, JJ. Edward L. Ward, of Baltimore, for appellant. John Holt Richardson, of Baltimore, for appellees. THOMAS, J. Henry Miller, of Baltimore city, died, leaving a last will and testament, which was duly admitted to probate by the orphans' court of the city on the 13th of November, 1913. The will, which was probably written by the testator himself, is as fol should have been distributed under the terms of the will to the three legatees; (2) that certain of the items allowed the executor were not proper charges against the estate; and (3) that the amount of costs, debts, and commissions "should have been charged pro rata against the whole estate." The petition was answered by John George Miller, and after a hearing, at which counsel agreed that the deceased "never had any account in the Savings Bank of Baltimore," the orphans' court held that the bequest of the money in the banks, including the $200 in the German Savings Bank, "constituted a specific lega"I Henry Miller of the City and State of Maryland being of sound mind memory and un-cy," and accordingly passed an order rederstanding do make my last will and testament scinding its previous order approving said in manner and form following. lows: "Baltimore, Oct. 15, 1913. "First I give devise and bequeath to my son John George Miller my house or property No. 12 North Wolfe St. including all Rough and finished Grave Stone and Monuments allso all the Furniture in the house and Tools and all Bills are stanting out and cash in the Baltimore Savings Bank. German Bank of Baltimore City and German American Bank and Old Town National Bank. must be divided among my three Children John George Miller Carrie Weber and Mary Miller. "I hereby appoint my son John George Miller Executor of my estate. "my hand and seal account, and requiring the executor to restate the account, and after applying the $22.85 in the house of the deceased at the time of his death to the payment of the debts and costs of administration, to pay the balance of the costs and debts out of the legaCy to John George Miller and the amount of money in the banks pro rata. From that order John George Miller has appealed. No appeal was taken by Mrs. Weber or Mrs. Watkins, and the only questions presented by this appeal are: (1) Whether the $200 in the German Savings Bank can pass under the provision of the will giving "the cash in the Baltimore Savings Bank" to the three legatees; and (2) whether the legacy of the "cash" in the several banks mentioned in the will is a specific legacy, and liable only to a pro rata contribution to the debts and costs of the administration. "Henry Miller. "Joseph Dormling, No. 6 N. Wolfe St. [Seal.] "John Lindeman, No. 8 N. Durham St. [Seal.]" Letters testamentary were granted to John George Miller, who, on the 6th of January, 1915, returned an inventory of the leasehold property, No. 12 North Wolfe street, appraised at $400, and the stones, tools, furniture, etc., appraised at $358.15, and also an [1] 1. In construing a will the intention inventory of money belonging to the de- of the testator, as expressed by the language ceased, which shows that he had, at the time of the will, must prevail, unless it contraof his death, $22.85 in his house; $250.14 in venes some positive principle of law, and in the Old Town National Bank, $510.75 in the arriving at his intention, the circumstances German-American Bank; $90.20 in the Ger- surrounding him at the time he executed the man Bank, and $200 in the German Savings will are admissible, and should be considered Bank. On the 19th of January, 1915, the in interpreting the words employed. Littig executor settled his first and final account,v. Hance, 81 Md. 416, 32 Atl. 343. in which he is charged with the leasehold property, stones, tools, furniture, money in the house and banks, and with $187, the amount of four "bills standing out" and collected by him, and allowed costs, commissions, and debts paid by him to the amount of $545.31. The house, No. 12 North Wolfe street, and the stones, tools, furniture, and the amount of the four bills collected by him were distributed to John George Miller, and the money in the house and banks, after deducting therefrom the amount of costs, debts, and commissions, was distributed, one-third thereof to the said John George Miller, and one-third to each of the other two legatees. The record contains the agreement of counsel to the effect that the testator never had any money in the "Savings Bank of Baltimore," and the appellee insists that when the testator said "the cash in the Baltimore Savings Bank," he meant the money in the German Savings Bank. This court said in Littig v. Hance, supra, that: "An erroneous addition to the description of a thing which is given when the thing so given is otherwise sufficiently identified will not defeat the gift," —and that the rule is: "That when any property described in a will is sufficiently ascertained by the description, it passes under the devise, although all the particulars stated in the will with reference to it may not be true." The same principle is announced in 40 Cyc. 1559, where it is said: "While words cannot be added to a will, if there is a misdescription of a subject of a devise, and if, after striking out that portion of the description which is false, enough of the description remains, when read in the light of the circumstances surrounding the testator at the time the will was executed, to identify the property he intended to convey, the remaining portion of the description may be so read, and the testator's purpose given effect." In Scarlett v. Montell, 95 Md. 148, 51 Atl. 1051, the property devised was described in the will as a "lot of three acres