Moore v. Layton

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 ²⁴⁶ 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The court refused a prayer, offered by the defendant, proposing 'that the case be withdrawn from the juay, and also one submitting the question whether a trust of the -securities was created for the benefit of Mr.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. ²⁴⁷ 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