and built under the pavement of a public street. The boy who was injured was on a public street at the time, where he and the public had the right to be; and if the owner leased the premises with the vault appurtenant to it, which was either a nuisance at the time of the demise, or must, in the nature of things, become so by its user, then he was unquestionably liable, and could not protect himself by proving that at the time of the injury it was no longer in his charge. So, in Albert v. State and State v. Boyce the same principles are applied to the owners of public wharves. As was said in Albert's Case: "A wharf furnishing the only mode of ingress and egress to a summer resort, where crowds are invited to come, if in an unsafe and dangerous condition is certainly a nuisance of the worst character. It will not do for the owner, knowing its condition, or having, by the exercise of any reasonable care, the means of knowing it, to rent it out and receive rent for it, but escape all liability when the crash comes. He who solicits and invites the public to his resorts must have them in a reasonably safe condition, and not in a condition to risk the lives and limbs of his visitors." And other cases might be cited, such as Railroad Co. v. Rose, 65 Md. 485, 4 Atl. 899, Irwin v. Sprigg, 6 Gill, 200, and Condon v. Sprigg, 78 Md. 330, 28 Atl. 395, to illustrate the duty of owners of property to protect the public against injury resulting from nuisances on or appurtenant to their premises when the public has a right to be there.

But those cases do not reach the question before us, which is: In the absence of fraud or concealment, is the landlord of the original tenant responsible for any injury sustained by a subtenant, by reason of the condition of the premises, when rented or afterwards,such as a defective balustrade on a porch? There is no implied covenant requiring the landlord to make repairs. Gluck v. City of Baltimore, 81 Md. 326, 32 Atl. 515. "There is no implied warranty on a lease of a house or of land that it is or shall be reasonably fit for habitation or cultivation. The implied contract relates only to the estate, not to the condition of the property." "When a lease contains no express contract of warranty that the property is or shall be fit for the purpose for which it may be rented, there is no implied warranty to that effect; and, in case the property falls down in consequence of some inherent defect, the lessor is not bound to repair, and yet the lessee will be compelled to pay the rent." Hess v. Newcomer, 7 Md. 337. After fully recognizing the landlord's liability to third persons not claiming under the tenant, it is said in Tayl. Landl. & Ten.

occupancy by their defective condition, or even faulty construction, he cannot make the lessor answerable, unless there was misrepresentation, active concealment, or perhaps a total inability on the tenant's part to discover the defect before entering." There are many cases to that effect, of which we will mention Doyle v. Railway Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223; Moynihan v. Allyn, 162 Mass. 272, 38 N. E. 497; Gallagher v. Button (Conn.) 46 Atl. 819; Peterson v. Smart, 70 Mo. 34; Burdick v. Cheadle, 26 Ohio St. 393; Purcell v. English, 86 Ind. 34; Brewster v. De Fremery, 33 Cal. 341; Murray v. Albertson, 50 N. J. Law, 167, 13 Atl. 394; Cole v. McKey, 66 Wis. 500, 29 N. W. 279; Towne v. Thompson, 68 N. H. 317, 44 Atl. 492, 40 L. R. A. 377; Bowe v. Hunking, 135 Mass. 380; Whitmore v. Paper Co., 91 Me. 297, 39 Atl. 1032; Jaffe v. Harteau, 56 N. Y. 398. The reason of the rule is perfectly apparent. If the lessee knows the condition of the premises, and rents it without requiring the owner to repair it, he takes it as he finds it, and has no right to complain of injuries sustained on account of its condition. The owner not being compelled to keep it in repair, if the tenant desires to require that of him, he should so bind him by contract. In the absence of that, he must protect himself against dangers which are apparent to him. A building may be perfectly safe and suitable if used for certain purposes, while it may not be for others, and, if the tenant has had opportunity to inspect it before he rents it, the landlord cannot anticipate that he will use it in a way his intelligence and observation ought to tell him not to use it. If Bowden had been injured by reason of a defect such as is complained of here, he would have had no right to recover against the appellant. The defect was as apparent to him as to his landlady; and if he, with full knowledge of its condition, entered upon the premises, the principle of caveat emptor applies. If that were not so, no landlord would be safe in renting premises out of repair, although the tenant agreed to so accept them. As was said in Robbins v. Jones, 15 C. B. (N. S.) 240, "Fraud apart, there is no law against letting a tumble-down house, and the tenant's remedy is upon his contract, if any." Nor does the plaintiff occupy any better position than Bowden would have done if he had sustained the injury. In Tayl. Landl. & Ten., supra, the author follows what we have already quoted by adding: "And the subtenant, servant, employé, or even customer of the lessee is under the same restriction; because entering under the tenant's title, and not by any invitation, express or implied, from the owner, they assume a like risk." This is quoted with approval in Cole v. McKey, supra; Clyne v. Holmes (N. J.) 39 Atl. 767. See, also, Towne v. Thompson, supra; Bowe v. Hunking, supra; Whitmore v. Paper Co., supra; Robbins v. Jones, supra. In Jaffe v. Harteau, supra, it is said: "The defendant, having leased the premises to Van

