Moore v. Layton

• Citation: 127 A. 756,147 Md. 244
• Decision Date: 21 January 1925
• Docket Number: 76.
• Parties: MOORE v. LAYTON.
• Court: Court of Appeals of Maryland

127 A. 756

147 Md. 244

MOORE v. LAYTON.

No. 76.

Court of Appeals of Maryland

January 21, 1925

Appeal from Circuit Court, Worcester County; Robert F. Duer and Joseph L. Bailey, Judges.

Replevin by Lena Bowen Layton, executrix of Everett M. Layton deceased, against Joseph L. Moore. Judgment for plaintiff and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, and WALSH, JJ.

John S Whaley and John W. Staton, both of Snow Hill (Johnson & Johnson, of Snow Hill, on the brief), for appellant.

F Leonard Wailes and James E. Ellegood, both of Salisbury (William G. Kerbin, of Snow Hill, and Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellee.

URNER J.

Certain United States loan certificates and Liberty Bonds, of the par value of $6,450, transferable by delivery, were replevied in this case from the appellants upon the ground 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 Bishopville 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, and 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 bank and handed them to the appellant with the statement that he should put them where he (the appellant) would know where to find them, and 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 coupons, 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. Layton'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 have free access to the vault after his resignation as cashier, and the right to cut the coupons and collect the interest was exercised by him alone until the time of his death. The facts we have stated were proved by the appellant's own declarations and testimony.

Instructions 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 in 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 jury, 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 was to be 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 was to continue. His dominion over them was exercised as 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 he had the continuing opportunity to dispose of the securities...