Dissenting Opinion.
Spencer, J.— In presenting the views of . the writer it will serve no good purpose to set out in *402this dissenting opinion the lengthy assignments of error made in this court, but the same can best be shown by setting out the special finding of facts and the conclusions of law thereon, together with a concise statement of each of the several- contentions made, as they appear from the pleadings and from the briefs filed herein.
The special finding of facts is as follows:
“First. In the year 1902 and for a long time prior thereto the United States Government owned the following described real estate in Marion County, in the State of Indiana, to-wit: The East Half of the Northwest Quarter of Section Six, in Township Fifteen North and Range Four West, and occupied and used the same as an Arsenal site and military post.
“In the year 1902 it became known, in the City of Indianapolis, that'a sale of said tract of land was contemplated by the Government authorities, with the view of purchasing another and larger site entirely outside of the city of Indianapolis on which to establish a larger military post. The City of Indianapolis had grown and extended so that at said time and at the present time, said tract, of land was, and is, within the corporate limits of said City, and said city is built up compactly on all sides of said tract and for many blocks distant therefrom in all directions.
“Second. There were, and are now, a number of substantial buildings on said tract of land, which were and are now suitable to be used for. educational purposes, and particularly in connection with a Technical School for the teaching of mechanical arts, and said tract of land was well adapted to be used as a public park or for educational purposes. And when it became known to the citizens of Indianapolis that a sale of said tract was contemplated, a movement was started by public spirited citizens, the press, civic bodies and mayor of said city to *403purchase said tract for some park or educational purpose, which would result in preserving it in substantially its then condition as an open place in the midst of a closely built portion of said city and which would add to the beauty and healthfulness thereof.
“While said movement was taking shape a group of men of large means, who were connected with or interested in the Winona Assembly and Summer School Association, a corporation conducting a chautauqua and summer school at Winona Lake, Indiana, determined to establish an agricultural and technical school, the agricultural department of which should be at Winona Lake and the technical department at Indianapolis, provided the citizens of Indianapolis would purchase said tract of land from the United States Government as a site on which to locate said technical department. Said group of gentlemen representing said Winona interests held a meeting in Pittsburgh, Pa., on the 2d day of March, 1902, and adopted the following resolution, to-wit:
“ ‘That we will endow and manage a technical institute in Indianapolis provided the citizens of Indianapolis and vicinity will secure for us the United States Arsenal grounds and buildings, free of cost of encumbrance, or provided they will secure grounds and buildings of equal suitability or value, and our executive committee is empowered to make all contracts in the matter.
“ ‘That the management of this technical institute should, in our judgment, be conducted largely through a local committee composed of the citizens of Indianapolis.’
“Said men adopted said resolution and acted in said matter as the Winona Agricultural and Technical Institute, but at that time no corporation of that name existed. They authorized and empowered Dr. S. C. Dickey to act for them in connection with the citizens of Indianapolis in securing donations of money by *404said citizens, sufficient to purchase said tract of land as a site for said technical department of said school.
“Said men so adopting said resolution were men of large fortunes and well able to endow said school in a manner to insure its success and perpetuity, and such fact was well known to many of the citizens of Indianapolis.
“Third. On or about the 23rd day of April, 1902, a meeting was held in the city of Indianapolis attended by representative citizens, members of various civic bodies, representatives of the press of the city at which the said Dr. S. C. Dickey appeared on behalf of said Winona people and presented said resolution and the plans of said people to establish said proposed technical school, and represented that men of great wealth were ready to and would establish and endow such a school if the citizens of Indianapolis would by donations purchase said tract of land as a site on which to establish such a school.
“It was then determined by those present at said meeting'to abandon all other efforts to purchase said tract of land for other purposes, and to unite in an effort to raise a fund with which to purchase said tract of land as a site on which such Technical School might be permanently located. Other and similar meetings were held near the same time at which other representatives of said Winona people were present and urged the purchase of said, tract for said Technical School, and made similar representations as to the ability and the purposes and intentions of said men to establish and permanently endow such a school if the citizens of Indianapolis would purchase such a site.
“At one of said meetings a committee was appointed under a resolution which is set out in full in finding No. 4, to have the charge and oversight of the effort to solicit and collect a fund with which to buy said tract of land. The defendant, Addison C. Harris, was chair*405man of said committee and said Dr. S. C. Dickey was. a member thereof. George W. Brown and Albert Sahm were selected as special canvassers to solicit subscriptions for said fund and they were so selected on the suggestion of said Dr. S. C. Dickey,, and he reported their selection to said Winona people who approved the same, without, however, reporting such approval to the said chairman of such committee.
