tablished and maintained thereon, together, ings, and appliances which may be used in with all the machinery, buildings, and appli- connection therewith, and for the furnishing ances which may be used in connection there- of places of residence for the instructors and with, the right of attendance not to be limit- students in such schools, and as a campus or ed to pupils residing in Indianapolis, but yard, to be used in connection therewith, with to be open to pupils resident elsewhere under a provision in said deed that the said grantee proper rules and regulations to be made by shall have no power in any manner to create the trustees from time to time to effectuate a lien or to incumber or create any debt, the purposes of this trust. charge, or lien against said real estate, and with the further provision that, in the event the said grantee should, for a period of five (2) That the Winona Agricultural and Technical Institute and the Winona Technical Institute at Indianapolis are each insol-years from this date, fail to put in operation vent and incapable of executing such trust or of maintaining a technical or trade school thereon, and are not entitled to have said real estate conveyed to them, or either of them, as trustees, or otherwise. (3) That neither the Winona Agricultural and Technical Institute, nor the Winona Technical Institute at Indianapolis, has any right, title, or interest in or to said real estate, or any claim or lien thereon. (4) That none of the creditors of the Winona Technical Institute at Indianapolis, to whom large sums the court found to be due, has any right, or title to, or any interest or claim or lien upon, the real estate involved or any part thereof. (5) That the trust under which appellees, trustees, held the real estate in question has not failed, so as to create a resulting trust in favor of the donors, and that none of them have any interest in the real estate involved, or right to have it partitioned and sold or conveyed in any portion to them. on said real estate, such a school for such instruction in the mechanical trades, or arts, and sciences, or in case it should at any time thereafter, for a period of 12 consecutive months, fail to maintain or cause to be maintained thereon such a school, then its rights in such real estate and its services as trustee thereof shall cease and terminate upon the decree of any court having jurisdiction of the proper parties and the subject-matter of the trust. Said conveyance to said board of school commissioners to be made subject to the liens and charges herein declared against said real estate. [1] The assignments that the court erred in overruling the motion of the appellants for a venire de novo are not urged with much confidence. On the part of the appellant donors it is claimed that the finding is defective, in that it contains evidentiary facts and conclusions, and not ultimate facts, and that, eliminating this improper matter, it is too uncertain and ambiguous to justify the rendition of a judgment thereon. The appellant creditors seem to suggest, rather than urge, that their motion should have been granted for a failure of the court to find material facts favorable to them. The motion for a (7) That the trustees are entitled to an venire de novo is an ancient common-law order of this court, ascertaining and deter. remedy, which was, technically speaking, apmining the character and scope of said trust, plicable only to jury trials. It is not a part and directing them as to the disposition of of our Code, but has, by common usage, such trust property and to be exempted from been adopted as a part of our practice, and is any personal liability of any kind in connec-applied when either a verdict, or finding on tion with the property, or said trust, or with its face is so defective in form, ambiguous the administration of said trust. (6) That the receiver of the Winona Technical Institute has only such right to, interest in, or claim on, the property as stated, and about which no question is raised in this appeal. (8) That the board of school commissioners of the city of Indianapolis is a proper trustee to execute said trust, and is willing and able to do so. and uncertain, that no judgment could be rendered thereon. Delaney v. Gubbins (1914) 181 Ind. 188, 197, 104 N. E. 13; Bartley v. Phillips (1888) 114 Ind. 189, 16 N. E. 508; Geiger v. Town of Churubusco (1912) 50 Ind. App. 685, 98 N. E. 77; Ginther v. Rochester, etc., Co. (1910) 46 Ind. App. 378, 92 N. E 698, and cases there cited; 38 Cyc. 1990. (9) That the plaintiffs shall convey the said real estate to the board of school commissioners of the city of Indianapolis, as trustees, to be by it held in trust to be forever [2] It seems quite apparent that the findkept intact and dedicated to educational uses ing contains no evidentiary facts tending to in the city of Indianapolis, and to be for- prove essential ultimate facts, except such ever used as a site for the purpose of main- ultimate facts as are also found. And so, taining, or causing to be maintained, thereon ignoring such evidentiary facts and conclusuch school, or schools, for the education, sions as are found in the findings, as we training, and instruction of both males and may do, the findings contain facts properly females in the various manual and mechan- found sufficient to decide the issues one way ical trades, arts, and sciences, and such or the other between the parties. Hawkins, other educational institutions, as such trus- Receiver, v. Fourth National Bank (1898) tees may establish, or cause to be established 150 Ind. 117, 127, 49 N. E. 957; Major v. and maintained, thereon to effectuate the Miller (1905) 165 Ind. 275, 75 N. E. 159; trust, together with all the machinery, build-Smith v. Barber (1899) 153 