In the case of Flynn v. Canton Co., supra, the ordinance required every person or incorporated society using or occupying any house, store, etc., to remove snow from the pavements in front of "the respective premises" used and occupied by them under the direction of the police officers, and declared that it should be the duty of the police officers to cause the snow and ice to be removed. The suit was against the appellee to recover damages for injuries sustained by the plaintiff in consequence of slipping and falling upon ice covering the pavement in front of the premises occupied by the appellee. The court held that the appellee was not liable, and Judge Miller in disposing of the question, after referring to the provisions of the ordinance, said: "The city was then provided with the means and power to discharge that duty. In the exercise of that power, it saw fit to provide by ordinance that the owners and occupants of premises abutting the sidewalks should either remove the snow and ice therefrom or be charged with the cost of such removal if done by its own officers or employés, besides being subjected to a penalty for each neglect. The property owners were thereby made the agents of the city for that purpose, just as the police force was. The two are placed on the same footing with respect to the liability we are now considering. It is made the duty of the former to do it in the first instance, and the duty of the latter to cause it to be done in case of neglect or refusal by the former. If a private action for damages lies against the former by reason of neglect to discharge the duty imposed by this ordinance, it lies equally against the latter. If it lies against the latter, then every ordinance defining in similar terms the duties of police officers, street commissioners, and other officials, agents, or employés of the city subjects them to a like responsibility. We cannot think such a result was ever contemplated by the framers of ordinances of this character. We find it supported by no adjudged case, and in our opinion it is not sustained by any sound legal principle. Again the persons upon whom this ordinance operates are provided with no means and armed with no power adequate to meet the responsibilities that would be thus imposed on them."

The declaration charges that the injury complained of was the direct result of the

urged to it by the county commissioners is based upon their construction of the act of 1910. But we hold, for the reasons stated. that that act does not relieve them of liability for such injuries or impose that responsibility upon the county road engineer. It follows that the court below erred in sustaining the demurrer of the county commissioners, and that the judgment, which is in favor of both defendants, must be reversed. Judgment reversed, with costs, and a new trial awarded.

(120 Md. 329)

LEWIS v. LOGAN et al. (Court of Appeals of Maryland. April 10, 1913.)

1. EXECUTORS AND ADMINISTRATORS (§ 22*)— ADMINISTRATOR PENDENTE LITE-APPOINT

MENT.

Under Code Pub. Civ. Laws, art. 93, § 68, providing that, where the validity of a will is contested, letters of administration pendente lite may, in the discretion of the orphans' court, be the largest legatee in the will, or to the person granted to the person named as executor, or to who would be entitled to the letters by law as in case of intestacy, if the person first entitled by law as in case of intestacy renounce the right to administer, the right passes to the next of kin, and the court may in its discretion appoint such next of kin in preference to the executor or the largest legatee under the law. and Administrators, Cent. Dig. §§ 116-127; [Ed. Note.-For other cases, see Executors Dec. Dig. § 22.*]

2. EXECUTORS AND ADMINISTRATORS (§ 17*)—

APPOINTMENT.

class are equally entitled to be selected as adWhere several persons forming a distinct ministrator, the selection is committed to the discretion of the orphans' court.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]

Appeal from Orphans' Court, Cecil County. Petition by Alice Y. Logan and Mary A. Logan for the appointment of administrators pendente lite for the estate of Joseph R. Burns, deceased, which was answered by Joseph W. Lewis. From an order appointing George C. and R. Harry Logan, as such administrators, Lewis appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Joshua Clayton, of Elkton, for appellant. Frederick T. Haines, of Elkton, for appellees.

