It seems to me that it would be fair and equitable to return to the donors or their heirs the full amount of their contributions and then to pay to the creditors their just claims created in the conduct of said school. Such balance as remains should then be distributed among the original contributors, or their heirs, in proportion to the amounts of such original subscriptions, except as to the $6,000 of subscriptions which were assigned. Appellant contributors admit that the facts stated in the nineteenth finding are correctly found, but insist that the sixth and seventh conclusions of law are not justified by the facts; that the receiver's certificates and the allowances made to such receiver and to his attorneys do not create a charge on the real estate in question, for the reason that such receiver was appointed in another and different cause and would have no right to ask for and obtain an order in this cause authorizing the issuance of receivers' certificates for the purpose of raising funds with which to carry on said school. The finding shows that there was in the hands of the receiver personal property of the Technical Institute of the value of $15,000; that at the time the order was made directing the issuance and sale of receiver's certificates the only notice given was to one of the appellees herein; that only six of the thousands of persons who contributed to the original purchase fund entered any appearance to the petition asking for such order; that there is no pleading or evidence in this case to justify the decree that the receiver be allowed $4,400 for his services as receiver and $3,000 as fees for his attorneys; that, if said receiver and his attorneys are entitled to the compensation named for services rendered, such allowances should be made in the cause in which such receiver was appointed and by the court wherein such receivership is pending, and therein that such allowances should be declared a first lien on the property in the hands of the receiver. In this contention appellants are correct.

The same appellants contend further that the allowances made to appellees called trustees and to their attorneys for their expenses and services in the maintenance of the trust "was made without any warrant or authority in the pleadings, evidence, or findings, and was made after the finding of facts and conclusions of law had been made and filed, and therefore said allowance and the judgment and decree in accordance therewith are wholly unauthorized and erroneous." I cannot subscribe to this view. The so-called trustees were the agents of the contributors. They received the deed to the real estate as such and held the title thereto from 1903 until the present time. They maintained the

It should be kept in mind all through this case that this is an action in equity in which the will of the chancellor should be guided solely by the considerations of conscience. If great numbers of philanthropic citizens who have subscribed their funds for a specific purpose are to have the same diverted by judicial decree and to have the benefits thereof gratuitously conferred on the school city of Indianapolis-a result which could not have been within contemplation of the wildest speculative imagination when the gifts were made and if the use of such valuable properties as the grounds herein mentioned and the improvements which have been made and maintained thereon with the money of the creditors, all of which is admitted to be worth more than a million dollars at this time, is to be freely given for another purpose under the doctrine of cy pres, newly invoked in Indiana as to contracts in the majority opinion herein, then justice is blind indeed, and the conscience of the chancellor is so sordidly dulled as to fail to conceive and respond to the prayer of equity. In my opinion the judgment of the Hendricks circuit court should be reversed, with instructions to restate its conclusions of law and to render such judgment thereon as should secure to the several appellants herein their respective rights.

ERWIN, J. (dissenting). I find myself unable to agree with the majority opinion in this cause. In the first place, the findings of the court fall far short of finding that any trust for a charitable use was ever created.

The statute of this state provides how a trust in real estate may be created, and is as follows:

"No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing signed by the party creating authorized in writing." Burns 1914, § 4012. the same, or by his attorney thereto lawfully

There is also a provision of the statute that:

"Nothing contained in any law of this state shall be construed to prevent any trust from arising or being extinguished by implication of law." Burns 1914, § 7466.

If, therefore a trust in the real estate in question has been created in favor of appellees, it is by reason of the section of the stat

The only parties to this transaction who could create an express trust in this land are the subscribers to the fund with which it was purchased, or their authorized attorney, and this must be in writing signed by the parties. The only writings to which the donors of the fund ever subscribed are the two subscription papers and the "blue letter," if that can be said to be a part of the writings of the donors. This court is in error in holding that it is now too late to object to parol testimony in support of the court's findings. In the opinion of the writer, where a statute makes provision as to how a trust shall be created, it is immaterial what evidence may have been introduced by any or all the parties to the litigation, unless there be some evidence of the creation of the trust in the manner provided by statute none was, in fact, created.