Ind. 322, 53 N. E. 1014; Ginther v. Rochester, etc., Co., supra, to sustain the finding; that they "constitute and cases cited. [3] As to the suggestion in behalf of the creditors that the venire de novo should have been awarded for the failure of the court to find material facts favorable to them, it may be said that the settled rule makes this cause for a new trial, and not for a venire de novo. Deeter v. Sellers (1885) 102 Ind. 458, 1 N. E. 854; Smith v. Barber, supra; Maxwell v. Wright (1903) 160 Ind. 515, 520, 67 N. E. 267 and cases cited; Bower v. Bower (1896) 146 Ind. 393, 45 N. E. 595. In behalf of appellant donors it was assigned as cause for a new trial that the evidence was insufficient in fact and in law to sustain the trial court's finding. In urging the error assigned on the action of the court in overruling their motions for a new trial, the only specific claim made in behalf of donors that this cause is well laid is directed to findings 8, 10, and 22 hereinbefore set out. [4] It is contended that there was no evidence of the readiness and willingness of the school city of Indianapolis to accept the real estate in trust as stated in finding No. 22. The answer of the board of school commissioners and a resolution passed by it in relation to the matter expressed its willing ness to accept the property subject to the conditions of its conducting thereon trade schools to the extent that it was "authorized by law to accept such donation and perform such conditions." This was sufficient foundation for the finding. The contention as to finding 8 relative to the meeting of January 9, 1903, and the resolution passed at that meeting is not that it was not sustained by the evidence, but that it was not binding on appellant donors, for the reason that they were not present and had no knowledge of the meeting or resolution. Whether the action at that meeting, being taken with the consent of the citizens' committee as agent and representative of the donors, was binding on appellant donors, or whether it was ratified by them by their paying of the subscriptions upon receipt of the "blue letter" sent out pursuant to such action, as claimed by appellees, we need not determine at this point. It is sufficient to say that the facts found as to that meeting were established by undisputed evidence, and they were within the issues, and so were properly found. The legal force and effect of the facts so found is a matter of law to be determined in applying the law to the facts. the only competent and sufficient evidence of the object and intent of the donors"; that these papers express no purpose to create a public charity; that "the object and intent of the donors is material and vital, and is to be gathered from what they have expressed in the subscription blanks, and not from extrinsic parol evidence, such as "promotion representations, newspaper articles and proceedings and resolutions of town meetings." The circumstances of the movement for the preservation of the arsenal tract from private ownership and the saving of it for public purposes were unusual and complicated. The theory of the complaint, in so far as the appellee trustees took sides in the controversy presented to a court of equity for solution, was that the primary trust was in the fund collected; that this trust to which the donations of money were given was a public charitable trust, which was fully created when the trustees had discharged the primary executory duty which had been imposed on them of consummating the purchase from the government; that thereafter they held the title to the land impressed with the same charitable use as that to which the donations were given; that the failure of the trustee who, the donors contemplated, was to carry out the educational object of the trust to qualify as such administrator did not work a failure of the trust itself. The answer of Mr. Harris to the complaint and his cross-complaint against appellants and others, which was adopted by other large donors, only more positively and particularly asserted substautially the same theory. On the other hand, appellant donors assert in their pleadings that no public trust was within the purpose of the subscribers to the fund, but only a proposed gift of the money subscribed to a particular corporation for a particular purpose, on precedent conditions which had not been performed, and that thereby the object had failed; that therefore the fund in the hands of the trustees was the money of the donors, and that a trust had resulted to them in the land in the hands of the trustees. and [5] The issues thus raised compelled an inquiry into the common purpose in the minds of the donors in making gifts to the fund, and the capacity in which appellee trustees took and held the fund and the title to the real estate purchased with it. It seems to have been assumed and conceded by all who tendered these issues that the The claim of counsel for appellant donors subscription blanks did not fully illuminate that finding 10 is not supported by the evi- the intent and purpose of the donors, or any dence seems to rest upon the fact that an of them, at the time they actually paid their express trust in land was involved which money. The cross-complaints of appellant could, under the provisions of the statute, donors did not, and manifestly could not, only be proved by writing signed by the rely solely on the terms of the subscription donors. Burns 1914, § 4012. And upon this blank. They based their claims on the "blue the contention is made that there is a lack letter," and on "representations, publications, of proof, for the reason that only the sub- statements, conditions,' agreements and unscription papers signed can be looked to, derstandings both oral and written." The cross-complaint