
    JAMES S. CALWELL, Individually and as Trustee, et al., vs. AIMEE C. ROGERS.
    
      Gifts: terms of trust; acceptance; cestui que trust no right to alteration of terms.
    
    Where an aunt and the father united in a voluntary gift to the daughter, and had stock placed in the daughter’s name, the income to he paid to the daughter but the stock delivered to the father, as trustee, to be held by him until his death, to all of which terms the daughter consented, there is no legal or equitable principle that enables the donee to abrogate the terms and limitations of the gift and receive the immediate delivery of the stock. p. 294
    One who accepts a voluntary benefaction, with the understanding and agreement that it shall be subject to the terms of a trust expressly declared and approved, can not be permitted to deny the efficacy of the trust, or to defeat the purpose for which the limitations were imposed. p. 294
    
      Decided December 16th, 1915.
    
    Appeal from the Circuit Court No. 2 of Baltimore City. (Heuisler, J).
    The facts are stated in the opinion of the Court.
    
      The cause was argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Uener and Stockbridge, JJ.
    
      Harry M. Benzinger and Henry H. Dinneen, for the appellants.
    
      J. Pembroke Thom and J. Stanislaus Cook, for the appellee.
   Urner, J.,

delivered the opinion of the Court.

Upon the death intestate of Catherine M. Calwell in August, 1913, her estate passed to her brother and sister, James S. Calwell and Eannie C. Lambert, the present appellants, as her only next of kin and heirs at law. In pursuance of a request made by their deceased sister in her lifetime, that some provision be made for her niece, Annie O. Calwell, daughter of James S. Calwell, the appellants proposed to establish a fund of ten thousand dollars, of which each of them should contribute one-half, to be invested in Mr. Cal-well’s name as trustee, and the income to be paid by him to his daughter during his life, and after his death the corpus of the fund to be paid to her absolutely. It was concluded, however, upon further consideration, that it would be a simpler and better plan to have the stock, in which it was intended to invest the fund, issued in the name of the daughter, and to have the certificates of the stock delivered to her father as trustee and held by him until his death. This modified proposal was fully explained to the daughter and met with her approval. The fund of ten thousand dollars was accordingly provided by her father and aunt and was invested in Baltimore City and national bank stock, the certificates of which were issued in the daughter’s name, but were delivered to her father and have since remained in his custody. The income from the investments has been received by the daughter as it accrued. Shortly before her marriage, in December, 1914, she demanded tbe delivery to ber of tbe certificates of stock field for ber benefit, claiming that they were ber absolute property. Tbis demand was refused on tbe ground that it was inconsistent with tbe conditions upon wbieb tbe fund was raised and invested, and that tbe trustee having charge of tbe certificates would not be justified in subjecting tbe corpus to tbe risk of loss and waste in tbe bands of tbe young and experienced beneficiary. After tbe marriage, tbe demand for the certificates being renewed and not complied with, tbe daughter employed counsel who formally advised Mr. Calwell in writing that be bad been retained for tbe purpose of securing possession of tbe certificates for bis client. Tbe bill of complaint in tbis case was then filed by Mr. Calwell and bis sister, containing allegations upon which tbe above statement of facts is based, and praying tbe Court to assume jurisdiction of tbe trust we have described, and to decree that according to' its terms tbe beneficiary should only receive tbe income during ber father’s life and should not be entitled to tbe stock certificates until bis death, and to further decree that tbe certificates be endorsed to a trustee to be appointed by tbe Court, and that tbe daughter, who was made defendant in tbe case, should be enjoined from instituting or prosecuting any action at law against tbe plaintiffs for tbe possession of tbe certificates pending tbe determination of tbe suit.

Tbe case was beard in tbe Court below upon a demurrer to tbe bill of complaint. Tbe demurrer was sustained and tbe bill dismissed by a decree which ruled that, in view of tbe allegations of tbe bill, tbe defendant was entitled to tbe entire estate in tbe certificates of stock and to their possession. We are unable to agree with tbis conclusion. It was probably based upon tbe theory that tbe trust was merely passive and should therefore be terminated at tbe request of tbe owner of tbe whole beneficial interest. In our opinion tbis principle is not applicable to tbe special state of facts admitted by tbe demurrer. Tbis is not a case in which an inactive trust has been created by will in respect to property devised or bequeathed. It is a case in which a living father, prompted by his parental solicitude, has reserved and desires to exercise, during his life, a right of control over the disposition of an estate which he and his ay-settlor have provided for the benefit of his daughter. It is also a case in which it is alleged that the beneficiary of the trust, who was consulted in advance as to the provision designed to be made in her favor, and who assented to the conditions imposed as a protection against her inexperience, is attempting to convert a qualified into an absolute gift contrary to the trust limitations in which she concurred. As the donors’ purpose was to safeguard the corpus of the fund against improvident disposition by the donee, it may be regarded as certain that they would have adhered to the original plan of creating a complete and active trust, if the donee had not agreed to the simpler method, actually adopted, of restraining the alienation of the estate during the father’s lifetime. The gift having been accepted upon the distinct understanding that it should not be absolute during the life of the father, and that the stock certificates should be held by him until his death, we are aware of no legal or equitable principle which would enable the donee to abrogate the terms and limitations of the gift by demanding and securing the immediate delivery of the certificates. The considerations which determine the effect and operation of testamentary and other trusts, created under ordinary circumstances, do not apply to a case like the present, where both the settlors and the beneficiary participated in the declaration of the trust by agreeing in advance upon its terms. In that important respect the case now before us differs from all those cited in the argument. The question here is not whether the issuance of stock in the name of a proposed donee constitutes a complete and unconditional gift while the donor retains the stock certificates, nor whether the legal effect of a particular trust provision is to vest the entire estate in the cestui que trust, but the question is whether one who accepts a voluntary benefaction with the ■understanding and agreement that it shall be subject to the terms of a trust expressly declared and approved, can be permitted to deny the efficacy of the trust and to defeat the purpose for which its limitations were imposed. It seems clear to us that such an inquiry must be answered in the negative.

It does not follow, however, from the conclusion just stated that we should favor the granting of all the relief sought by the bill of complaint, in the event that its averments are duly proven. As the defendant was apparently taking steps to require the delivery of the stock certificates and to have the trust terminated, we think the bill is maintainable for the purposes of a decree declaring' the trust and restraining the prosecution of any action by the defendant to secure possession of the certificates; but the appointment of a trustee by the Court, as prayed in the bill, is unnecessary, and the prayer that the defendant be compelled to endorse the certificates to a trustee thus appointed is not consistent with the terms of the trust.

Decree reversed, with costs, and cause remanded.  