The writings on which the trust for a charitable use was created, if at all, are the following: "Winona Agricultural and Technical Institute, 1902.

"Indianapolis, Indiana,

"In consideration of the promise of the proposed organizers of the Winona Agricultural and Technical Institute to duly incorporate said institute under the laws of Indiana and to establish the technical department of said institute upon the United States arsenal site at Indianapolis, Indiana, if the amount hereinafter mentioned, my subscription included, shall be subscribed thereto and said arsenal site can be purchased, I promise upon demand to pay to Medford B. Wilson, John Perrin, Charles Latham, A. A. Barnes and Frank E. Gavin, trustees, or their successors or order, the sum of dollars, to be used in the purchase of said arsenal site for said Winona Institute's technical department and the establishment of said department, provided that this subscription is subject to the condition that, valid bona fide subscriptions of like purport with this subscription to the amount of $150,000.00 shall have been made, and provided further that the sum by me hereby subscribed shall not be demanded or payable until such aggregate amount shall have been subscribed.

"Indianapolis, Indiana, January 13, 1903. "Dear Sir: The undersigned trustees for the technical institute fund hereby inform you that valid and bona fide subscriptions to the full amount of $150,000.00 has been secured for the purpose of the arsenal site from the government for the purpose of establishment of the proposed technical institute thereon.

"That the object may be certainly fulfilled it has been determined by your trustees and agreed to by the representatives of the institute that the deed of conveyance to the institute limit the property and all its proceeds to educational uses in the city of Indianapolis, and the deed to the

the trustees to the institute corporation until it shall have in cash or bona fide collectible subscriptions a sum at least equal to the purchase price of the real estate. In order, therefore, that the trustees may be in possession to promptly submit their offer for the property, you immediate payment of your subscription at the are kindly requested to co-operate by making bank designated in the inclosed notice. "Yours truly,

Medford B. Wilson, "John Perrin, "A. A. Barnes, "Charles Latham, "Frank E. Gavin, "Trustees."

On these instruments of writing signed by those creating the trust, the donors, this trust must be created, or not at all. The authorities cited in the majority opinion authorizing the admission of parol evidence to ascertain the intent and purpose of making a subscription never held that you could show by parol that a trust was created in lands, when a positive statute prohibited it being so created.

This court, in an opinion by Mitchell, J., has said when a trust is created. The language of the court is as follows:

"A trust may be said to be executed when it has been perfectly and explicitly declared in a writing duly signed,' in which the terms and conditions upon which the legal title to the trust estate has been conveyed, or is held, and the final intention of the creator of the trust in respect thereto, appear with such certainty that nothing remains to be done, except that the trustee, without any further act or appointment from the settlor, carry into effect the intention of the donor as declared." Gaylord v. City of Lafayette, 115 Ind. 423-429, 17 N. E. 899, 902.

Quoting further from the same decision as to the question as to whether the deed under consideration was sufficient and effectual as the declaration of a perfectly created trust, Mitchell, J., says:

"Pertinent to the first point, it may be said if the transaction created a trust, since the subject-matter thereof was land, it was essential to its validity that it should have been created or declared in conformity with section 2969, R. S. 1881."

This is section 4012, Burns 1914.

In the case of Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753, cited in the majority opinion, the trust was created by a written agreement, and the court there holds that the same may be established by any "writing containing the necessary facts," but does not hold that it may be established by parol. All that it does hold is that the "consideration" of an express trust need not be set forth in writing, but may be proven by parol testimony.

Considering these two subscriptions, the blue letter, and the deed from the government which contain all the writings signed by any of the parties to the controversy, yet in none of these is there even a hint at the creation of a trust for a charitable use.