of the only one of them who [8] If the terms made use of in a gift are signed the subscription blank of the second obscure, doubtful, or equivocal, either in form (for $100 only) showed that he there- themselves or in their application, it becomes after subscribed and paid $4,400 additional the duty of the court to ascertain by eviwithout signing any kind of a subscription dence, as well as it is able, what was the form and his letter accompanying this gift is intent of the donor, and in what sense the full of the purest charitable spirit. And it particular expression was used. 5 R. C. L. appears and is found by the court that many §§ 114, 115. contributed to the fund who subscribed to no paper. So it was assumed that resort must be had to parol testimony to uncover the common purpose of all who contributed to the fund. Much of such evidence was given. Much of it by appellant donors, and some of it by appellee trustees at the request of appellant donors. It is not now claimed by the latter that at the time it was given they objected to any of it, or asked that its consideration be limited in any way. Under such circumstances, whatever limitations on the right to resort to parol evidence to ascertain the intent and purpose of the donors of the fund might have insisted on at the time, it is now too late to press objection to the consideration of it in support of the court's finding. But, in any event, in view of the issues tendered and the theory upon which the trial proceeded, certain parol evidence was not only proper, but also inevitable. [6] It cannot be, and is not, denied that the primary trust involved was in the fund, the money which was to be, and was, given, and which was personal property; and that this trust was merely carried into the land. The statute of frauds does not extend to express trusts in personalty, and they may therefore be created, declared, or admitted verbally when the evidence is clear and unequivocal. 3 Pomeroy's Eq. Jurisp. (3d Ed.) § 1008; 1 Perry on Trusts (6th Ed.) § 86; 39 Cyc. 51, 82; 13 Encyc. of Ev. 120, 127. "Evidence of a prior or a contemporaneous parol agreement is frequently received, where it is consistent with the writing in question, and it ed as a complete embodiment of the undertaking. is apparent that the instrument was not intendEvidence of such a character is not in conflict with the parol evidence rule which, it is said, presupposes that the instrument is a complete parties. If it was their intention that only a and full expression of the undertaking of the part of the terms should be embraced in the writing, then the instrument is not one which is brought within the protection of the rule, and consequently evidence of the remainder of the agreement, consistent with the part which has been reduced to writing, is in no way a contradiction, varying or altering the instrument. of the parties that some of the terms should the court is satisfied that it was the intention remain in parol, then evidence to supplement the writing and show the entire agreement will be received, even though the evidence may be in reference to a different subject than that contained in the writing. * Similarly, in the case of an agreement which is expressed in two or more writings, evidence will be received to connect them, for the purpose of showing the comModern Law of Evidence, § 3553. pleted and full undertaking." 5 Chamberlayne, If In the case before us there is no claim that in fact the subscription papers fully embodied the understanding of the parties concerned, or the purposes and intent of the subscribers. Even appellant donors claimed in their pleadings that, to disclose these fully, resort must be had to promotion representations, resolutions, prospectuses, and the "blue letter," with other connecting parol evidence. On [7] And on the theory that the primary subject of inquiry was embodied in the sub- [9] But even were we required to measure scription papers, the rule against the ad- and determine the rights here involved by missibility of parol evidence to vary the the rules of law applicable to the creation terms of a writing could not be interposed to of trusts in land, we would not be confined exclude all parol evidence in such a case exclusively to the subscription paper. as this. For the rule is that a contract of the contrary, other writings and memoranda, subscription such as that here involved will including the "blue letter," would be combe construed with reference to the intent petent, together with evidence of the position, of the parties at the time, and the court will situation, circumstances and surroundings consider the subject-matter of the agree of the parties concerned. Ransdel v. Moore, ment, the inducement which influenced the 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753; subscription, and the circumstances under Nesbitt v. Stevens (1903) 161 Ind. 519, 69 which it was made. 37 Cyc. 495, note 73. N. E. 256; 39 Cyc. 53. Parol evidence as to the circumstances under which a subscription was made, and even of the intent and purpose of the donors, has been held to be admissible as part of the res gesta. 37 Cyc. 504, note 53; Burlington, etc., Church v. Sweny, 85 Iowa, 627, 52 N. W. 546; Hodges v. Nalty, 113 Wis. 567, 89 N. W. 535; Brokaw v. McElroy (1913)| the cestui que trust. 