
    JOSEPH L. MOORE vs. LENA BOWEN LAYTON, Executrix.
    ' Gift Inter Vivos — To Talce Effect on Donor’s Death — Declarar tion of Trust.
    
    Where the owner of securities handed them to his nephew with the statement that he wanted the latter to have them “if anything happened” to him, the uncle, and they were placed by the nephew in a place accessible to both, and the uncle continued to cut the coupons and to collect the interest until his. death, there was no perfected gift inter vivos, the intention being to provide for a future and conditional, and not a present and completed, transfer of title. pp. 247, 248
    
      "While no particular form of words is necessary in a declaration of trust, the intention to create a trust should he clearly manifested. p. 248
    That the owner of securities hands them to his nephew with a statement that the latter is to have them if “anything happens” to him, the uncle, does not show an intention to create a trust for the uncle for life and after his death for the nephew, the uncle continuing to have access to the securities, and to cut the coupons and collect the interest until his death. p. 249
    
      Decided January 21st, 1925.
    
    Appeal from the Circuit Court for Worcester County (Duer and Bailey, JJ.)
    Action by Lena Bowen Layton, executrix of Everett M. Layton, deceased, against Joseph L. Moore. Emm a judgment for plaintiff, defendant appeals.
    Affirmed.
    The cause was argued before Bond, O. J., Pattison, Ubneb, Adkins, Obetjtt, and Walsh, JJ.
    
      John W. Staton and John S. Whaley, with whom were Johnson & Johnson on the brief, for the appellant.
    
      James E. Ellegood and F. Leonard Wailes, with whom were William G. Kerbin, and Ellegood, Freeny & Wailes on the brief, for the appellee.
   Urner, J.,

delivered the opinion of the Court.

Certain United States loan certificates and Liberty Bonds, of the par value of $6,450, transferable by delivery, were replevied in this ease from the appellant upon the grlound that they belong to the estate of Everett M. Layton, deceased, of whose will the appellee is the executrix. There is no dispute as to the facts. The securities had been owned by Mr. Layton in his lifetime. They had been kept by him in the Bdshopville Bank, of which he was part owner and cashier. The appellant was his nephew, and. was associated with him in the operation of the bank. A year or more before his death Mr. Layton, having resigned as cashier arid having been succeeded by 'the •appellant- in that position, took the bonds and certificates in question from his private box in the safe of the blank and handed them to the appellant with the statement that he should put them where he (Ithe appellant) would know where to' find them, arid that “if (anything happened to him” (Layton), he wanted the appellant to have the securities. They were placed at once in a vacant and unmarked pigeon hole by the appellant, Who said to Mr. Layton, “here they are whenever you want to see them, .clip the coupions or anything else.” The pigeon hole was in (the vault containing the safe from which the securities had been removed. They remained in the pigeon hole until Mr. Lay-ton’s death, except when he took them out periodically for ■the purpose of cutting the coupons as the interest became payable, and except also when the appellant inspected them occasionally. Mr. Layton continued to hiave free access to the vault after his resignation as cashier, and the right to collect the coupons and collect the interest was exercised by him alone until the time of liis death. The facts we have stated were proved by the appellanlt’s own declarations and testimony.

Ins'tam-ctioris- were granted by the trial court to .the effect that if the jury found the facts to which we have-referred, their verdict should be iu favor of the plaintiff for -the securities described in the writ of replevin. The court refused a prayer, offered by the defendant, proposing 'that the case be withdrawn from the juay, and also one submitting the question whether a trust of the -securities was created for the benefit of Mr. Layton during his life and for the defendant in remainder. Exceptions were taken by the defendant to the rulings on the prayers and on several questions relating to the -admissibility of evidence. The plaintiff obtained a verdict and judgment for the property sought to be recovered, and the defendant has appealed.

