of the personal estate. Under the law as it then stood the widow was only given the right to select such personal property as she desired to take as a part of her distributive share of the estate, and the court held, in Crow v. Hubbard, 62 Md. 560, that the testatrix of a deceased widow could not maintain a claim to personal property belonging to the estate of the husband, unless the same had been selected by the widow during her life.

George's county, died in August, 1912, leaving her be deducted from her distributive share a widow and infant children, who were also the children of his said widow. Letters of administration were granted to W. E. Pyles on the 3d of December, 1912, and on the same day appraisers were appointed. An inventory of personal property was returned December 17, 1912, and on the 7th of January, 1913, the letters granted to W. E. Pyles were revoked; letters of administration were granted to Thomas Bowie, the appellee, and an order was passed for the sale of the personal property. A list of sales of personal property was filed February 4, 1913, and on the 16th of August the orphans' court of Prince George's county approved and passed "In all cases where administration shall the appellee's "First and Final Account" as have been or shall hereafter be granted upon amended, in which he is charged with the the estate of a married man who has left a widow and an infant child or infant children. proceeds of sales of personal property and surviving him, the said child or children becash to the amount of $381.30, and allowed ing also the child or children of the said widcredit "for payments and disbursements" ow, such widow shall be entitled to an allowance amounting to $356.58, leaving a balance, ap-ment of funeral expenses, for her own use and of the personal estate remaining after the payplicable to the payment of the debts of the that of the said infant children, of the sum of deceased, of $24.72. One of the credits al- one hundred and fifty dollars, to be paid to her lowed is as follows: in money or in articles of household and kitchen elect."

"And for this sum due to the widow, Alice

Victoria Bowie, as widow of William H. Bowie, for allowance out of the personal estate after payment of funeral expenses as provided in section 304, art. 93, of the Code of General Laws of Maryland, being a widow with minor children, the said William H. Bowie having died in August, 1912, and the said Alice Victoria Bowie having died on or about December 20, 1912, leaving two adult and two minor children, $150.00."

From the order of the court passing the account, a creditor of the deceased, to the amount of $190.73, has appealed.

The record does not show that the appellant filed exceptions to the account in the orphans' court; but we assume that he did object to it, and it is stated in the brief filed in his behalf that the only amendment was the addition to the above item of the words "being a widow with minor children," etc., and that the objection was to said allowance to the widow.

The ground of the objection urged in the appellant's brief is that, the widow having died on December 20, 1912, without having made any claim or election under section 308 of the Code of 1912, no allowance to her can be made under that section.

It does not appear from the record that she did not make a demand for the money or property to the amount of $150, but as letters of administration were not granted until December, 1912, and the inventory of personal property was not returned until December 17th, three days prior to her death, the probabilities are that she did not.

Section 291 of article 93 of the Code of 1860 authorized a widow to "take to herself and apply to her own use and the use of her children, such household and kitchen furniture, or other personal property, as she may choose," to the value of $150, "according to the inventory and appraisement," provided

A very different provision was made for a widow by the act of 1884, c. 107 (section 308 of article 93, Code of 1912), which provides:

furniture at their appraised value, as she may

Section 309 of the same article provides that, where there are no infant children, the widow shall in like manner be allowed $75.

These sections declare that the widow shall be allowed the amounts therein mentioned, and that they shall be paid to her in money or property, as she may elect. Her right to the allowance becomes vested upon the death of her husband, and is not dependent upon a demand or claim by her, or her election as to how it shall be paid. The Code does not provide when the election to have the allowance paid in money or property shall be made. It should, however, be made within a reasonable time, and the widow may, by her failure to so make it, forfeit her right to demand payment in household and kitchen furniture. Crow v. Hubbard, supra. her right to the allowance is determined by the statute, and is not defeasible upon the failure to make an election as to the manner of payment. When a widow does not, within a reasonable time, elect to receive the amount in property of the kind specified, the allowance should be paid in money.

But

In the case of Beachley v. Estate of Bollinger, 119 Md. 151, 86 Atl. 135, where an allowance to the widow of $75, under section 309 of the Code, was objected to, the court

said:

"It was mandatory upon the orphans' court, under the section of the Code we have transcribed, to have made the allowance it did to the widow.'