PATTISON, J. Joseph R. Burns, late of Cecil county, Md., died on November 15, 1912. On November 19 Alice Y. Logan and Mary A. Logan, sisters of Joseph R. Burns, filed their petition in the orphans' court, alleging that the said Joseph R. Burns died at the time aforesaid unmarried and without issue surviving him, leaving them as his next of kin, and that Joseph W. Lewis the appellant in this case, son of Amy Lewis, a deceased sister of the petitioners and Joseph R. Burns, deceased,

was about to offer for probate in said court a paper writing, dated the 6th day of November of the same year, purporting to be the last will and testament of Joseph R. Burns, in which the appellant was named as executor and sole beneficiary; and in their petition they allege that such paper writing was not the last will and testament of Burns but that he died intestate. They further charge in said petition (1) that the alleged will was not executed by him when he was of sound and disposing mind and capable of making a valid deed or contract and (2) that it was procured by undue influence exercised and practiced upon him, and asked that the will should not be admitted to probate and that letters testamentary should not be granted to the said Lewis. On the day that this petition was filed, the said will, naming Lewis executor and sole beneficiary, was offered for probate in said court, and on the following day the petitioners aforesaid renounced their right to letters of administration pendente lite upon his estate, and with such renunciation filed a petition in which they allege the necessity for the appointment of an administrator pendente lite, and asked that George C. and R. Harry Logan, residents of the county, be appointed such administrators.

[1] To this petition the appellant answered, contending that such an administrator was not necessary, but in his answer stated that, should the court differ with him and decide that such letters of administration should be granted upon the estate, then he alleged they should be granted to him under section 68 of article 93 of the Code of 1912, which provides that: "In all cases where the validity of a will is or shall be contested, letters of administration pending such contest may, in the discretion of the orphans' court, be granted to the person named as executor, or to the person to whom the largest portion of the personal estate may be bequeathed in such contested will, or to the person who would be entitled to letters of administration by law, as in cases of intestacy." In his answer he alleges that he is the person entitled to letters of administration in each of the first two of the three classes above mentioned, and that, inasmuch as Alice Y. Logan and Mary A. Logan, sisters of the deceased, had renounced their right to administer, the third class was exhausted, "because the said Joseph R. Burns did not leave a widow, nor child, nor grandchild, nor father, nor brother surviving him, and there remains no one mentioned in the third class who would be entitled to letters of administration by law, as in cases of intestacy," and therefore the selection had to be made from one of the two preceding classes, which would entitle him to the appointment.

tors pendente lite. It is from this order that the appeal is taken.

The question here presented is a narrow one and is not, we think, difficult to determine. It is conceded that the appointment of the sisters, or one of them, would have been permissible under section 68 of article 93, and it is because of their renunciation that the contention is made by the appellant that no selection or appointment of an administrator pendente lite can be made from the third class named in the statute, and that as a result the selection must be made from one of the two preceding classes. The question involved, therefore, depends solely upon the effect to be given to the renunciation of the sisters. The language of the statute is "to the person who would be entitled to letters of administration by law, as in cases of intestacy." We understand the contention of the appellant to be that the person entitled to letters by law, as in cases of intestacy, means the person first entitled and no other, and that, should such person renounce, the right is not conferred upon the next of kin or upon those that would have been entitled had such person renouncing not been living at the time the letters were to be issued. We cannot adopt this construction of the statute. In ascertaining its meaning, we are to inquire who would be entitled to letters of administration upon the estate of Joseph R. Burns should it be held he died intestate? Would the statute confer this right alone upon the sisters, or would it pass to the next of kin, should they renounce the right to administer? There can be no question as to its passing to the next of kin.

Section 37 of article 93 of the Code of 1912 provides: "If any person entitled to administration shall deliver or transmit to the orphans' court a declaration in writing that he is willing to decline the trust, the court shall proceed as if such person were not entitled." Therefore, upon the renunciation of the sisters, the orphans' court were to proceed as if such persons were not entitled, and the right to letters passed on to the next of kin. Section 22, art. 93, Code of 1912. The statute, in speaking of the person entitled to letters of administration by law, means the person entitled, not at the time of the death of the decedent, but at the time letters are to be issued. Griffith v. Coleman, 61 Md. 251. Therefore, at the time letters in this case were to be issued, the sisters were not entitled, by reason of their previous renunciation, or at least under the statute were to be treated as not entitled thereto.

kin was the niece, Mrs. Addison. The fact that she had no interest in the estate so long as her mother lived did not disqualify her." There can be no question that the right to administer upon the estate of the decedent in this case, should he be held to have died intestate, after the renunciation of the sisters, would pass to the next of kin. Therefore the next of kin would be eligible to appointment as administrator pendente lite as of the third class mentioned in the statute, and it was in the discretion of the court to make its selection of administrator pendente lite from any one of the three classes.