situated at the corner of Bloomsbury lane and the Rolling road," and it was claimed that the lot in question did not lie on the Rolling road. The evidence showed that the testator only had one three-acre lot on the Bloomsbury lane, and the court said: "We do know, however, that the testator held but one three-acre lot on the Bloomsbury lane, and we cannot doubt that it was his intention to dispose of it and no other. If it be assumed that it was not possible to be at the 'corner of Bloomsbury lane and the Rolling road,' it is evident that the testator has made a mistake in the description of his lot. It is not less clear, however, that, notwithstanding the misdescription, he intended to devise the particular lot lying along the Bloomsbury lane. For the reasons that have already been given we think this cannot be successfully controverted. The lot mentioned in the will is the lot the testator then was seised and possessed of lying along the Bloomsbury lane, and, being so identified that there can be no reasonable doubt as to what the lot is, the erroneous addition cannot defeat the devise." If we apply the above rule to the case at bar, and omit from the description of the property the word "Baltimore," the remaining description is "cash in the Savings Bank," and the only facts presented to the court as tending to show what savings bank the will refers to are that the testator "never had an account in the Savings Bank of Baltimore," and that he had, at the time of his death, $200 in the German Savings Bank. These facts are hardly sufficient to identify the money in the German Savings Bank as the subject of the gift. As said in American Bible Society v. Pratt, 9 Allen (Mass.) 109: "The testator bequeathed property purporting to be that which he had at the time of making his will," -and in the case we are now considering, so far as the record discloses, the testator may have had, at the time the will was executed, money deposited in other savings banks. [2] 2. In reference to the second question presented by the record, if we disregard the punctuation in the will (Black v. Herring, 79 Md. 146, 28 Atl. 1063; 40 Cyc. 1403) the meaning of the testator becomes apparent, and it is clear that he intended to give the "cash" in the several banks named to the three legatees mentioned, and that the bequest is a specific legacy. The court held in Kunkel v. Macgill, 56 Md. 120, that if a "tes tator bequeathes a specific thing as distinguished from all others of its kind, as money in a certain bag, or 'my Maryland State Bonds,' such a legacy it is clear, is specific, and the legatee is entitled to the thing bequeathed," and in the case of Towle v. Swasey, 106 Mass. 100, the court said: "The gift to the son of whatever sum might be on deposit in the Provident Institution for Savings is a specific legacy. It is a gift of property specified and distinguished from all other property of the testator. If there had been no deposit at the time of the testator's death, the son would have had no claim upon the estate; and, on the other hand, whatever cash was then in the bank is not subject to assessment to make up for any unexpected deficiency in the means to pay the other pecuniary legacies. By making it specific, the testator gives the strongest expression of his intention to exempt it from such reduction. It is set apart from the other assets, and must be classed with the other legacies of personal property in the ninth clause of the will, and paid in full before anything is paid to the general legatees." In the case of Mayo v. Bland, 4 Md. Ch. 487, the chancellor held that: "In order to constitute a bequest of personal estate specific, there must be a segregation of the particular property bequeathed from the mass of the estate, and a specific gift of a specified portion to the legatee," and in the case of Chase v. Lockerman et al., 11 Gill & J. on page 209, 35 Am. Dec. 277, the court said: "We think that the bequest to his children of the money to be received under the decree in chancery was a specific legacy, and not liable to abate with the general legacies. The money to be received under that particular decree was given to the legatees; and they had a right to demand it, as such, from the executors. The intent was clear to give that identical money, and not a sum of the like amount generally. When ly the right and property of the legatees, and received by the executors, it became specificalthey had a right to demand it of the executors as such." See, also, 40 Cyc. 1869, 1874; 13 Am. & Eng. Ency. of Law, 15, 16. It is urged on behalf of the appellant that the money in the banks constituted the residue of the testator's estate, and that it must therefore "have been given subject to the debts and other legacy." This court said in Littig v. Hance, supra, that: "Where a fund is given subject to debts or subject to other legacies, the gift of the residue is not specific." But the bequest here in question is not made, by the terms of the will, subject to debts or the other legacy, and there is nothing in the will to indicate that the testator intended the legacy to his son to have priority. The bequest to the three legatees is not of a definite sum of money, but the will separates and distinguishes the cash or money in the several banks named from the other property of the testator, so that it can be identified and delivered to the legatees as the particular fund bequeathed. It follows from what has been said that the $22.85 found in the testator's house and the $200 in the German Savings Bank should be applied to the payment of the debts and costs of administration, and that the legacy | juries sustained by her, by reason of the to John George Miller and the legacy to him alleged defective condition of a stairway and to Mrs. Weber and Mrs. Watkins should leading to the back yard of the premises contribute pro rata to the balance of the where she then lived. debts and costs. 