The allowance provided for on section 308 is to the widow, and, as we have said, Mrs, Bowie's right to the $150 became vested upon the death of her husband. Upon her death before payment the right to receive it devolved upon her personal representatives. Crow v. Hubbard, supra; 18 Cyc, 395.

quire the defendant Wagner & Lehneis, Incorporated, to turn over to said copartners or the receiver of said copartnership all the property and assets in its possession belonging to said copartnership and to which they may be entitled; that the defendant John C. Wagner may be required to render a full, complete, and itemized account of the capital contributed by each of said partners; to furnish an itemized statement of everything purchased, sold, or on hand belonging to said copartnership; and to render a full and itemized account of all cash money received, and from whom, and paid out, and to whom, for and on account of said copartnership; and that your complainant may have such other and further relief as the exigencies of his cause may require."

ceedings, there has been saved of the assets, by the industry and care of the receivers, funds amounting to about $5,000, which would otherwise have been lost or squandered in consequence of the great antagonism between the said copartners, as is fully shown in the bill of complaint and answer thereto.

The circuit court for Baltimore county, on the 24th of September, 1912, upon this petition, affidavit, and certificate directed the receivers to pay the counsel fee in question out of the funds coming into their hands, in the proceedings, and the fee was thereupon allowed by the auditor's report and account of expenses, subsequently filed in the case. This expense account was ratified and con

On the 19th of June, 1912, the defendant John C. Wagner answered the bill, consenting to the appointment of receivers, and on the same day the court passed the follow-firmed by the court on February 10, 1913, exing order:

"Upon the petition, answer, and affidavit, it is ordered this 19th day of June, 1912, that Geo. Washington Williams and Benjamin L. Freeny, Esqs., be and they are hereby appointed receivers to take charge of and administer the affairs of the copartnership upon the filing of a bond in the sum of $10,000 in accordance with the provisions of the order nisi attached to the petition. Frank I. Duncan." The nisi order referred to was the usual order passed in such cases and directed the appointment of a receiver, to take charge of the property, business, and assets of the firm or copartnership, together with its books, plant, good will, and fixtures, and to be held subject to the further order of the court. And it was further ordered that Wagner & Lehneis, Incorporated, turn over to Adam Lehneis and John C. Wagner, copartners, or to the receiver therefor, all the property and assets in its possession belonging to the copartnership and to which it may be entitled. On the 24th of September, 1912, the following petition was filed by Mr. Packard, asking for the allowance of a fee for the legal services rendered by him in the case, and with this petition was filed a certificate of two members of the Baltimore county bar, stating that the sum of $150, in their opinion, would be a fair and reasonable fee for the services rendered and set forth in the petition.

cept as to the allowance of counsel fee, to which exceptions had been filed. On the 17th of May, 1913, the exceptions filed to the allowance of the fee were also overruled, and the auditor's expense account was finally ratified and confirmed, and from this order this appeal has been taken.

[1] The single objection urged by the appellant, in both his exceptions and brief, to the allowance of the fee, is that the fee is illegal and contrary to equity rule No. 34 of the circuit court for Baltimore county. This rule is set out in the record and, being authenticated by the certificate of the judge who sat in the case, as now in force, is properly before us. Baltimore City v. Thomas, 115 Md. 214, 80 Atl. 726.

[2] The rule is as follows: No application to the court for allowance of counsel fees will be entertained, except the application of attorneys for trustees, receivers, guardians, and administrators in cases where estates are being administered under the care and direction of this court, where the nature of the trust and the circumstances of the case require the employment of an attorney, or in suits for divorce, or in cases where parties to suits are infants, or from some other cause are incompetent to contract, or in creditors' suits where the case is conducted to a conclusion for the general benefit of the creditors, or in cases where one or more of the parties may be a nonresident or nonresidents.

It is urged by the appellant that as the plaintiff's bill is not filed by a creditor, and there is no allegation of insolvency of the copartnership, it cannot be treated as a creditor's suit, within the meaning of rule 34, just cited, but in fact was a bill institut

The petition is as follows: First. That heretofore your petitioner, at the request and employment of Adam Lehneis, one of the copartners mentioned in this proceeding, for and on behalf of the copartnership prepared the bill of complaint and entered the proceedings herein for the appointment of a receiver and for the winding up of the affairs of the copartnership. Second. That it was a laborious task, involving much detailed for the appointment of a receiver and the work and examination of the status of the dissolution of a partnership, for the benefit copartnership, and that it was a necessary of the plaintiff. The court below overruled professional employment and service per- this objection and held that as the object formed for the benefit of the copartnership of the bill was to bring into court a fund and to its creditors in that it has resulted for the benefit of creditors, to be adminisin preserving the assets of said concern tered by the court for this purpose, it should from waste to the great benefit of all con- be regarded as a creditor's bill or a bill in

within the rule. But assuming, without de- 12. GIFTS (§ 30*)-INTER VIVOS-ACTS CONSTIciding, that the bill in this case was not a TUTING. creditor's suit, as contended by the appel- the credit of himself and wife was changed, Where a deposit in a bank by a husband to lant, and the court below was wrong in hold- with the knowledge and consent of the wife, so ing that the fee should be allowed, under the as to become payable at their death, or the rule, out of the estate, in what way does it death of the survivor, to persons named, in affirmatively appear from the record now be-books making the change did not amount to valamounts specified, the entries in the deposit id gifts inter vivos for want of delivery of the funds or the deposit books.

fore us that the appellant has been injured by this ruling?