[2] The appellant and appellees were all nephews of the decedent. The appellant is the son of a deceased sister, while George C. and R. Harry Logan are sons of the said Mary A. and Alice Y. Logan, respectively, surviving sisters of the decedent. Therefore the appellees, as next of kin, are equally entitled with the appellant to letters of administration pendente lite upon the estate of their deceased uncle; and it was discretionary with the orphans' court to which of them letters should be granted.

In the case of Bowie v. Bowie, 73 Md. 235, 20 Atl. 917, Judge McSherry, speaking for the court, said: "When the statute is silent (as to which one of a class consisting of several persons, letters of administration shall be granted), the authority to determine this must rest somewhere, and confessedly no tribunal other than the orphans' court has any jurisdiction at all over the subject of the appointment of an administrator. It of necessity follows, then, that whenever the contingency arises, as it must often do, where one of several persons forming a distinct class, all of whom are equally entitled, is to be selected as an administrator, that selection (the designation of one of them to the exclusion of others) is committed to the discretion of the orphans' court, and this court has so expressly decided." Cook v. Carr, 19 Md. 1.

Therefore, as the orphans' court of Cecil county were authorized and empowered, in the exercise of their discretion, to grant letters of administration pendente lite upon the estate of Joseph R. Burns, deceased, unto the appellees, the order appealed from will be

2. INJUNCTION (§ 118*)-RULES GOVERNINGSUBSTITUTE FOR SPECIFIC PERFORMANCE.

specific performance apply equally to a case The rules applying in case of a suit for for a bill for perpetual injunction when the injunction accomplishes all of the objects which could be accomplished by a successful prosecution of a bill for specific performance.

[Ed. Note. For other cases, see Injunction, Cent. Dig. 88 223-242; Dec. Dig. § 118.*] 3. SPECIFIC PERFORMANCE (§ 114*)—PLEADING -SUFFICIENCY OF BILL.

A bill for specific performance must accurately state the contract, and the proof must show the contract alleged to be clear and explicit thereon.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 356-370, 372; Dec. Dig, § 114.*]

4. INJUNCTION (§ 23*)-Defenses-DAMAGE

TO DEFENDANT.

An injunction will not be granted to enforce an oral agreement to keep the road open where no real harm will be done to plaintiff by the closing of the road and very great damage would result to defendant by granting the relief.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 22; Dec. Dig. § 23.*] 5. SPECIFIC PERFORMANCE (§ 16*)—DefeNSE— DAMAGES TO DEFENDANT.

result in great damage to defendant and do If the enforcement of an agreement would plaintiff comparatively little good, specific performance will not be compelled.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 29, 35, 36; Dec. Dig. § 16.*]

Appeal from Circuit Court, Anne Arundel County, in Equity; James R. Brashears, Judge.

Suit by William H. McDowell against Thomas E Biddison and wife. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

James M. Munroe, of Annapolis, for appellant. Robert Moss, of Annapolis, for appellees.

BURKE, J. Thomas E. Biddison, and Amy D. Bidaison, his wife, were the owners of a tract of land situated on the Magothy river in Anne Arundel county. The property was subject to a mortgage held by George W. Lowenstein and wife. On the 18th day of June, 1909, Biddison and wife and Lowenstein and wife granted and conveyed to William H. McDowell, the appellant, four acres of the tract. The property granted was particularly described by metes and bounds, and immediately following the description the deed contained the following clause: "Also the right to use in common with others a roadway twelve feet wide (as much of the same as is embraced in the above de scription being reserved for use in common with other lot owners) beginning at the end of the second line in the description and the whole tract recently running across laid down by the said Thomas E. Biddison