40. Cyc. 1909. ITY. Whether the tenant or a member of his family be injured from defective condition of the premises, the landlord's liability is practically the same. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. 164.] 2. LANDLORD AND TENANT 164-INJURY TO TENANT-FAILURE TO REPAIR-LIABILITY. A landlord's mere breach of contract to make necessary repairs does not render him liable for personal injury to the tenant from defective condition of the premises, but there must have been negligent failure to make repairs. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. 164.] 3. EVIDENCE 243-ADMISSIONS OF AGENT. Admission of a contractor for making repairs for a landlord, made after the completion of his work and the subsequent injury of tenant at such place, that if he had not been working under orders he would have put in a new post, was not binding on the landlord, and inadmissible to show negligence of the landlord. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 908-915; Dec. Dig. 243.] 4. LANDLORD AND TENANT 164-INJURY TO TENANT-WANT OF REPAIRS-NEGLIGENCE. There is no negligence of the landlord, making him liable for injury to the tenant from defective condition of stairs, he having employed and instructed a competent carpenter to do whatever was needed, at least unless defects existing and not repaired were visible to or known by him. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. 164.] [1] The case is peculiar in several respects. The declaration alleges that the defendant is owner, individually and as executor of Eleanor Lucinda Pinkerton, deceased, of the leasehold property known as No. 327 East Twenty-Fifth street, in Baltimore City, and as such rented the property to the plaintiff. The testimony shows that it was fee-simple property, and that, although the appellant is the only heir of Mrs. Pinkerton and devisee of the property in question, he had filed a caveat to the will and was administrator pendente lite of the estate. The record does not include the will or the caveat, or explain why the latter was filed; but it does show that the appellant verbally rented the property, either to the appellee or her husband, or to both. If it was material to determine to whom it was rented, it would be difficult to sustain the allegation in the narr. that it was rented to the appellee, although she and her husband were both present at the time of the renting. But as the liability of a landlord is practically the same to a member of the family of a tenant as to the tenant himself for personal injuries sustained by reason of a defective condition of the premises, we will determine the case regardless of that allegation in the narr. There are 22 bills of exception relating to the admissibility of evidence, and another which embraces 3 prayers of the plaintiff and 15 offered by the defendant (including some which sought to take the case from the jury), besides a number of special exceptions to the plaintiff's prayers; but under our view of the case it will not be necessary to discuss the exceptions or the prayers in detail. The narr. alleges that the defendant agreed to put the property in repair, and keep it in repair during the tenancy, and the other part of it most material to our discussion is as follows: "That said stairway broke and gave way because of the defective condition thereof. That prior to the happening of the injury herein menAppeal from Baltimore Court of Common tioned this plaintiff had complained to the dePleas; Walter I. Dawkins, Judge. Action by Minnie V. Slocumb against Milton H. Pinkerton. Judgment for plaintiff, and defendant appeals. Reversed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. William Colton, of Baltimore, for appellant. J. Cookman Boyd, of Baltimore (Morrill N. Packard, of Baltimore, on the brief), for appellee. BOYD, C. J. This is an appeal from a judgment obtained by the appellee against the appellant for damages for personal in fendant of the condition of the said stairway, and insisted as a condition of the continuance of the tenancy that the same be repaired, and said defendant agreed to make the necessary repairs thereto. That thereafter, but prior to the happening of this accident, the defendant caused certain repairs to be made to said stairway, but the said repairs were improperly, insufficiently, and negligently made, and certain defective timbers were permitted to be and remain in said stairway by said defendant. That by reason of the aforesaid attempted repairs this plaintiff was thereby induced to believe in the safety of said stairway and continued as a tenant of the defendant in said property. The said defective condition, though unknown to this plaintiff, was well known to the defendant, and that said injuries to this plaintiff were caused solely by the fault, negligence, want of care, and wrongful act of the defendant." [2] In Thompson v. Clemens, 96 Md. 196, 53 | and that went off, and I was thrown to the yard Atl. 919, 60 L. R. A. 580, after referring to on top of that post." authorities, we said: "We have no doubt, however, that no action, either in contract or in tort, by a tenant, or one of his family, against a landlord, to recover damages for personal injuries, should be sustained merely because the latter has been guilty of a breach of contract to make necessary repairs in the premises demised." Again we there said: "So it seems to us that the correct rule in a case such as the one under consideration