Duzer, incurred the same liability to his subtenants for the safety and sufficiency of the premises for the use for the purposes for which they were intended as they were under to him. It is not claimed by the appellant's counsel that the obligation to a subtenant is, in this respect, any greater than that to the lessee." Walsh was a subtenant. He was not there by invitation of the appellant, express or implied, but was there as a tenant of Bowden. There can be no doubt, under the testimony, that he had the privilege of the use of the back porch; but that cannot help his contention. There are cases in which it is held that when the owner of a house rents rooms in it, and reserves the hallways and porches to be used in common by the tenants, the landlord will be liable for their condition; but that is because he has kept them under his control, and no one tenant is under obligation to keep them in repair. But, without stopping to determine whether Bowden might, under the circumstances, have been responsible for the defective condition of the balustrade, the appellant had not reserved any part of the premises. She had rented the whole property to Bowden, and had not retained control over any part of it. He had been in possession of it for over two years, and there is not the slightest evidence to show either that the appellant knew of its dangerous condition or had been called upon or requested to repair it. It is true that some of the plaintiff's witnesses said that from their examination of the wood after the accident they were of opinion that it had been rotten for years. But there is no evidence that the appellant knew, or had any reason to suppose, that it was in such condition. This accident happened, so far as can be told from the testimony reflecting on that subject, by the child falling through a hole in the balustrade, caused by some of the balusters falling out. There is no evidence they were out when the property was originally rented, and surely a landlord who rents a house as this was rented is not required to examine each month to see whether there are any balusters out of a balustrade, or any similar defect in the premises, especially when he is under no legal obligation to make repairs if he finds any needed. But, if she had known the balustrade was thus defective, either when she originally rented or afterwards, she would not have been liable to the tenant or the subtenant, as is shown by the authorities cited above.

If a landlord is to be held responsible for injuries resulting as this did, at the instance of a subtenant, who had the same opportunity to know the condition of the premises as any other tenant would, it would be a responsibility that few would care to assume. Walsh had been over the porch the day of the accident, and had also lived in the house on a previous occasion, a few months before the child was killed. He therefore knew, or had the opportunity to know, the condi

tion of the balustrade. Mrs. Smith did not know it, so far as appears from the record, but, according to the contention of the appellee, she is to be held responsible merely because she is the owner, although the house was not in her possession, but was in that of her tenant's tenant. Bowden himself unquestionably could not have recovered for an accident, but Walsh, who only had the right to be there through Bowden, seeks to do so because he claims to be a third party. If that could be done, then, after a landlord has rented his house to a person who took it as he found it, the latter could make him responsible to a half dozen or more persons by simply renting out a room to each with the use of the halls and porches in common. We do not understand the law to go to that extent. On the contrary, when one goes into possession of premises, or part, thereof, with the right to use other parts in common with the other tenants, as a subtenant, he occupies no better position against the owner than the original tenant would for injuries sustained by reason of the defective condition of the premises, which was equally apparent to all observers. A few nails and a board or two would have remedied this trouble; and certainly, in the absence of notice to her, the appellant might well have assumed that neither Bowden nor those occupying the rooms would permit the balustrade, or any part of it, to give way or remain away, to the danger of any one, when it could so easily have been fixed, so as to have avoided such an accident as occurred.

Albert's Case and others of that kind are wholly different from this. Of course, the law will not permit an owner to rent property of a public character where people in large numbers are likely to gather, if he knows, or ought to know, it is unsafe, and then shelter himself behind a lease. There are a number of cases in which the owners had leased wharves, public halls, piers, or other property of a public nature, and were held liable. Some of them, including Albert's Case, are cited in those we have referred to. The public are deemed to be invited in such cases by the owners, and they cannot receive rent for such uses, and permit their tenants to bring, in large numbers, upon their property, those who do not have the opportunity to inspect the property, unless they have exercised due care to see that it is safe. Such a place in bad condition is, indeed, "a nuisance of the worst character." So with defects and dangerous places in and about public highways, where the public have the right to be. But such cases can have no controlling effect in one such as we have before us, and for the reasons we have given the appellant is not liable.

