Calwell v. Rogers

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, ²⁹³ 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