1.1.5 Separation of Beneficial and Equitable Titles

Maryland holds that only when there is a total identity between beneficial and equitable titles does merger apply:

It is true that, if the settlor reserves the right to use the property, and does use it in accordance with the terms of the trust, as evidenced from the intention of the parties, there may be nothing remaining at the death of the settlor; but the question of whether or not a trust has been created cannot be made to depend upon whether there may or may not be property existing at the time the beneficiaries are entitled to the enjoyment thereof. In the case Milholland v. Whalen, supra., this Court held that there was a valid subsisting trust created from the time Miss O’Neill made the deposit in the bank in the form in which it was made, and that without regard to the fact that she retained possession of the passbook by which she might have withdrawn all the funds, which were subject of the trust, before her death. It will be seen in that case that the settlor retained at least as complete control and dominion over the subject of the trust as is contained in the instrument of writing in this case made by Johann Sieling and Anna Sieling; the effect in that case being that if there was any money remaining in the bank which was the subject of trust at the death of settlor, it should go, by virtue of the declaration of trust, to her sister. Sieling at 548, 549.

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