It is rather upon the theory of a trust than upon that of a gift inter vivos that -the defense in this case relies. Clearly the transaction under inquiry did not involve a perfected gift. It was intended to provide for a future and conditional, and not for a present and completed, transfer of title. The donation wa's to he effective only if 'and when “anything happened” to the prospective donor. The evident purpose was that the defendant’s right to “have” the securities should depend upon the contingency of his surviving the owner. Unless and until that event occurred, Mr. Layton’s proprietary interest, in the bonds and certificates wtais to continue. Ilis dominion over them was exercised ais fully after as before they were removed from the private box to ¡the pigeon hole. It was simply to enable the defendant to “find” and “have” them after Mr. Layton’s death that they were placed in another receptacle to which both could have access. In the, meantime be had the continuing opportunity to dispose of the securities at his discretion.

In referring to the necessary elements of an effective gift inter vivos, Judge Alvey said in Taylor v. Henry, 48 Md. 550, and Chief Judge Boyd repeated in Howard v. Hobbs. 125 Md. 640: “To make such gift perfect and complete, there must be an actual transfer of all right and dominion over the thing given by the donor, and an acceptance by the donee, or some competent person for him; and i't is essential; to the validity of such gift, that it should go into effect; that is, transfer the property at once and completely, for if it has reference to a future time when it is to operate as a transfer, it. is but a promise without consideration, and cannot be en forced, either at law or in equity. Until the gift is thus made perfect, a locus penitentiae remains, and the owner may make any other disposition of the property'¡that he may think proper.”

In a ease where a 'husband rented a safe deposit box, can-mining his securities,' in the joint names of himself and 'his wife, and gave her one of the keys, Chief Ju.dge McSherry, discussing the question whether a tenancy by the entireties was thus created by gift, said that such ,a tenancy “m'ay have its origin in a voluntary gift by the husband, but, like any other gift, to be valid and effective it must possess certain well-defined and essential qualities. There can be no gift which the law will recognize where there is reserved to the donor, either expressly or as ,a result of the circumstances and conditions attending the transaction, a power of revocation or a dominion over the subject of the gift. There must be no locus penitenliae, and there is always a locus penitantiae when the supposed donor may at any moment undo what he has done. Brewer v. Bowersox, 92 Md. 570; Whalen v. Milholland, 89 Md. 199. * * * The fact that the wife had a, key to the box did not place any restriction on the husband’s control over the property Contained in the box, and i't cannot be asserted as a legal postulate that a mere right of access to the box on the part of the wife during the husband’s life changed the title to the contents of the box. Conceding that be designed to make a gift to his wife of the securities then in the box, still if he was free after March the ’thirteenth, 1899, to do> what be pleased with those seeirrities, notwithstanding the terms of the renting, then there was .a locus ■penitenliae reserved, and consequently there was no perfected' gift, even though in point of fact he did not attempt to exercise the dominion, .which he retained. It is the existence' 'and not the exercise of the locus penitantiae which defeats a- gift inter vivos." In re Bauernschmidt’s Estate, 97 Md. 59, 61.

The alternative theory in this case, that a trust of tire securities was created for the benefit of Mr. Layton for life, and after his death for the defendant, is not sustained by rhe evidence. AYhile no particular form of words, is necessary in a declaration of trust, the intention to create a trust should be clearly manifested. Pearre v. Grossnickle, 139 Md. 274; Geoghan v. Smith, 133 Md. 535; Austin v. Central Savings Bank, 126 Md. 144. In Mathias v. Fowler, 124 Md. 665, it- was said that “in order to establish a declaration of trust -there must be clear evidence o-f -an intention to transfer a present interest to .the cestui que trust, and this requirement, under the decision's in this State, is no>t gratified by evidence which merely shows that a depositor intended the fund to belong, after his death, to another, otherwise every deposit in the name of the depositor and another and the survivor would amount to a deelarlation of trust in favor of the survivor.”

In this case there i's no indication of .any design by Mr. Layton to create a trust. No present interest was transferred, and no fiduciary relation was defined by word or conduct. The only apparent purpose was to provide for a gift which was not to he effective until the donor’s death, .and that object could not be validly accomplished by the method ■adopted.

The rulings on the prayers were in accord with the principles of law which we have found applicable to the facts proved at the trial.

No reference is made in the appellant’s brief to the exceptions to rulings on the admissibility of evidence, and in none of them have we found 'any error.

Judgment affirmed, with costs.  