“Fourth. Said canvassers at once entered upon an active canvass among the citizens of Indianapolis, soliciting funds to the amount of one hundred and fifty thousand dollars which it was then supposed would be sufficient for the purchase of said land. Said solicitors kept in close totieh with the said Dr. Dickey, and kept him informed as to the progress of the canvass, the nature of the literature which they were placing before the public, and of the efforts of the committee and all the parties interested in collecting said fund. The said Dr. Dickey and said solicitors furnished information of the nature, purposes, and progress of the canvass to the press of the city of Indianapolis, and especially to the Indianapolis News, a paper published daily in said city, of wide circulation throughout said city, and the State of Indiana, and which was very generally read by the people of said city and state. The said Indianapolis News tendered the use of its columns for the purpose of aiding in said enterprise and articles, some of them signed by the said Dr.. Dickey or said canvassers, many of them editorials, and many of them news items, and purported interviews with the said Dr. Dickey or said solicitors appeared almost daily in said paper during the summer, fall and winter of 1902, while said canvass was being made. The whole tenor and effect of said articles and publications was that if the people of Indianapolis would donate a sum sufficient to purchase said site that said men of wealth *406would establish and endow a National Technical School thereon, and that a sum was already in sight sufficient to erect necessary buildings and pay the expenses of the operation of said school for a period of ten years, and that an ample endowment was assured to continue its operation permanently as a national school, which would bring large numbers of students from all parts of the country. Said articles and statements were never publicly repudiated, denied or criticised. And were read by and known to said Dr. Dickey as the same were published.
“Among said publications appearing in said Indianapolis News were the following which were authorized by said Dr. Dickey as representative of said Winona people and without consultation with said committee or the chairman thereof, to-wit:
“ ‘This is to be a national school, national as to its officers, its teachers, and the territory from which it will draw its students.
“ ‘This Directory is a unit in regarding Christian character as the foundation for all real success in life, non-sectarian, but strictly evangelical, religious teaching will be impressed upon the heart and conscience of every pupil, and the Bible will be given its proper place as the most important text-book.
“ ‘There will be no charity students and no free tuition. The most precious possession any boy has or can have is his manhood, and we believe that no boy can retain his manhood unimpaired and obtain and accept something for nothing. We do not believe that the state or society or the church owes any man or boy either a living or an education. But every boy is entitled to a chance to obtain an education, and also that which is just as important, the chance to pay for it either in money or in labor.
“ ‘If a boy’s parents or friends want to pay in full for his education, he will be paid in cash for his physical labor, but he must work just as *407many hours as the boy who pays for his education by labor alone.
“ ‘The statement, -endowment and place of collection of subscriptions will be made by the trustees as soon as they can hold a meeting. The Technical Institute will be dedicated with a fixed annual income of not less than $50,000 aside from the money received from tuition.
“ ‘As ample security to'the subscribers, trustees will not only hold the collected funds, but also a deed to the property until they and the subscribers are thoroughly satisfied that the school can have a sufficient inauguration and maintenance through a fixed and ample endowment.’
“A prospectus was prepared for use in the canvass for donations to the fund to purchase said real estate, which prospectus was approved by the said Dr. S. C. Dickey and the chairman of said canvassing committee. Said prospectus was printed and used by the solicitors canvassing, and by them presented to each person solicited. It contained a copy of the ‘Pittsburgh resolution.’ A statement of the plans and purposes and in said statement was this sentence: ‘One thing we may assure — the men who compose the board of the Winona Agricultural and Technical Institute will be satisfied with nothing less than the best faculty that can be secured, and that we will not rely upon tuition of the students for means with which to meet the salaries of the teachers. Men who are heart and soul in this movement will provide such expenses by generous contributions. They have already taken up the work and signified their intentions, so we are not building a fabric of plans on a foundation lacking substantial qualities.’ The name S. C. Dickey was printed at the close of the statement containing the foregoing sentences.
“Said prospectus also contained a list of the names of the men constituting the officers and directors of the Winona Agricultural and Tech*408nieal Institute-. The following statement also appeared in said prospectus:
“ ‘The press of Indianapolis has unanimously endorsed and favored the purchase of the Arsenal Site and the establishment of a technical institute, and at the conference on July 8th of the joint committees representing the press, Commercial Club, Board of Trade, University of Indianapolis, Woodruff Place, Winona Assembly, and the citizens of Indianapolis, Hon. A. C. Harris, presiding, the following resolutions were adopted unanimously:
“ ‘ “ RESOLUTIONS.
“ ‘ “Believing that the United States Arsenal grounds of this city should be preserved intact and used for educational purposes, we, as members of a conference committee, representing the Board of Trade, Commercial Club, University of Indianapolis, The Winona Agricultural and Technical Institute, the press and citizens of Indianapolis, and Woodruff Place, endorse the project of the Winona Agricultural Institute to purchase the grounds for the purpose of establishing thereon a National Technical Institute. We commend the plan proposed for raising the necessary fund by subscription, the money thus secured to be held by five trustees, citizens of Indianapolis, in trust for the object named, it being understood that the grounds when purchased will be deeded to the Agricultural Institute, which has, by resolution, pledged itself to manage and- endow the institute. It is further understood that the detailed management of the school shall be placed in the hands of a local committee, who shall work in conjunction with -the executive committee of the Winona Agricultural and Technical Institute.
“ ‘ “We recommend the appointment of an executive committee of five members to have full power in the conduct of the canvass for funds and in the negotiations with the Government for the purchase of the Grounds.
*409“ ‘ “Resolved, That we commend to the attention of the people of Indianapolis the opportunity here offered to secure not only the national technical institute, but an Army Post, the site for which by Act of Congress may be purchased at the option of the Secretary of War with the funds realized from the sale of the Arsenal grounds.” ’
“The committee as called for in the resolutions was agreed upon as follows: Addison C. Harris, Hilton U. Brown, representing the University of Indianapolis, Frank E. Gavin, President Commercial Club; John J. Appel, President Indianapolis Board of Trade; Dr. Sol C. Dickey, representing Winona Agricultural and Technical Institute; Mayor Book-waiter, representing the city of Indianapolis.
