1 A. SCOTT W. FRATCHER, THE LAW OF TRUSTS § 26.1, at 293 (4th ed. 1987) (hereinafter SCOTT ON TRUSTS). In Moore v. Layton, 147 Md. 244, 127 A. 756 (1925), the testator owned some bonds that were placed in a vault accessible to him and his nephew. The testator also said that "if anything happened" to him, he wanted his nephew to have the bonds.
But the quotation the defendants cite is merely the D.C. Court of Appeals’ quotation from a Maryland case describing Maryland law. See Duggan , 554 A.2d at 1136-37 (quoting Moore v. Layton , 147 Md. 244, 127 A. 756, 757 (1925) ). Noting that the Maryland case was "not binding," the D.C. Court of Appeals found it "persuasive [t]here because its facts [were] very similar."
But it did not and could not come to pass as a result of a gift made contingent upon petitioner surviving Roy. Such a gift would be ineffective. Moore v. Layton (Md.), 127 Atl. 756; Gray v. Greer (Ky.), 70 S.W.(2d) 683; Barlow v. Halley, 121 N.Y.S. 708. Gifts reserving title in and enjoyment of the subject property to donor during his lifetime are testamentary in character and void. In re Humphrey's Estate, 181 N.Y.S. 169.
Albrecht v. Slater, 233 S.W. 8; Gottstein v. Hedges, 210 Iowa 272, 228 N.W. 93. (d) Nor can the judgment or decree appealed from be affirmed upon the theory that Otto M. Cartall, during his life, created a trust in the securities under determination here for the use and benefit of plaintiff-respondent because the record and the evidence fails to support such a theory. Goodman v. Crowley, 161 Mo. 657, 61 S.W. 850; Pennell v. Ennis, 126 Mo. App. 355, 103 S.W. 147; Martin v. Martin, 266 S.W. 750; Citizens Natl. Bank v. McKenna, 168 Mo. App. 254, 153 S.W. 521; In re Smith's Estate, 144 Pa. 428, 22 A. 916; Noble v. Learned, 153 Cal. 245, 94 P. 1047; Young v. Young, 80 N.Y. 422; In re Crawford, 113 N.Y. 560, 21 N.E. 692; Wadd v. Hazelton, 137 N.Y. 215, 33 N.E. 143; Mitchell v. Weaver, 242 Mass. 331, 136 N.E. 166; Robertson v. Parker, 287 Mass. 351, 199 N.E. 645; Mulloy v. Charlestown Five Cent Saving Bank, 285 Mass. 101, 188 N.E. 608; Moore v. Lawton, 147 Md. 244, 127 A. 756; Ariett v. Osage County Bank, 120 Kan. 286, 242 P. 1018; Elliot v. Gordon, 70 F.2d 9; Eschen v. Steers, 10 F.2d 739. Clarence T. Case, David W. Voyles and T. Jackson Case for respondent.
* * *" The rule above announced with regard to the character and degree of proof which must be shown in order to establish the trust is believed to be almost universal and has received the sanction of this court in Moore v. Layton, 147 Md. 244, 248, 127 A. 756; Kozlowska v. Napierkowski, 165 Md. 620, 628, 170 A. 193; and Geoghegan v. Smith, 133 Md. 535, 105 A. 864. We are unable to find upon the evidence in this record that a trust has been satisfactorily established, but conclude that a gift of the property to the niece has been shown.
A gift is not, of course, effected if the attempting donor retains dominion over the property, making, in effect, nothing more than a future or conditional gift in remainder. Moore v. Layton, 147 Md. 244, 127 A. 756; Brooks v. Mitchell, 163 Md. 1, 11, 161 A. 261. Delivery may be made to a third party for the donee, rendering the third party an agent or trustee for the donee during the continuance of the life interest. See, generally, Brantly's note on gifts inter vivos, Pennington v. Gittings, 2 G. J. 208, Brantly's Edition. And here there was a third party intermediary holding the mortgages, the interests in which Mrs. Kemp undertook to give.
There must be an intention to transfer a present interest to the cestui que trust, and this requirement is not gratified by evidence which merely shows that the party with title and possession of the res intended it to belong, after his death, to another. Moore v. Layton, 147 Md. 244, 247, 248, 127 A. 756, 757; Perry on Trusts (7th Ed.), sec. 86, p. 99. Similarly, as will appear from this excerpt from decision last cited: "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.
A person cannot retain the use and full enjoyment of his property during his lifetime and provide that at his death it shall go to some one other than his legal heirs, without making a will, executed under the forms and solemnities provided by the statutes on the subject of wills. Chevallier v. Wilson, 1 Tex. 161; McFerrin v. Templeman, 102 Tex. 530, 120 S.W. 167; Moore v. Layton, 147 Md. 244, 127 A. 756; Godard v. Conrad, 125 Mo. App. 165, 101 S.W. 1108; Shea v. Crofut, 203 A.D. 210, 196 N.Y.S. 850; Witthoft v. Commercial Dev. Inv. Co., 46 Idaho, 313, 268 P. 31; Partridge v. Kearns, 32 A.D. 483, 53 N.Y.S. 154; In re Bolin, 136 N.Y. 177, 32 N.E. 626. If it were possible for a person to retain the full enjoyment of his property during his lifetime and be able to dispose of it after his death by a transaction such as Eaton had with Lowe, it would not be necessary to execute a will in accordance with the statutes on the subject.