3 Pomeroy's Equity 162 Iowa, 288, 143 N. W. 1087, 50 L. R. A. (N. S.) 835; Downes v. Union Cong. Society, 63 N. H. 151; Com. Travelers' Association v. McNamara (1904) 95 App. Div. 1, 88 N. Y. Supp. 443. [10] Ordinarily the written evidence of an express trust in land which will satisfy the statute may come from the grantor, the one who intends that a trust shall be created for a certain beneficiary, or from the trustee, the grantee to whom the land is conveyed for the purpose of the trust, but not from Juris. (3d Ed.) § 1007. Whether the rule just stated has application in any case other than where a cestui que trust is seeking to enforce a trust against property in the hands of a trustee is of no particular importance * * here, for, in any event, the "blue letter" was, site for the school. He came to Indianapolis in connection with the particular subject- and announced that: matter of the subscription papers. It was sent to these donors, and upon its terms they paid their money. They adopted it as their own, and whatever force and effect it had bore on them and their rights and their purposes in parting with their money. [11, 12] No particular formality is required or is necessary in the creation of a trust. Any agreement or contract in writing, made by the person having the power of disposal over property, whereby such person agrees or directs that a certain fund or particular parcel of property shall be held or dealt with for the benefit of others, in a court of equity raises a trust in favor of such others against the person making such agreement. And if there is any competent written evidence that the person holding the legal title is only a trustee, that will open the door for the admission of parol evidence to explain the position of the parties. 1 Perry on Trusts (6th Ed.) § 82. "This institution is designed to help boys to a practical business life in all lines. but provision will be made for the poor boys The school will be open to rich and poor alike unable to pay their admission." At a public meeting April 23, 1902, and others about that time it appeared that the representatives of civic bodies and the press united in co-operation with the Winona group to raise a fund to purchase the tract as a site for the proposed technical or trade schools. Much use was made of the news papers in forwarding the project. Full re- this city should be preserved intact and used stated that: [13] In any view of the matter, the findings were supported by competent evidence. The tenth finding is the finding of the inferential or ultimate fact, directly involved in the issues whether an outright gift to a corporation to be formed by the Winona "We commend the plan proposed for raising group was contemplated, or a trust of a the necessary funds by subscription, the money public charitable nature. From the great thus secured to be held by five trustees, citizens mass of evidence the trial court, as it de- of Indianapolis, in trust for the object named, volved on it to do, drew the inference em- it being understood that the grounds, when purbodied in the tenth finding, and stated it chased, will be deeded to the Winona Agricultural Institute, which has by resolution, pledged against the claims of appellant donors. itself to manage and endow the institute. It That the subscribers contemplated the crea- is further understood that the detailed managetion of a trust, and not an untrammeled ment of the school shall be placed in the hands gift to a proposed corporation, and impressed of a local committee, who shall work in conjunction with the executive committee of the that purpose on the fund to be carried into Winona Agricultural and Technical Institute." the land, is the conclusion stated in the tenth At that meeting a committee, whose memfinding, and it is supported by the evidence. When measured by the rules of law applica-bership was made up of all interests, was ble, this inferential or ultimate fact is jus- elected to have charge of the solicitation and tified by the evidence, even without the sup-collection of the necessary funds. And trusport of the "blue letter." It is not practicable to refer to more than a few of the more influential and salient parts of the evidence bearing on the question involved. Following close upon the public movement to secure the arsenal grounds for park or educational purposes, with no more particular or definite object then existing than the preservation of the tract for future utilization for one or the other of such purposes, there came the intervention of the Winona group through the resolution of March 2, 1902, at Pittsburg, wherein they proposed to "endow and manage a technical institute in Indianapolis provided the citizens of Indianapolis and vicinity will secure for us the U. S. arsenal grounds." This school they then proposed should be managed and conducted largely through a local committee composed of the citizens of Indianapolis. At that time they empowered Dr. Dickey to act for them in securing donations of money to purchase the tract as a tees of the funds (appellee trustees) were also then selected. They were to hold the fund, purchase the property, and hold the deed until assured "that the school can have a sufficient inauguration and maintenance through a fixed and ample endowment." The school was not to rely on tuition of students for means with which to meet the salaries of teachers. Men "who are heart and soul in the movement will provide such expenses by generous contributions." Following this meeting the first subscription blank was prepared which pledged the signer to pay to the trustees above named as such "to be used in the purchase of said arsenal site for said Winona Institute technical department." During the progress of the canvass for funds in a statement in the papers by Dr. Dickey it was said: "The people of Indianapolis would not only have the most beautiful plot of ground within the city's borders preserved in its integrity for all times to come, but would gain an institution that would begin on a large scale." In a circular to solicit subscriptions sent, a gift, the "blue letter," pursuant to which out by the canvassing committee, it was said: "The beautiful arsenal grounds will be kept intact. Worthy youth will