“ ‘The following were named as trustees to hold the funds that may be subscribed: Med-ford B. Wilson, President Capital National Bank; Charles Latham, Cashier Fletcher National Bank; John Perrin, President American National Bank; A. A. Barnes, Director Columbia National Bank, and Judge Frank E. Gavin, President Commercial Club.’
“The committee named in said resolutions is the same committee that is referred to in finding No. 3.
“Fifth. Said solicitors with the knowledge and approval of . said canvassing committee prepared a blank form for those who made donations to sign, which form is as follows, to-wit:
“ ‘Winona Agricultural and Technical Institute.Indianapolis, Indiana,-, 1902.
“ ‘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 j Indiana, if the amount hereinafter mentioned, my subscription included, shall *410be 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, provide that and 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.
“The trustees whose names appear in said subscription blank were selected pursuant to the resolution set forth in finding No. 4 at one of the public meetings held at the inception of the movement to raise said funds and the fact of their selection as said trustees was at the time published in the Indianapolis News and a copy of said blank was published daily in said paper for a long period of time with a request to its readers to make their subscriptions on such blank and forward the same to the Indianapolis News or, to the soliciting committee.
“And a number of subscriptions were made in that way without any other solicitation than that appearing in the columns of the News. Other subscriptions were taken on a blank in the following form, to-wit:
“ ‘Technical Institute Fund.
Indianapolis, Ind., -, 1903. -
“ T promise to pay upon demand to Med-ford B. Wilson, John Perrin, Charles Latham, A. A. Barnes, and Frank E. Gavin, Trustees, or their successors or order the sum of-dollars for the purpose of the purchase of the Arsenal Site for the Technical Institute (the *411amount paid hereon to said trustees to be returned to the undersigned in case the said Technical Institute shall not be located on said Arsenal Site.’
“About four thousand different persons whose names were at the time known to the solicitors made contribution to the fund in sums ranging from five cents to fifteen thousand dollars. Many of those who made the smaller donations and whose names were then known are now unknown and the Court is unable to ascertain their names. Of the sum thus donated by parties whose names were known about three-fourths thereof was donated by parties who signed one or the other of the foregoing forms of subscription blanks, only a comparative small number of them signing the second form it being used near the close of the canvass. About one-fourth of said sum was paid in by donors who did not sign any form of subscription blank. In addition to those whose names were known a great number of individuals donated small sums by contributing to collections taken in large manufacturing establishments and business houses employing large numbers of men and women, in which cases the total collection for each house or manufacturing establishment was turned in to the soliciting committee in the name of some one of the contributors and the names of the others so contributing were never known to the soliciting committee or any one connected with the collection of said fund or the promotion of said enterprise.
“About three thousand dollars was subscribed and paid in in this manner from fifteen or twenty different institutions and establishments.
“Of said four thousand persons contributing to said fund of $154,000 the names of about twenty-six hundred of them are in evidence in this case and the amount contributed by said last number, including fifteen thousand dollars paid in by the Winona Assembly and Summer School Association amounted to about $150,000.
*412“The defendant- and cross-complainant, Flecther S. Hines subscribed and paid the sum of Five Thousand Dollars to said fund; the defendant, Edward S, Fletcher, subscribed and paid to said fund the sum of Twenty-five Hundred Dollars; and the defendant, Addison H. Nor dyke subscribed and paid to such fund the sum of One Thousand Dollars. Each of said contributors made his subscription on a blank of the form first above set out.
“The defendant Edward C. Fletcher clipped said form of subscription from the Indianapolis News and signed and mailed the same and had no other information concerning the effort and canvass to raise funds for said purpose than that obtained from the columns of said Indianapolis News.
“Said Hines, Fletcher and Nordyke each paid his subscription without any notice or knowledge of the resolution adopted Jan. 8* 1903, as set out in the eighth finding, and without any notice that any such meeting was held as is described in said finding No. 8.
“The defendant and cross-complainant, William E. Hayward subscribed $500.00 to said fund on the 22nd day of September, 1902, on a blank of the form first above set out, and paid the same on the 14th day of January, 1903; on March 4, 1903, he subscribed an additional $100.00 to said fund on the second form of blank above set out, and he paid the same onMareh 13, 1903, on or about March 12, 1903, he subscribed by letter to said fund the sum $3,400.00 which letter addressed to the trustees of said fund is as follows, to-wit:
“ ‘Dear Sirs — As the time draws near for the purchase or failure to purchase the Arsenal Site on the 16th inst., I feel it my duty to add to my subscription already amounting to six hundred ($600.00) dollars. I now do what the public has got to do, or a few benevolently disposed individuals, subscribe a sum, that in this day of cheap prices including the cheap *413rent of money will cause me to go down into my resources to an extent that I feel the sacrifice. I feel that I would do almost anything to to assist the city to acquire the Technical Institute with all its advantages to the rising generations without considering the commercial advantages referred to in some of the appeals, as in my youth I had only the advantage of an education represented by the Three R’s I now want to be instrumental in giving rising generations an opportunity for usefulness in the higher walks of life. I now want to clear my conscience and wash my hands of any responsibility of the failure of securing to our city so important and lasting a benefit to this community_ by subscribing the sum of $3,400.00, filling out my total subscription to $4,000 and I hereby bind myself for that amount. If this from a stranger in your midst, as it were, will not bring the Technical Institute, with all of its elevating effects on students and citizens of your city alike, I shall have the satisfaction of feeling that I did my best to secure the coveted institution.