As this suit is for the loss of the services of the child, which was under the care and control of her father, the equitable plaintiff, who seeks to recover, it is, of course, unnecessary to discuss it from the standpoint of

the child. She was only there at the instance of her father, and as he, by reason of his relation to the property as tenant of Bowden, cannot hold the owner responsible for such defect, he cannot recover against her for the death of her child, even if a member of the family of a tenant could sue for injuries sustained when the tenant could not, which has been decided in the negative in Monihan v. Allyn, supra, and elsewhere. As we are of the opinion that the plaintiff was not entitled to recover, the prayer, offered at the end of the case, instructing the jury that there is no evidence legally sufficient to entitle the plaintiff to recover, and that their verdict must be for the defendant, should have been granted. It is, therefore, unnecessary to discuss any of the other points raised. Judgment reversed, without awarding a new trial; the equitable plaintiff (appellee) to pay the costs.

EST ON LEGACIES-COMMENCEMENT OF
INTEREST-TRUSTEES-JUDGMENTS.

1. Infant legatees entitled to enjoyment of a vested legacy on reaching their majority filed a bill against the executors praying that the legacies might be treated as trust funds in the hands of the executors, and that the court would assume jurisdiction of the trust and supervise the administration for complainants' support and education. The executors, by answer, expressed their willingness to become trustees, and a decree was entered describing them as such, and directing them to pay a certain sum to the infants' guardian monthly until further order of the court; and thereafter the legatees filed a petition asking for an accounting under the court's direction. Held, that the court was not without jurisdiction to entertain the petition on the ground that the matters had been adjudicated between the parties, and that no estate was being administered in the court.

2. Where a testator's will directed that certain stock and a certain sum of money should be given by the executors to certain grandsons, then in being, whenever convenient, after their arriving at age, the grandsons took a vested legacy.

3. Where for some time prior to testator's death he had contributed a weekly sum to the support of infant grandsons, and his will directed that certain stock and money should be given them after their arrival at age, the legacy being a vested one, and testator having stood in loco parentis to the legatees, they were entitled to interest on the sum bequeathed and on the income of the stock from testator's death.

4. Where testator's will declared that a certain sum should be given to each of his grandsons who might live to reach the age of 21, the legacies were contingent ones.

5. Where testator's will declared that a certain sum should be given to each of his grandsons, who might live to reach the age of 21, the legacies, being contingent ones, would not bear interest until the vesting of the title on the happening of the contingency.

Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.

"To be officially reported."

Petition by Robert P. Webb and others against William Rollins Webb and others for an accounting. From an order allowing a counsel fee out of the income of certain legacies, defendants appeal. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.

Rhodes & Rhodes, for appellants. Frank Gosnell and James W. McElroy, for appellees.

SCHMUCKER, J. This is an appeal from an order allowing a counsel fee out of the income from certain legacies held by the appellants in trust for the infant appellees. The reasonableness of the amount of the fee is admitted, but the appellants deny that they have any funds out of which to pay it, and thus raise for determination the main issue in the case, which is, from what time do the legacies bear interest? William P. Webb, the grandfather of the infant appellees, who are the children of his deceased son, George P. Webb, in his will gave to his two sons, William R. and Armstead M., all of his estate of every kind other than that described in the following clause: "Excepting only the ten shares of the stock of the Lorraine Cemetery Company of Baltimore City and the ten lots in the said cemetery which were formerly the property of my deceased son, George Prescott Webb, and which became mine upon the death of my sister Eliza Ann Webb, to whom they had been transferred, to my grandsons, or the survivors or survivor of them, the sons of my deceased son, George Prescott Webb, to whom, or to the survivors or survivor of them, I also desire my executors hereinafter named to give at such time or times as they may find convenient and in accordance with their best judgment, not earlier, however, than they or either of them shall reach the age of twenty-one years, the sum of ten thousand dollars each." The two living sons, William R. and Armstead M., who are the appellants, were named as executors in the will. The testator, by a codicil to his will, provided as follows: "Whereas, in said will in the clauses succeeding the one beginning ‘and excepting only,' etc., there is an omission that renders said clauses ambiguous, and it is my purpose and intention by this codicil to correct said ambiguity, and also to make certain other changes in my will aforesaid: Now, therefore, I will and bequeath as follows: That the ten (10) shares of the stock of the Lorraine Cemetery Company of Baltimore City and the ten (10) lots in the said cemetery formerly the property of my deceased son, George Prescott Webb, which became mine on the death of my sister Eliza Ann Webb, to whom they had been transferred, be given to my grandsons (or to the survivors or survivor of them), the sons of my deceased son, George Prescott Webb, at such time or times as my executors hereinbefore named may find convenient, and

their legacies until after they reached 21 years of age, and that in case of the death of either of them before arriving at that age his legacy would lapse into the estate of the testator.