is that the mere failure of the landlord to make repairs which he had agreed to make cannot make him responsible to the tenant, or a member of his family, for damages for personal injuries sustained by reason of the defective condition of the premises, whether such suit be in assumpsit or in case, but in order to recover such damages there must be shown some clear act of negligence or misfeasance on the part of the landlord beyond the mere breach of contract." That opinion concluded by saying: "So, although we are of opinion that a landlord, under contract to repair, may under some circumstances be liable for damages for personal injuries by reason of a negligent failure to make repairs, his negligence must be clearly established as the foundation for such liability." And we went on to say that there was no such legally sufficient evidence of it as would have justified the court below in submitting the case to the jury. The post itself and pictures of it and the broken stairway were admitted in evidence against the objection of the defendant; but, although exceptions were taken, we will not stop to pass on them, and will for the purpose of this discussion assume the action of the court in admitting them to have been proper, as apparently the bottom of the righthand post, the one which broke off, was in bad condition at the time of the accident, although there was nothing on the surface to indicate it. The appellee and her husband testified that some time during the summer before the accident those steps were repaired. Ben S. Johnson, a colored man who did the repairing, said that he went to that house on August 26, 1912, and did four days' work, including during that time the repairs on the steps and other work. In speaking of those repairs, the appellee said: "The colored man Ben came and repaired the steps. To repair the steps he put in two new bottom steps, and to put those in he had to remove the posts, and of course, because of the two steps being off, and the posts being off, I had to go to the yard through the basement kitchen, while Ben was doing the repairing." She was asked if the post was off, and replied: "Yes, the post had to come off to put in the two new bottom steps, and the posts were put back, and it looked then in good order. After Ben had repaired the steps he left and they looked to be all right. The posts were put back, and two new steps put there, and I used them until February 1, 1913." The husband of the appellee said that when they were repaired he was back and forth to and from his work, and was home every evening; that he did not see the man working on them, but he saw the evidence of their having been repaired. A part of his testimony is as follows: We are therefore called upon to examine the evidence, and determine whether it was legally sufficient to authorize the submission of the case to the jury. The appellee and her family had occupied the premises from the middle of August, 1910, to the time of the accident, which she testified happened February 1, 1913. The appellant rented the house to the husband of the appellee, as the appellant claims, or to both, as their testimony would seem to show, at $40 per month, and the appellant was to have a room there and two meals a day, for which he was to allow $6 a week. He was in the employ of publishers of city directories, was absent from Baltimore quite frequently, and when there spent the day away from the house in which "Mr. Colton: After those repairs were made in he lived. The appellee said the housethe summer, if it was in the summer, did you make any further complaints, if any, to Mr. Pin"needed some repairs, and Mr. Pinkerton prom-kerton about the condition of the steps? A. Not ised to put it in repair, and keep up the repairs, after they were repaired. Q. There was nothing for the consideration of $40 per month, and the to indicate there was anything to be done there, payments were to be made as I have stated, and was there? A. No, sir; apparently they were he did some of the repairs before we moved in, all right. Q. And the first intimation that you and he did the repairs from time to time as they had that they were not all right was when your were needed." wife fell; isn't that true? A. Yes. Q. Now, when did your wife fall? A. February 1, 1913." There was a back porch and eight or nine steps leading down to the yard, with a railing on each side. There were posts at the bottom of the railings. The appellee testified that on February 1, 1913, about 7 o'clock in in the evening, she started down those steps "when the fourth step broke at the edge, and "Yes, sir; the fourth step from the bottom, the edge went off that, and my foot was on that, and that threw me, and I grabbed at the railing, "The Court: State when the repairs were made. A. Some time in the summer previous, I think; I don't know the date. The defendant said he thought the repairs were made in October; that he had Ben Johnson make the repairs, but he was not at home during the day. This appears in his testimony: "Tell his honor and the gentlemen of the jury whether at that time there was anything to indicate to you that [there] was anything more necessary to be done than was done? A. No; I employed the carpenter, and I left it to his judg ment. He is a carpenter, and built houses, and had big contracts, if he is a colored man. Q. Was there anything that appeared to you, which you saw that was required to be done, that was not done? A. No, sir; not at all. Q. At the time of the alleged happening of the accident in this case, did you or not know, or was there anything to lead you to believe, that those steps were out of repair-at that time did you know or was there