“ ‘Yours truly,
William E. Hayward.’
“Said Hayward paid said subscription of $3,400.00 on March 14, 1903, together with an additional one of $1,000.00 contributed by him that day by giving his check dated March 14, 1903, for $4,400.00 a copy of which cheek is as follows:
“ ‘No. 36175. Real Estate Office of W. E. Hayward. Established 1867.
Indianapolis, Indiana, Mar. 14, 1903.
‘Pay to the order of G. W. Brown for technical fund Pour Thousand Pour Hundred Dollars, in current funds. $4,400.00 to Capital National Bank, Indianapolis, Indiana.
W. E. Hayward.’
“Endorsed: ‘G. W. Brown for technical fd.’
“That all said several payments were made by said Hayward without any notice or knowledge *414of the resolution adopted January 8-, 1903, by said trustees and certain subscribers to said fund, as described in finding No. 8 herein.
“Sixth. On the 6th day of August, 1902, Articles of Incorporation under the voluntary association law of the State of Indiana, attempting to incorporate ‘The Winona Agricultural'and Technical Institute’ were filed in the office of the Secretary.of State of the State of Indiana. Said Articles of Incorporation provided and stipulated that, ‘The principal place of business of said association or corporation where its head office will be located is in the city of Indianapolis, Indiana’, and ‘the amount of the capital stock of this association or corporation shall be and is One Hundred Thousand Dollars, and same shall be divided into shares of One Hundred Dollars each in amount.’
“And it is further provided in Articles 2, 3, 6 and 8 of said Articles of Incorporation and Association, and articles 2, 3, 6 and 8 of said Articles of Association, respectively, are as follows, to-wit:
“ ‘II. Said association and corporation is organized for pecuniary profit, in the sense only that it will charge and receive money for tuition, board and like school fees and bills, but in the sense that the members of shareholders of said association and corporation shall be entitled to receive dividends or like distributive shares of surplus income, earnings issues and profits of said association it is not organized for pecuniary profit, inasmuch as said association is organized for philanthropic purposes and its stock shall be issued and accepted with the express agreement that all surplus of earnings income, issues and profits shall forever remain the property of said association and that no dividends or like distributive parts of any such surplus shall ever be given or paid to the holders of the stock of said association and that upon the expiration of the term of existence of said association as hereinafter provided, all of *415the property of whatsoever kind, which said association shall then possess shall be given absolutely and in fee simple to another corporate body having similar objects, purposes and policies to those of this association as shall be decided by' the Board of Trustees of this association then in office. The amount of the capital stock of this association or corporation shall be and is one hundred thousand dollars and the same shall be divided into shares of $100.00 each in amount.’
“ Til. The object of said association and corporation is to establish, maintain and conduct schools wherein, under Evangelical Christian influences, the arts and sciences shall be taught, in both practical and theoretic ways, and the proposed plan of doing business in carrying out said object is to procure financial endowment for said association.’
“ ‘VI. The term of existence of said association or corporation shall be fifty years.’
“ ‘VIII. The business and prudential concerns of said association and corporation shall be managed by a board of trustees consisting of twenty-one stockholders and by the executive officers of said association to be designated by said board of trustees annually. At the first election of trustees seven trustees shall be elected for one year, seven for two years, and seven for three years and thereafter all annual elections of trustees' by the stockholders shall be for three years.’
“A copy of said articles of association was filed in the office of the County Recorder in' Kosciusko County in the State of Indiana, but no copy of the same was filed in the office of the County Recorder of Marion County, in the State of Indiana, until about the time of the commencement of the trial of this cause. No certificates of capital stock were ever issued to any one in said corporation or pretended corporation, nor was any sum, whatever, ever paid to said corporation for capital stock. Nor was *416any subscription for stock in said corporation ever made by any one.
“Seventh. On the seventh day of April, 1904, articles of Association under the voluntary association law of the State of Indiana, attempting to incorporate ‘The Winona Technical Institute at Indianapolis’ were filed in the office of the Secretary of State of the State of Indiana, and a copy thereof was filed in the office of the County Recorder of Marion County, State of Indiana. Said Articles of Association provided and stipulated that ‘The principal place of business of said association or corporation, where its head office shall be located, is the city of Indianapolis, Indiana.’ And further ‘The amount of the capital stock of this association and corporation shall be and is $100,000.00 and the same shall be divided into shares of $100.00 each in amount.’
“And it is further provided in articles 2, 3, 6, 8 and 10 of said articles of incorporation and association, and articles 2, 3, 6, 8 and 10 of said Articles of Association, respectively, are as follows:
“ ‘II. Said association and corporation is organized for pecuniary profit in the sense only that it will charge for tuition, board and like school fees and bills, but in the sense that the members are share-holders of the association and corporation shall be entitled to receive dividends or like distributing shares of surplus income, earnings and profits of said association, it is not organized for pecuniary profit inasmuch as said association is organized for philanthropic purposes and its stock shall be issued and accepted with the express agreement that all surplus earnings, income and profits shall forever remain the property of said association and corporation, • and that no dividends or distributive parts of any such surplus shall ever be given or paid to the holders of the stock of said association or corporation and that upon the expiration of the term of existence of said *417association as hereinafter provided, all property of whatsoever kind which said association shall then possess, shall be given absolutely and in fee simple to another corporate body having similar objects, purposes and qualities to those of this association as shall be decided by the trustees of this association then in office. The amount of the capital stock of this association and corporation shall be and is $100,000.00 and the same shall be divided into shares of $100.00 each in amount.’