It is immaterial what may have been said or done in relation to the subscription to the fund, or what their intentions were in paying the money. The question here is: Was

To create an express trust various combinations of elements have been held to be essential; the most common being sufficient words to create it, a definite subject, and a certain and ascertained object. Considered from the standpoint of parties, an express trust implies a co-operation of three persons: A settlor or a person who creates or establishes the trust; a trustee or person who holds the legal title to the trust property for the benefit of another; and a cestui que trust or person for whose benefit the trust is created. 39 Cyc. 34.

As said in the majority opinion:

"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," citing 1 Perry on Trusts (6th Ed.) § 82.

This authority requires that there first be evidence in writing of the trust.

It has been repeatedly held by this and the Appellate Court that a trust in real estate cannot be created by parol testimony.

The title to the lands in controversy is either in the contributors to the fund or in appellees as trustees for the contributions upon a resulting or constructive trust. The subscribers were not bound to complete the

gift by transfer of the money, or the land purchased therewith, and the trustees had no power to do so after the failure of the Winona people to incorporate, establish, and endow the institute and had abandoned the object for which the subscriptions were made, even if that object were held to be charitable. Commercial Travelers' Home Ass'n v. McNamara, 95 App. Div. 1, 88 N. Y. Supp. 443; Larrimer et al. v. Murphy et al. (1904) 72 Ark. 552, 82 S. W. 168; Heiskell v. Trout, 31 W. Va. 810, 8 S. E. 557; Printing House for the Blind v. Trustee, 104 U. S. 711, 26 L. Ed. 902; First Church of Christ Scientist v. Schreck, 70 Misc. Rep. 645, 127 N. Y. Supp. 174; Bowden et al. v. Brown et al., 200 Mass. 269, 86 N. E. 351, 128 Am. St.

Rep. 419.

If a trust was created, it would imply a settlor, the subscribers, a trustee, Gavin et al., and a cestui que trust, who? This ele ment was to be the Winona people, on condition that they complied with certain terms and conditions which they failed to fulfill; hence we have an absence of an essential

element to constitute a trust at all, either charitable or otherwise. That a trust in the lands in question was created is not to be measured by evidence, although admitted without objection, that does not create, according to the requirements of the statute governing the subject.

Suppose a suit to compel the execution of a deed was instituted against a wife who had contracted to convey, without her husband joining in the deed, and it was proven by parol that the husband had given his consent

had been introduced without objection. Could this be said to be binding on either when an express statute provides that a conveyance by the wife without the husband joining therein is void? This question has been expressly settled by this court, and held that an interest in lands can only be conveyed according to the terms of the statute. Knepper v. Eggiman (1911) 177 Ind. 56-63, 97 N. E. 161.

The failure to object to parol testimony does not and cannot waive the requirements of the statute.

That the subscribers contemplated the creation of a trust and not a gift, not being shown by the writings it could not be shown by parol, and hence what their intentions were at the time of signing the subscription papers, not expressed therein, could have no force or effect in creating the trust.

The majority opinion answers its own ar gument when it says:

"No particular formality is required, or is necessary, in the creation of a trust. Any agreement 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 other against the person making such agreement."

In my humble opinion the tenth finding is unsupported by any legitimate evidence showing the creation of an express trust in conformity with Burns 1914, § 4012, supra.

In all the exhibits introduced there are

none which provided for an absolute transfer of the property to the Winona people until they had complied with certain specified conditions. They failed to meet these conditions. Hence the subscribers or their agents, appellees, the so-called trustees, were justified in not placing the legal title in them. As no other cestui que trust was provided for, no other could claim an interest in the land.

In all trusts the trustees hold the legal title, and the cestui que trust holds the equitable title. On this principle must the

question of whether a trust was created be decided. If there be no cestui que trust to take the equitable title, no trust was or could be created.

The majority opinion says that:

*

*

"There is no doubt from all these statements of Dickey and other evidence that the donors 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."

It is immaterial what the donors had in mind, so long as it was not reduced to writing.

The majority opinion admits that the writings are insufficient to create a trust in favor of any person or persons. The statement:

"From these circumstances, in connection with the incompleteness and indefiniteness of the sub