anything to lead you to believe it? A. No." He said he was not there through the day, that he had confidence in the man, as he was a capable carpenter, and did not watch his work particularly; that he knew he put in a couple of new treads, and he repaired the steps substantially for any one to go up and down; that he went up and down the steps, and the carpenter said he had left them in good condition. He was asked on cross-examination: "When you were there fixing those steps, didn't you find that an entirely new set of steps was necessary?" And he replied: "No; I didn't. I would like to put up new steps like all other carpenters, but the others were sound. They were old-looking, of course, but they had been painted dozens of times; they were old-looking." It was sought to show that Ben Johnson told Mr. Slocumb and a young man with him the latter part of February or the first part of March, 1913, that he thought a whole new set of steps and posts were necessary, and that if he had been working for himself, and not under direct orders, he would have put in a new post. His version of what he said was: Johnson testified that he had been a carpenter and in the suburban contracting business for over 28 years. He had built churches, dwelling houses, etc., and had worked for many prominent people about "Mr. Slocumb came out there to see me, and Towson, where he lived. He said he worked pretended that he wanted to see me about coming in and repairing them steps at that house; for the appellant's mother for 18 years, had and I knowing Mr. Pinkerton not being there, built five or six dwelling houses for her, I didn't want to assume any responsibility with which cost from $600 to $1,200, up to a $5,- anybody else, and I told Mr. Slocumb that that 000 house he built for her. He unquestion-work would have probably to be all new, and I didn't care about doing anything to it unless I ably showed that he was experienced and seen Mr. Pinkerton, and that is about the way qualified to do such work as the appellant that language came up." employed him to do on these steps, and that is not denied in the record. In reply to the question, "What was the condition of the steps?" he said: "Mr. Milton seen me in the morning. I had to go very soon, because he always went away, and he said, 'Ben, I want you to repair these steps, and put treads in them, and whatever is needed; and there was only one bad one, but I put on two, the first and the second tread. The first tread was all right, but the second was a bad one, and that is why I put them in; and I had to take off the second one to get on the first one without removing the newel post, and I nailed up all of those steps that had anything loose about them; and as I considered for a repair job I left them in perfect condition, those steps. Q. That was August 26, 1912? A. August 26 to August 29, 1912. Q. Was there anything that might have been done on those steps that was not done at that time to repair them? A. No; there was nothing else." On cross-examination he said Mr. Pinkerton told him, the first day he was there, what he wanted done, and he did not see him any more. This appears in his cross-examination: "Q. What did you do to those steps? A. Put two treads on, the first and second. Q. And how did you go about putting them on? A. The newel post is blocked and nailed to the carriage, and in putting on that first tread we never tear that newel post off, because it will affect it, even if it is sound. Q. And if it is not sound? A. If it is sound; if we tear the newel post off, it will affect it, and we cut out a plug and brace it down between the two posts. There were two posts to that step, and we press it in that way (indicating), and then there is a nozzle out there like that (indicating), and we nail that in, and that helps to hold the newel post. We always do that. "Mr. Colton: Did you do that on this occasion? A. Yes; because we have to tear down here (indicating) by the newel. "Mr. Boyd: Did you take down the second step? A. That didn't interfere, but the first one hooks to the newel. The first tread hugs the That, it will be remembered, was after the steps and railing had given way. [3] The appellee called a Mr. Tarr, who said that he was with Mr. Slocumb on the occasion spoken of, and that Johnson did tell Mr. Slocumb that if he had been working for himself, and not under direct orders, he would have put in a new post. That testimony was objected to, and an exception to its admission taken. If it was admissible for any purpose, it was only to contradict Johnson. It certainly cannot be used for the purpose of showing negligence or misconduct on the part of the appellant. It occurred after the accident-six months after Johnson did the work-and he could not bind the appellant by any admissions or statements made at that time. If authority be necessary for that, see Franklin Bank v. Steam Nav. Co., 11 Gill & J. 28, 33 Am. Dec. 687, Phelps v. G., C. & C. R. R. Co., 60 Md. 536, and Noel Con. Co. v. Armored Const. Co., 120 Md. 237, 87 Atl. 1049, Ann. Cas. 1915A, 1032. [4] There is nothing in the evidence we have referred to, or in any other in the record, which shows any liability on the part of the appellant for negligence or wrongful act. Even if it be conceded that, inasmuch as the post was shown to be in bad condition in February, it must have been so the previous August, when the repairs were apparently made (which would not necessarily follow), there is nothing whatever to show that the appellant was aware of it, or that he had any reason to suspect it. The appellee herself testified that the appellant made repairs when needed. If a landlord employs a competent carpenter to do such |