“ Til. The object of said association and corporation is to establish, maintain and conduct at Indianapolis, Indiana, a general school or like school wherein, under Evangelical Christian influences, the arts and sciences shall be taught in both practical and theoretical ways; and that the proposed plan of doing business in carrying out said objects is to procure financial endowment, for said association and corporation.’
“ ‘VI. • The term of existence of said association or corporation shall be fifty years.’
“ ‘VIII. The business and prudential concerns of said association and corporation shall be named by a board of trustees, consisting of fifty stockholders. At the first election- of trustees, seventeen shall be elected for one year, seventeen for two years and sixteen for three years, and thereafter all annual elections of trustees by the stockholders shall, be for three years, provided, however, that the share-' holders may by a by-law require that each trustee in addition to the qualification that he will be a stockholder shall have such other qualification or qualifications as may be expressed in and by said by-law, and no by-law so fixing the qualification of the trustees of said association or corporation shall ever be repealed, amended or modified except by the vote of persons holding the stock of said association or corporation to the aggregate amount *418of at least ninety-five per cent of the stock of said association at such time, issued and outstanding.’
. “ ‘X. Inasmuch as the objects for. which said association and corporation are formed are philanthropic and it is not the intent that its affairs shall be managed and conducted with a view to the pecuniary profit of any persons or person, but that they shall be managed and conducted in such a way that in perpetuity the best instruction shall be provided for the largest number of students that the financial ability of said association or corporation will warrant, to' secure said.objects it .is hereby provided that all the stock issued shall be issued and accepted with the understanding and agreement that no share of any such stock shall ever be voted at the stockholders’ meeting in favor of authorizing any incumbrances to be placed upon the real estate of said association, or any structure thereon, and all trustees elected and accepting the office of trustee shall accept the same with the understanding and agreement that no power shall be treated as being held by or vested in the Board of trustees of said association in any way, to place incumbrance upon the real estate of said association.’
“No certificates of capital stock in said corporation or association was ever issued to any one and no sum of money was ever paid to said corporation by any one for or on account of capital stock. And no subscription for capital stock in said corporation was ever made by any one.
“The said Articles of Association, of said Winona Agricultural and Technical Institute were signed by eight men and the Articles of Association of said Winona Technical Institute at Indianapolis were signed by twenty-one men, H. H. Hanna, Tiros. Kane, W. J. Richards and Sol C. Dickey signed, and they are the only ones who did sign each of said Articles of Association.
“Eighth. About the first of the year 1903 it *419was thought, by those soliciting the funds that a sum practically sufficient to purchase the land had been subscribed and it began to be talked among some of the parties who had contributed or agreed to contribute the larger sums, and the trustees of the fund and others that some definite understanding should be reached before the money .was paid in, as to the exact nature of the trust to be created. Some of the donors who had promised to pay the larger sums were contending that there should be a more definite and substantial step taken by the parties who had proposed to establish and endow the school, toward the accomplishment of that purpose, before the contributors should be asked to pay their several pledges. And this talk resulted in a meeting held on the eighth day of January in the city of Indianapolis, which was attended by a majority of said trustees of the fund, Addison C. Harris, Chairman, and a majority of the members of the canvassing committee on behalf of the citizens of Indianapolis, Dr. Sol C. Dickey and his attorney representing the Winona people, and six or eight of the donors who had promised donations of sums ranging from one hundred dollars to ten thousand dollars and representing in the aggregate about forty or fifty thousand dollars of donations.
“At this meeting extended discussion was had and an agreement reached assented to by a majority, if not all, of those present and particularly by Dr. S. C. Dickey and the trustees of the fund, which was reduced in writing and is here set out in full as part of this finding, and is as follows, to-wit:
“ ‘Resolved, That it is the belief of the Board of Trustees that the deed of conveyance for the arsenal grounds to the Winona Agricultural and Technical Institute, should contain clauses limiting the property to educational uses, prohibiting its being mortgaged and providing that it might be sold should the Institute deem it wise only on condition that the proceeds *420should form a trust fund to be forever invested in real estate in Indianapolis to be used for educational purposes in said city; with a provision of reversion to the city of Indianapolis should said real estate or the proceeds thereof at any time cease to be used for educational purposes in said city of Indianapolis.
“ ‘Resolved, further, that the deed should not be delivered to said Institute until it shall have obtained in cash or bona-fide collectible subscriptions, an amount equal to the purchase price of the real estate to be used for Institute at Indianapolis.
“ ‘Resolved, further that upon said Institute’s having secured such sum for such purposes in cash or subscriptions as above it shall be deemed entitled to such conveyance and the same shall be accordingly made.’
“After the adoption of said resolution said McGowan and McCullough and others paid their subscriptions and said McCullough subsequently subscribed and paid an additional sum of $5,000.00.
“It was also agreed orally that said trustees should take title to said real estate in themselves and hold the same until said Winona Technical Institute at Indianapolis should comply with the provisions and conditions of said resolutions.