*

I give, devise, and bequeath to each of my grandsons, the sons of my deceased son, George Prescott Webb, who may live to reach the age of twenty-one years, the sum of one thousand dollars. I give, devise, grant, and bequeath all the residue of my estate, real, personal, and mixed, of every description, and wherever situated, to my two sons, the Reverend William Rollins Webb and Armstead Moore Webb, or the survivor of them, absolutely." She also made the appellants her executors. William P. Webb died on December 23, 1895, and his wife died on November 22, 1898. The wills of both were admitted to probate, and the appellants qualified as executors of each will. The equitable appellees were infants of tender years at the death of their father, George Prescott Webb, who left them entirely without means of support. They were taken to the residence of their aunt, the legal appellee, who is a seamstress depending upon her own labor for her maintenance. The grandfather, William P. Webb, paid to the aunt the weekly sum of five dollars as long as he lived for the board or towards the support of the infant orphans. | After his death his wife continued to make the same weekly payment until she died, and after that the appellants made the weekly payment for account of the legacies until the institution of this suit. The bill of complaint was filed by the appellees, who are still infants, by their aunt, who had been appointed their guardian, setting forth the facts already stated, and averring that the appellants had ample assets to pay the legacies of both wills in full. It prayed that the legacies under each will to the appellees might be treated as trust funds in the hands of the appellants, and that the court would assume jurisdiction of the trusts, and supervise their administration for the support and education of the appellees, and for general relief. The appellants did not assume a hostile attitude to the proceeding, nor object to the joinder of the two trusts in one case, which had been made for the purpose of economy. They answered the bill, admitting most of its allegations of fact, including the possession by them of assets sufficient to pay the legacies, and expressing their willingness to pass over the amount of the legacies from themselves as cxecutors to themselves as testamentary trustees, and to give bond for the faithful performance of the trusts of the two wills pertaining to the respective legacies. They, howevci, in their answer, contended that the ap

After testimony had been taken establishing the facts of the case, an order of court was passed by consent on June 23, 1899, describing the appellants as trustees having in charge the legacies devised to the infant appellees, and directing them to pay to the guardian of the appellees the monthly sum of $32.50 until the further order of the court in the premises, and providing that such payments, as well as the like payments theretofore made, "be a charge and credit upon the respective legacies." The appellants then filed a duly-approved bond for the faithful discharge of the trust reposed in them respecting the legacies to the appellees under the wills of their grandfather and grandmother, or by the order already passed or such orders or decrees as might be thereafter passed in the case. The court did not, by its order, formally assume jurisdiction of the trusts of the wills in respect to the legacies to the appellees, or direct them to be thereafter executed under its supervision; but that was the practical result of the order, as it gave directions in reference to the performance of the trusts, and declared that the order should be operative only until the further order of the court; thus plainly indicating a purpose to retain the bill for further action thereon. The appellants were not designated trustees in either of the wills, but the duties imposed upon them in reference to the custody of the legacies for an indefinite period were more appropriate to the office of trustee than that of executor, and they, by their answer filed in this case, expressed their willingness to turn over the legacies from themselves as executors to themselves as trustees, and give bond in the latter capacity, which they have since done; and the order of court of June 23, 1899, passed with their assent, treated and described them as trustees. They cannot now retrace their steps, and elect to act as executors. State v. Cheston, 51 Md. 352. About three months after the date of the order last referred to, the appellees filed a petition in the case asking for an accounting under the court's direction of the moneys paid to them, or for their ac count or benefit, by the appellants, since the deaths of the testator and testatrix. Upon this petition an order was passed referring the case to the auditor to state an account. After the case went to the auditor, the coun sel for the appellees filed a petition asking to be allowed a counsel fee for their profes sional services in the case. Annexed to this petition was the certificate of several reputable members of the bar suggesting $250 as a fair and reasonable fee. An ex parte order was passed by the court allowing the fee as prayed. The appellants then filed two suc