The bill does not allege that the copartnership is insolvent, or that the property and assets of the firm would be inadequate to pay the creditors of the estate. It is true that the appellant states in his exceptions that he is a creditor of the partnership and has duly filed his claim in the case, but it nowhere appears from the record that he is a creditor to such an extent that the funds in the hands of the receivers will not be sufficient to pay his claim or the claims of the other creditors of the estate. He states no amount nor does he file or refer to any voucher as to his own claim or the amount of the claims of the other creditors of the estate.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 52-57, 65; Dec. Dig. § 30.*]

3. GIFTS (§ 18*)-TRUSTS (§ 140*)-DISTINC-
TION BETWEEN GIFTS AND TRUSTS "GIFT
INTER VIVOS"-"DECLARATION OF TRUST."
To constitute a gift inter vivos, the donor
must part with the possession and control of
the subject of the gift, and delivery is essen-
tial, while in a declaration of trust the legal
title is withheld from the donee, and may be
retained by the donor, or transferred to a
third person, but only the equitable title vests
in the cestui que trust, and passes beyond the
control of the donor, unless the declaration of
trust contains a power of revocation.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 29-33; Dec. Dig. § 18;* Trusts, Cent. Dig. §§ 183-187; Dec. Dig. § 140.*

DEPOSITS IN

4. TRUSTS (§_34*) — CREATION
BANK FOR BENEFIT OF ANOTHER.
Where a deposit in a bank is made in the
name of the depositor in trust for another, the
possession, by the depositor, of the bank book
is a possession by a trustee, and does not in-
dicate that interest has not been given to the
cestui que trust.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 44; Dec. Dig. § 34.*]

For other definitions, see Words and PhrasIt clearly appears from the auditor's re-es, vol. 4, pp. 3091-3093; vol. 8, p. 7671; vol. port and account, filed in the case, that the 2, p. 1903.] receivers have collected the sum of $5,305.27, and after deducting the expense account, as stated, the receivers have in hand the sum of $3,904.73 for distribution. In other words, the appellant has failed to show that he has such an interest in the determination of the question here involved or in the construction of the rule of court presented as will entitle him to maintain an appeal in this court from the order allowing the fee. This view is supported by numerous decisions of this court, where similar appeals have been disposed of. Pratt v. Johnson, 6 Md. 399; McColgan v. McLaughlin, 58 Md. 499; Simms v. Lloyd, 58 Md. 477; Gordon v. Miller, 14 Md. 209; Glenn v. Reid, 74 Md. 238, 24 Atl. 155; Preston v. Poe, 116 Md. 2, 81 Atl. 178; McDonald v. Bldg. Ass'n, 60 Md. 590; Miller's Equity, 354, and cases there cited.

5. TRUSTS (§ 34*) — CREATION - INTENTION OF PARTIES.

To create a trust, it is not necessary to employ the words "in trust"; but the intention of the donor making a deposit in his name for another will determine whether he became a trustee of the deposit for the benefit of another.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 44; Dec. Dig. § 34.*] 6. TRUSTS (§ 34*) — CREATION BANK.

DEPOSITS IN

Where funds were deposited in a savings bank to the credit of a husband and wife, payable after their death to third persons, to enable the husband and wife to receive the interest thereon during their lives, and to secure the payment after their death to the third persons, a trust was created in favor of the husband and wife for life, and for the third persons after their death, and, where the power to revoke the trust was not preserved, the surviving spouse could not revoke it.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 44; Dec. Dig. § 34.*]

7. BANKS AND BANKING (§ 130*)-MISAPPLICATION OF TRUST FUNDS-LIABILITY.

Where a bank holds funds as trustee, and by the terms of the trust, as evidenced by entries in the books of the bank, the funds were payable after the death of the husband and wife to persons named, the bank, permitting a misapplication of the trust funds to the damage of the third persons, was liable to them.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 319-325, 327; Dec. Dig. § 130.*]

Appeal from Circuit Court, Frederick County, in Equity; Hammond Urner, Edward C. Peter, and Glenn H. Worthington, Judges. "To be officially reported."

