#### William Kloch, Joseph S. Taylor and Henry Korber *vs.*Wilhelmina Burger and Fielder C. Slingluff, Administrators c. t. a. of Lewis Senft.

*Construction of a will—Legacy—Medicines and drugs—Whiskey.*

S. a wholesale and retail druggist died in the City of Baltimore. Sometime before his death he purchased of 0., a distiller, fifty barrels of whiskey, which were stored, and remained stored at the time of his death, in the distillery bonded warehouse of C., and upon which the government excise duty had not been paid. The deceased left a will which contained the following clause:—“ I give and bequeath my stock of medicines, drugs, paints, and furniture belonging to, or contained in my store, No. 33 hi. Howard street, at the time of my death, to my three clerks in my present employ, to be hold by them, or their heirs or assigns, in the following proportions * * * * with the right and privilege to use and occupy my said store * * in the same manner as I have done up to my death; provided, however, that they or either of them, as long as they shall occupy said store as above mentioned, pay to my sister * * * or her heirs, as hereinafter directed, a rental of fifty dollars per month.” Hjbi.d :

That under the foregoing clause of the will of S., the fifty barrels of whiskey remaining stored in the bonded warehouse, with the excise duty unpaid thereon, at the time of the testator’s death, did not pass to the legatees, the three clerks named.

Appeal from Tlie Orphans' Court of Baltimore City.

William Kloch, Joseph S. Taylor and Henry Korber, filed their petition in the Orphans’ Court of Baltimore City, claiming as legatees under a clause in the will of Louis Senft, deceased, which is set out in the opinion of this Court, to be entitled to fifty barrels of whiskey, as *576forming part of the specific legacy to them. They prayed that the Court would pass an order compelling the administrators c. *t. a.*to distribute to the petitioners the said fifty barrels of whiskey, and directing the said administrators to charge the personal estate of the testator with the excise tax on said whiskey, which had not been paid ■at the time of his death. The administrators c. *t. a.*of the deceased, answered the petition, charging that said whiskey was bought on speculation by the deceased, and ■did not comprise a part of the stock of his drug store on Howard street, and was not intended by him to he taken •as part of his stock, and consequently did not pass to the petitioners under his last will and testament. The respondents denied that they were called on in law, to pay the tax imposed by the United States Government on ■said whiskey, even should the language of the legacy and the facts connected with' the purchase thereof by the •deceased, he sufficient to give the same to the petitioners. After testimony taken, the Court passed an order dismissing the petition. From this order the petitioners appealed.

The cause was argued before Babtol, C. J., Stone, Milleb, Alvey and Irving, J.

*Samuel S. Pleasants,*for the appellants.

*Fielder O. Slingluff,*for the appellees.

Alvey, J.,

delivered the opinion of the Court.

Louis Senft, a wholesale and retail druggist in the City •of Baltimore, died in May, 1881. Sometime before his death he had purchased of Malcolm Crichton, a distiller, fifty barrels of whiskey, which were stored, and remained ■stored at the time of his death, in the distillery bonded warehouse of Crichton, on Holliday street, and upon which ■the government excise duty had not been paid. The *577deceased left a will, which has been admitted to probate, and which contains the following clause :—

“I give and bequeath my stock of medicines, drugs, paints, and furniture belonging to, or contained in my store, Ho. 22 H. Howard street, at the time of my death, to my three clerks in my juesent employ, to be held by them, or their heirs or assigns, in the following proportions, viz., To William Kloch, forty per cent., to Henry Korber, thirty per cent., and to Joseph Taylor, thirty per cent.; with the right and privilege to use and occupy my said store, Ho. 22 H. Howard street, in the same manner as I have done up to my death; provided, however, that they or either of them, as long as they shall occupy said store as above mentioned, pay to my sister, Wilhelmina Burger, or her heirs, as hereinafter directed, a rental of fifty dollars per month.”