cessive petitions, in which they prayed that the order referring the case to the auditor to state an account, and also the order allowing the counsel fee, might be vacated, because the order of June 23, 1899, was an adjudication of the matters at issue between the parties, and that the petitioners had no estate in their hands that was being administered under the direction of the court, and that, therefore, the court had no jurisdiction to pass the orders. The parties were then heard in argument by the court which passed the order appealed from determining that the legacies to the appellees were in the hands of the appellants as trustees, and that the petitioning counsel were entitled to compensation for their professional services, and fixing the fee at $250,-the reasonableness of that amount not being objected to by counsel for the trustees,--and directing it to be paid out of the income of the trust estate. The order appealed from did not, in terms, pass upon the position asserted by the appellants that the order of June 23, 1899, was a final adjudication of the matters at issue between the parties; but it is evident from the face of the order of June 23d that it was not intended to be final, as it was, by its own terms, to be operative only until the further order of the court. The case is still open for the determination of the issues raised by the bill of complaint, which contained a distinct prayer that the court would assume jurisdiction over the legacies as a trust fund, and supervise and direct the administration of the trust. All questions arising incidentally to such administration may be heard and determined in this proceeding.

We think that the devise and legacies given to the equitable appellants by the will of their grandfather were vested, and that the direction as to the time of their payment related to the enjoyment, and not to the vesting. This court has in a long line of decisions announced and reiterated the doctrine that the law favors the early vesting of estates. Even in the case of devises and legacies in remainder of which the devisee or legatee does not come into possession until after the expiration of a life estate, it has uniformly been held that the postponement of the time of enjoyment will not defer the vesting of the gift, which will be held to be vested whenever it can fairly be done without doing violence to the language of the will. Spence v. Robins, 6 Gill & J. 507; Lark v. Linstead, 2 Md. 420; Tayloe v. Mosher, 29 Md. 443; Fairfax v. Brown, 60 Md. 50; Crisp v. Crisp, 61 Md. 149; Vonderhorst v. Vonderhorst, S8 Md. 129, 130, 41 Atl. 124. "The general rule is that any devise or bequest to a person or persons in esse, unless there be some clearly expressed desire or manifest reason for suspending or deferring the time of vesting, confers an immediately vested interest, although the time of enjoyment may be postponed." Dulany v. Middleton, 72 Md. 75, 19 Atl. 149. In the case before us the 48 A.-7

devise and legacy are made directly to persons in esse, named in the will, without the intervention of any intermediate estate. It is true, the executors are directed to pay over the legacies at such times as they may find convenient, and in accordance with their best judgment, and not before the legatees shall have reached the age of 21 years; but these directions relate merely to the time of enjoyment, and are not of the substance of the gift. The expression "the survivors or survivor of them," used in connection with the gift to the grandchildren, is, in our judgment, to be referred to the date of the death of the testator, as their presence in the will in the connection in which they are used does not manifest anything like a clear intention on the part of the testator to postpone the time of vesting of his gifts to his grandchildren. Ordinarily, a legacy bears interest only from the time at which it is, by the terms of the will, made payable; but it is well settled that where the testator stands in loco parentis to the legatee, and the latter is otherwise unprovided for, interest will be allowed upon the legacy from the death of the testator, notwithstanding the fact that a future time is fixed for its payment. Budd v. Garrison, 45 Md. 420; Vonderhorst's Case, supra. One who stands in loco parentis is defined by this court in Vonderhorst's Case as a person "who means to put himself in the situation of the lawful father of the child with reference to the father's office and duty of making provision for the child." Evidence of the intention on the part of a testator to stand in this relation to his legatee may be found upon the face of the will from the nature of its provisions, or in the conduct of the testator and in the circumstances surrounding him and the beneficiary. Vonderhorst v. Vonderhorst, supra, and cases there cited. In Rogers v. Soutten, 2 Keen, 598, a testator in his lifetime voluntarily became bound to the parish for the support of an illegitimate child of his son, and made weekly payments of three shillings for that purpose, with a few exceptions, as long as he lived. It was held by Langdale, M. R., that the testator had placed himself in loco parentis to his grandchild, and that interest was payable from his death on a legacy given by him to the child, although by the terms of his will the legacy was made payable on the child's attaining 21 years of age. In the present case the legatees had for some time prior to the testator's death been infant orphans of tender years, and absolutely without means of support. They were, as we have already said, taken charge of by an aunt, who is a single woman, earning her liv. ing by sewing; and the testator paid to her five dollars per week for their board, or for the expense of their maintenance. The aunt testified that this weekly sum, together with occasional gifts of clothing, and a donation of $30, constituted the sole income or means of support of the legatees until recently, when