“Ninth. On the thirteenth day of January, 1903, by the procurement and with the consent of said Brown and Dickey the trustees of the fund prepared a circular letter and mailed a copy thereof to each person who had in any manner promised to make a donation whose name and address were known to them and this constituted practically all of those who had so promised to donate. A copy of said letter is here set out and made a part of this finding and is as follows, to-wit:
“ ‘Indianapolis, Ind., January 13, 1903.
“ ‘Dear Sir:
“ ‘The undersigned trustees for the Techni*421cal Institute fund hereby inform you that valid and bona fide subscriptions to the full amount of $150,000.00 have been secured for the purchase 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 Arsenal Site property shall not be delivered by 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 position to promptly submit their offer for the property, you are kindly requested to co-operate by making immediate payment of your subscription at the bank designated in the enclosed notice.
“ ‘Yours truly,
Medford B. Wilson,
John Perrin,
A. A. Barnes,
Charles Latham,
Frank E. Gavin,
Trustees.’
“The subscribers and donors of said fund were divided into four groups and a list of names and amounts subscribed by each person was made up on four separate books, and one of each of such books placed in a bank in the city of Indianapolis for the purpose of collecting said fund. And, a copy of the circular letter was sent to each of the several donors- with a card informing each donor in what particular bank to pay his pledge, and in this way the collection of the pledges was made. At this time, however, about Fifteen Hundred Dollars from various sources had already been paid to *422the soliciting committee and by them to the Trustees of the Fund.
“Tenth. . The gentleman who were selected as members of the canvassing committee, the solicitors, and the trustees of the fund are men of high character and reputation and were generally known by the citizens of Indianapolis at the time the donations were being solicited as such, and as men of large experience in business affairs and who might be depended upon to successfully manage and safeguard the funds entrusted to them in the enterprise in hand.
“And at the time said donations were pledged, and at the time they were paid in, the donors understood and intended that said funds so donated and paid should and would be used by said trustees in purchasing said real estate to be held in trust by said trustees or some corporation or persons selected by them in perpetuity as a site for a National Technical School, and that the said real estate should be retained intact for such purpose. And said trustees when they accepted said trust and received said funds and said conveyance to said lands so understood the intentions of said donors. The principal object and purpose in the minds of the various donors in making their subscriptions, payments and donations to said fund, were the establishment and maintenance upon- said Arsenal grounds of trade schools, the preservation of said tract intact and its permanent dedication to educational uses in said city of Indianapolis.
“Eleventh. On the 16th day of March, 1903, the real estate in controversy was offered for sale by the United States Government at public auction. On said date, they, the trustees of the fund in bank the sum of $133,000.00, which had been paid on subscriptions and donations, and they had collectible pledges unpaid amounting to approximately $6,000.00, and an additional pledge of $22,000.00 made by one Walter Smith with the condition that it should *423be available only in the event that it was necessary to collect the same or some part thereof in order to have a sum sufficient to pay the purchase price of said real estate. Certain gentlemen connected with the Winona Assembly, and Summer School Association advanced of their own funds $6,000.00 and took over said unpaid pledges and subscriptions to reimburse themselves in so far as they would do so. And at the same time Winona Assémbly and Summer School Association advanced the sum of $15,000.00 making in all, in the hands of said trustees of the fund $154,000.00 which they used in the purchase of said real estate, and received a deed therefor, which is as follows, to-wit:
“ ‘Whereas by an Act of Congress, approved June 30, 1902, entitled “An act asking appropriation for the support of the Army for the fiscal year ending June 30th, nineteen hundred and three” it was provided that whenever in the opinion of the President the lands and improvements or any portion of them of the military posts or reservations at Indianapolis, Indiana, Columbus, Ohio, and Buffalo, New York, have become undesirable for military purposes he may in his discretion cause the same to be appraised and sold at public sale at not less than the appraised value, either as a whole or in subdivisions, under such regulations as to public notice and terms and conditions of sale as he may prescribe.
“ ‘And whereas the lands and improvements of the Military Reservation of Indianapolis Arsenal, at Indianapolis, Indiana, hereinafter described having in the opinion of the President, become undesirable for military purposes, he did cause the Same to be appraised and offered as a whole at public sale at not less than the appraised value, due notice of the terms and conditions of the sale having been given and did cause to be sold at said public sale at the office of the commanding' officer Indianapolis *424Arsenal, Indianapolis, Indiana, at 12 o’clock noon, March 16th, 1903, to Medford B. Wilson, Alfred A. Barnes, John Perrin, Charles Latham and Prank E. Gavin, as Trustees of the Winona Agricultural and Technical Institute Fund, at their bid of one hundred fifty-four thousand ($154,000.00) dollars being the appraised value of the premises no other bid having beenreceived the following described premises to-wit:
“ ‘All of the military reservation of Indianapolis Arsenal and improvements thereon in the city of Indianapolis, Marion county, Indiana, being the (east half of the northwest quarter of section six, township fifteen north, range four east, containing seventy-five acres and fourteen-hundredths of an acre more or less), as acquired by the United States of America by deed from Calvin Fletcher, Jr., and wife, dated December 15, 1862, and deed from Allen R. Benton and wife dated December 22, 1862, recorded respectively at pages (403) and (404) of Record No. 17 of the Recorder’s Office of Marion County, Indiana.