Suit between Henry Baker, executor of Anna Barbara Baker, and others and George H. Baker and another. From a decree for the latter, the former appeal. Affirmed, and cause remanded for further proceedings. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, STOCKBRIDGE,

and CONSTABLE, JJ.

Albert S. Brown, of Frederick (Charles C. Waters, of Frederick, on the brief), for appellants. John Francis Smith and Edward J. Smith, both of Frederick, for appellees.

THOMAS, J. The controversy in this case involves the title to certain deposits in the Citizens' Savings Bank of Thurmont, Frederick county, Md., and the facts which give rise to the litigation may be briefly stated as follows:

On the 19th of March, 1912, George Baker and Anna Barbara Baker, his wife, of Frederick county, sold three parcels of land for $2,800. Two of these parcels belonged to Mr. Baker, and the remaining parcel had been previously conveyed to him and his said wife. $2,000 of the money received from the sale of said property was, on the 21st of March, 1902, deposited by Mr. Baker in his name in the Franklin Savings Bank of Frederick, and the remaining $800 was invested in property, containing about 10 acres of land, which was conveyed to Mrs. Baker March 22, 1902.

On the 29th of March, 1906, Mr. Baker drew the $2,000 out of the Franklin Savings Bank and deposited it, on the 31st of March, 1906, in the Citizens' Savings Bank of Thurmont at 31⁄2 per cent. interest. At the time he made the deposit in the latter bank, he stated to the cashier that he wanted it deposited so that, if he should die before his wife, the money would be hers, and that, if she should die first, it would belong to him, and the deposit was entered in the books of the bank, and the deposit book given him, to the credit of "Mr. and Mrs. George Baker." At the time this deposit was made, Mr. and Mrs. Baker had five children living, namely, Mary M. Martin, Caroline Grimes, Barbara Smith, George H. Baker, and Henry A. Baker, and a granddaughter, Ellen B. Wachter. About a year or two later, the precise time is not shown by the record, Mr. Baker redeposited the $2,000 in the Citizens' Savings Bank, or had the books of the bank and his bank book so changed as to make the entries in said books read as follows:

"Mary M. Martin, wife of David E. Martin, $400.

"Caroline Grimes, wife of Charles Grimes, $500.

Whether the money was actually drawn and redeposited, or the change was made by writing the names of the children and the respective amounts to be paid to them above the entry, "Mr. and Mrs. George Baker," and adding the words "payable at our death to above children," does not appear; but the fact that the certified copy of the deposit book offered in evidence shows the date of the deposit to be March 31, 1906, and does not show when the change was made, would indicate that the latter method was adopted. On the 28th of January, 1908, the property which had been purchased and conveyed to Mrs. Baker in 1902 was sold for $1,300, and Mrs. Baker received the proceeds of sale. The purchase money was paid in cash and a check and note payable to her, and on the 29th of January, 1908, she sent the check for $600 to the Citizens' Savings Bank by her son Henry A. Baker, who deposited it according to her instructions as follows: "Mary M. Martin, $200. "Barbara Smith, $100. "Caroline Grimes, $100. "Geo. H. Baker, $100. "Ellen B. Wachter, $100.

"Mr. and Mrs. Geo. Baker, payable at our death to the above."

Henry A. Baker received from the bank a bank book showing the deposit of $600 as above stated, and when he returned home he delivered the book to his father. Mrs. Baker also sent the note to the bank, with instructions to deposit the amount thereof when paid in the same account. The certified copy of the bank book shows that the $600 was deposited as stated on the 29th of January, 1908, and that there were further deposits in the same account of $500 on the 26th and $100 on the 30th of March of the same year.

The evidence shows that Henry A. Baker, prior to the deposit of $2,000, had received from his father $400, and that the division of the $2,000 and the $600, as shown by the entries in the bank books, was made by Mr. and Mrs. Baker, with the view of giving each of their children $600 and their granddaughter, Ellen B. Wachter, $200; that all of their children, except Mrs. Martin, who resided in Ohio, knew how those sums had been deposited and divided; that Mr. and Mrs. Baker stated to them, and to a number of other witnesses who have no interest in the case, that they had divided the amounts mentioned so that each child would receive $600; that they had worked hard and wanted their children to have what they had, and that they made the deposits and divided the money so that at their death the parties named would receive the respective amounts, without the expense of administration in the orphans' court; that they had retained the further sum of $600 to cover their funeral expenses and such other demands as they

"Barbara Smith, wife of Hebrew Smith, $500. | might have; and that that sum, with the in

"George H. Baker, $500.

"Henry A. Baker, $100.

"Mr. and Mrs. George Baker, payable at our

terest on the deposits, would be all that they would need during their life.