be provided with opportunity for practical training." each of them paid his money and on which each of them relied in his pleadings, clearly evinces an intention to create a trust, limited to educational uses in the city of Indianapolis. The evidence shows that new, additional subscriptions were made by reason of the specific limitation of the uses contained in the "blue letter." The evidence shows without contradiction that no stockholder of the proposed corporation was to profit from the school. It was to be established and maintained by men of large means, who were actuated solely by There is no room for doubt under the evimotives of good works towards the boys and dence and facts found that if the Winona girls and the public generally, in the form of group through the proposed corporation had education in trade and technical schools. fully qualified itself to administer the trust, While the tuition would not be free, yet pro- and had been invested by deed with the legal vision was to be made for those lacking title to the real estate in question, such cormoney to go through the schools to work poration would have held the title merely in their way through, and provision for night trust that the tract should be held intact for schools for those whose necessity compelled educational purposes in the city of Indianthem to work in the daytime. It was recog apolis. It was never intended that it should nized, and several times expressly stated by have title except with this limitation on it. Dr. Dickey, that the Winona people were to Perhaps the very narrowest claim that could hold the tract in trust for this proposed be made upon either the evidence, or the facts school. In addition to evidence of the char- found, would be that the gift was not to be acter here detailed there was much direct absolute upon the performance of conditions, testimony of donors of their intent and pur- for that would leave the corporation a free pose in giving their money all going to sup-hand in dealing with the property as it pleasport the tenth finding. There is no doubt from all this and other evidence that the donors, when they made their subscriptions, had it in mind that when the legal title to the land in question should be bestowed on the proposed corporation, it should be coupled with a limitation of the use for educational purposes. The "blue letter" only expresses directly what was circumstantially evident before. From these circumstances in connection with the incom pleteness and indefiniteness of the subscription paper, the court properly found the inferential fact involved in the tenth finding that a trust was intended and created. not have diverted the property to other or ed after acquiring the legal title. It could private uses, for such was never, obviously, in the hands of any donor or any one concerned in the movement. If the corporation tor of the trust property, it could not have so formed had then failed as an administradivided the land into small lots for a residence district and sold them, for that would have been a manifest violation of a fundatract preserved as a whole. mental purpose of every donor to have the have sold the tract entire and devoted the It could not proceeds to the support of the Winona Assemhave been theirs only that they might prebly, or any elsewhere, for the tract would serve it intact and devote it to educational uses in the city of Indianapolis. The tract was to be kept for its beauty, and for utility it was to bear on its bosom technical schools for the education of youth. It could not well have been in the mind of any one that an untrammeled gift to the proposed corporation was to be made. Under no reasonable view of the evidence of the facts found can a purpose be found to give the fund to acquire the tract for the proposed corporation that is not bound up with an enduring and underlying purpose that it should be preserved for educational purposes of a public character. Even working through the proposed corporation, that corporation was not to be the beneficiary in any sense, except that it Even if it be conceded that the original was to be given, with the legal title, the use purpose was to make an absolute gift to the of the site in a co-operative way for the purinstitute, it is nevertheless evident that at pose of benefiting an undesignated and unany time before the subscriptions were com-known number of boys and girls who were pleted by payment the donors could have re- to be educated in a school of a public, and, stricted the purpose by limiting the use. And in the legal sense as will hereafter appear, if it were necessary to avoid appellant do- of a charitable, character. nors' contentions that they purposed making "There is another important class of express trusts, which are not directly and expressly declared by the terms of the instrument, but which are inferred by a construction of all the terms and dispositions. They are all cases where the court infers that it was the intention of the party to create an express trust for some purpose, although he has not expressed that intention in unequivocal and direct terms, and the court is forced to gather it from his general expressions, or from the objects and purposes of his gift. When such a trust is found by the court to have been intended by the party, it is in every respect an express active trust. ** It is, in fact, an express trust, which the donor did not unmistakably declare, but which the court has helped out by interpretation and inference. * These trusts ordinarily arise from a construction of the language of wills; but there is no reason, on principle, why they may not also arise from conveyances and agreements inter vivos." 3 Pomeroy, Equity Jurisp. d Ed.) § 1010. * The thing that gave rise to the desire in |