“ ‘Together with the former interest of the United States in the lands acquired for a roadway to and from said Indianapolis Arsenal by deed from Herman Sturm and wife dated November 2, 1863 and deed from Stoughton A. Fletcher and wife dated November 2, 1863, recorded respectively at pages 157 and 158 of Land Record MM of the Recorder’s Office of Marion County, said roadway having been acquired for the purpose of a public highway forever.
“ ‘Now, therefore, I Elihu Root, Secretary of War of the United States of America, in consideration of the said sum of one hundred fifty-four thousand dollars ($154,000.00) the receipt whereof is hereby acknowledged do by direction of the President hereby give, grant, sell and convey unto the said Medford B. Wilson, Alfred A. Barnes, John Perrin, Charles Latham and Frank E. Gavin, Trustees, as aforesaid and to *425their successors as such Trustees all the right, title and interest of the United States in and to the premises sold as aforesaid with all the rights, privileges and appurtenances thereunto belonging.
“ ‘To have and to hold unto the said Medford B. Wilson, Alfred A. Barnes, John Perrin, Charles Latham and Frank E. Gavin and to their successors as such trustees, forever.
“ ‘In Witness Whereof, I, Elihu Root, Secretary of War of the United States, have hereunto subscribed my name and caused to be affixed the seal of the War Department this twenty-seventh day of March, 1903.
“ ‘Elihu Root (L. S.)
“ ‘Secretary of War.
“ ‘District of Columbia, ss.
“ ‘Before me, Jno. B. Randolph, a Notary Public in and for the District of Columbia, duly commissioned and qualified, this twenty-seventh day of March, 1903, personally appearedElihuRoot, Secretary of WaroftheUnited States, known to me to be the person whose name is subscribed to the foregoing deed and' acknowledged that he executed the same as Secretary of War for the purposes and eonsidtion therein expressed.
“ ‘In Witness Whereof, I have hereunto set my hand and affixed my official seal this 27th day of March, 1903.
“ ‘Jno. B. Randolph, (L.S.)
“ ‘Notary Public’
“No obligation was undertaken by said trustees to repay to said Winona Assembly any part of said Fifteen Thousand Dollars, but the same was subsequently charged by said Assembly against the Winona Agricultural and Technical Institute and some adjustment of the claim was later made between said Assembly and said Institute.
“Twelfth. On the 15th day of April, 1903, the trustees named in said deed executed the following written agreement, to-wit:
*426“ ‘This Article of Agreement between Med-ford B. Wilson, John Perrin, A. A. Barnes, Chas. Latham, and Frank E. Gavin, Trustees, parties of the first part and the Winona Agricultural and Technical Institute, party of the second part, witnesseth, that
“ ‘Whereas, Said Trustees have purchased and paid for the land near Indianapolis, Marion County, Indiana, known as the Arsenal Grounds, being the east one-half of the Northwest quarter of section six (6) township fifteen, Range four and as such trustees now hold the title thereto, and
“ ‘Whereas, It is desired that said Technical Institute shall take possession of and care for said real estate.
“ ‘Now, Therefore, It is hereby agreed that said Technical Institute shall take possession of, care for and manage said property at its own expense and without any power to make or create any charge therefor, or open any account against said Trustees and shall hold the same until possession thereof may be demanded by said Trustees upon the order of the majority thereof. It is further expressly stipulated that upon such demand being at any time made, all right of said Technical Institutute under this contract, and all persons holding through or under them, shall at once cease and be at end, and said Institute shall deliver and surrender possession thereof to such trustees.
“ ‘It is further expressly understood and agreed that any possession of said property which said Institute may take and hold is under and by virtue of this contract, and not otherwise, and until it shall obtain a deed therefor from said trustees.
Medford B. Wilson,
John Perrin,
A. A. Barnes,
Charles Latham,
Frank E. Gavin,
Trustees.
*427“ ‘Winona Agricultural and Technical Institute,
By S. C. Dickey, President.
“ ‘April 15, 1903.’
“And thereupon said S. C. Dickey, acting for said Winona Agricultural and Technical Institute, entered into possession of said real estate under said contract and agreement.
“Said agreement has remained in full force and effect and said Trustees have never authorized any one to occupy or become possessed of said real estate or any part thereof under any other agreement or arrangement whatever.
“Thirteenth. In the fall of 1903 a'school consisting of two or three departments was opened upon said premises and managed by said Winona Agricultural and Technical Institute until the incorporation or attempted incorporation of the Winona Technical Institute at Indianapolis, in April of 1904’, at which time said Winona Technical Institute at Indianapolis, by S. C. Dickey, its president assumed the control and management of said school and conducted the same until a Receiver was appointed for said Institute and school on the 28th day of March, 1910.
“That in the fall of 1904, additional departments were added to said school; the faculty enlarged, and repairs and improvements made from time to time thereafter on the buildings and equipments of said school, and the same was kept open throughout the entire school year, each' year, and attended by a considerable body of students from all parts of the country; and during the time from the opening of said Institution until the appointment of said Receiver there were about 2,000 different students in attendance at said school and about 1,000 graduated from the several departments in courses covering from four weeks to two years.
“Fourteenth. The Winona Agricultural and Technical Institute has had'no connection with said Technical Institute or said tract of land since April, 1904, and has in no way exercised *428any control or supervision over the same. Said Winona Agricultural and Technical Institute has had no assets or property of any kind since said date and has at all times since said date been and now is wholly insolvent and unable to establish and maintain a technical institute on said site.