The first question presented is, whether the fifty barrels of whiskey, so remaining stored in the bonded warehouse, with the excise duty unpaid thereon, passed to the legatees, the three clerks named, under the clause of the will above recited; and if so, the second question is, whether the administrators of the estate of the deceased are bound to pay the duty and to exonerate the whiskey, for the benefit of the legatees.

There can be no question but that the legacy to the three clerks named, is a specific legacy. *Stewart vs.*Denton, 4 *Douglas,*219; *Bothamley vs. Sherson, L. R.,*20 *Eq. Cas.,*304. But the question here is one of intention to be ascertained by construction of the clause of the will making the bequest; and the language employed must be interpreted according to its proper acceptation, or . with as near an approach to that acceptation as the context of the will, and the circumstances existing at the time of its execution, fairly allow. Words descriptive of the subject-matter of the gift are not to be diverted from their ordinary proper sense and meaning, by extrinsic *578proof to show that the testator attached to them some-peculiar meaning of his own. Parol evidence, it is true, is admissible for the purpose of ascertaining what is comprehended in the terms of a given description, referring to-extrinsic facts; but in letting in such evidence the object is not to change the accepted meaning of terms, but only .to ascertain what the description properly comprehends, when read in the light of the extrinsic facts disclosed. 1 *Jarm. on Wills, (Rand & Tal.*ed.) 739-40, and the authorities there cited. Here the inquiry is, what was properly comprehended in the descriptive terms “my stock of medicines, drugs, etc., belonging to, or contained in my store, No. 22 N. Howard Street, at the time of my death?” It is incumbent upon the parties claiming any particular article by virtue of the bequest, to show that it. is fairly and properly embraced within the meaning of the terms of the gift.

It is to be observed, that the bequest is not of *all my stock in*trade; hut it is of certain specific articles *belonging to, or contained in,*the store of the deceased, at a particular location. If he had had medicines or drugs in any other store than that described, it would not be claimed,, we suppose, that they would pass under the present bequest; and if whiskey, in the quantity here in question,, could be considered either as medicine or drug, it would be difficult to show, under the conceded facts of the case, that *it either belonged to, or was contained in,*the store of the deceased. The whiskey was in a distillery-bonded warehouse, in a different location from that of the drug store, and it was not subject to the owner’s power of removal, except upon payment of the internal revenue tax thereon, and compliance with all the forms of the revenue system.

But can whiskey thus held by the testator, in the quantity in question, be fairly considered as embraced within the meaning of the terms *medicines or drugs f*For if not *579embraced within the meaning of one or the other of those terms, it clearly is not embraced within the meaning of any other terms employed in the bequest.

(Decided 12th July, 1882.)

Now whiskey, according to the extrinsic proof, may be sold by druggists, in comparatively small quantities, *as -medicine,*and doubtless a great many people so take it. But fifty barrels of whiskey, when compared with the ordinary stock of medicines and drugs kept on hand by the testator, or the extent of the drug business done by him, (shown to have been from $30,000 to $40,000 a year,) would seem to bo wholly disproportionate. It is shown that at the time of the death of the testator he had in his drug store nearly nine barrels of whiskey, and that from one to two barrels were disposed of per month; but how so much whiskey was disposed of is made apparent by the testimony of one of the petitioners and legatees in this case, who says, that “ Senft used to sell whiskey in quantities of from one to three and four gallons to private gentlemen; don’t know for what purpose; he did a business of from $30,000 to $40,000; he sold the whiskey at from $3 to $4 a gallon.”

We think it clear, that if Senft really intended to dispose of the fifty barrels of whiskey through his store and to his customers, it was not as a legitimate sale of a medicine or drug that he expected to sell it, but as whiskey in the ordinary retail; and hence in no proper sense, thus dealt in, could it be considered as medicine, and therefore within the meaning of the term used in the bequest. The testator, however, had never incorporated the fifty barrels of whiskey in his stock of medicines or drugs, and whether, if he had lived, ho would have sold any portion of this lot of whiskey in his drug store, is by no means a positive certainty.

We concur with the Orphans’ Court in the order passed by it, and must therefore affirm the order.

*Order affirmed.*