“Said Winona Agricultural and Technical Institute never had any endowment subscribed and paid to it.
“Fifteenth. Said Winona Technical Institutute at Indianapolis is now and for more than five years has been wholly insolvent and is now not financially able and will not be able to manage, conduct and support said Technical Institute nor any technical school on said site.
“Said Winona Technical Institute at Indianapolis never had any endowment subscribed or paid to it except as herein otherwise found.
“The tuition received by said Winona Technical Institute at Indianapolis has never equaled the amount paid to instructors in the conducting of the various departments of said school.
“Sixteenth. No request was made to the plaintiffs for a deed to said lands until in the Spring of 1908, when said Winona Technical Institute at Indianapolis through its President Dr. Sol. C. Dickey, informed said plaintiffs that the condition relating to the raising of said $154,000.00 had been complied with, and requested that steps be taken to execute a deed to said Institute.
“A deed was then prepared by plaintiffs conveying said real estate to said Institute, in trust to be held with all its proceeds for educational uses in the city of Indianapolis and plaintiffs were willing and ready at that time to execute said deed upon a proper showing that the conditions of the agreement of January 8th, 1903, had been complied with. At the request of the plaintiffs an audit of the books of the Winona Technical Institute was had and it was then *429learned by plaintiffs that said Winona Technical Institute was insolvent and plaintiffs being in doubt as to whether said conditions as to said $154,000.00 had been complied with, declined at that time to execute said deed and the matter of making such deed remained in abeyance until during the fall of 1909, at which time a form of deed was agreed upon between plaintiffs and said Winona Technical Institute at Indianapolis, whereby said real estate was to be conveyed to said Winona Technical Institute at Indianapolis as a trustee, in trust for educational purposes in the city of Indianapolis and providing that in the event said trustee or any successor, or assign should fail to use said lands as a site for educational purposes such trustee should convey said lands to the School City of Indianapolis as trustee to be held upon the same terms and conditions as were imposed by said deed upon said Institute as Trustee. Before said deed was finally executed some of the donors made objection to said plaintiffs executing said deed and while the matter of executing said deed was under consideration a Receiver was appointed to take charge of said Winona Technical Institute and said school and property.
“Seventeenth. Prior to the appointment of the Receiver for said Winona Technical Institute at Indianapolis and prior to the preparation of the deed last referred to in finding number sixteen, said Winona Technical Institute had, out of funds received by way of donations and by loans negotiated by said Institute, invested $62,000.00 in permanent improvements on said lands in the way of buildings, steam engines, boilers, pumps, air compressors, electric generators, large motor, stoker and firing grates, radiators, water pipes, electric wiring, underground mains, water tank, fire escape, well, and remodeling buildings.
“Said Winona Technical Institute also paid out on Barrett Law improvement assessments *430for street improvements the sum of $2,685.19, and for insurance on buildings and equipments the sum of $8,234.86. Of said sum so paid for insurance about $6,176.13 was paid for insurance on buildings and about $2,258.73 was paid for insurance on equipments.
“Eighteenth. Prior to August 31, 1909, said Winona Technical Institute' had received in cash donations from various parties for use in maintaining said Technical School the sum of $73,892.47.
“It had also received as donations in the nature of equipments, supplies suitable for use and which were used in equipping said technical school, certain machinery and supplies valued at the time by the parties in the aggregate at the sum of $48,869.48.
“It had also received cash as scholarship donations the sum of $33,722.12, which was paid in to be used in paying the tuition of boys who could not pay their own tuition. When a student who could not pay his own tuition was allowed his tuition out of said fund he was required to execute a note to the Institute to be paid out of his earnings after graduation. The donors of this fund reserved the right.to name students who should receive the benefit of such fund. These donations were mostly made by manufacturer’s associations and were for a period of years to be paid in annual payments, and on the above date there were a number of such pledges running which if they had been paid in full for the full time for which the donors agreed to pay would have amounted to $53,-557.24 additional, but only a small amount< thereof was collected or collectible by the' Receiver.
“Nineteenth. Prior to the commencement of this action two actions were begun in the Superior Court of Marion County for the appointment of a Receiver for the Winona Technical Institute and upon proper proceedings said causes were consolidated and on the 28th day *431of March, 1910, Charles A. Bookwalter was appointed Receiver of said concern and duly qualified as such Receiver and ever since said date has been and now is acting as such Receiver and has been and now is in full control of the affairs and property-of said Winona Technical Institute and as such Receiver succeeded to all rights of said Institute to the possession of the real estate involved herein.
“On the 4th day of April, 1910, said Receiver filed in said cause in which he was appointed a petition showing that said Winona Technical Institute at Indianapolis had personal property of the value of more than Forty-five Thousand Dollars and that a necessity existed for raising funds for immediate use in the management of the affairs of said Institute and thereupon said Marion Superior Court entered an order to said - Receiver to issue and sell, Receivers’ certificates to the amount of $20,000.00 and that said certificates when sold should be a first lien on said personal property of said Winona Technical Institute at Indianapolis.
“And said Receiver did issue and sell certificates to the amount of $11,000.00 bearing six per cent, interest which are still outstanding and unpaid.
“On the 13th day of December, 1910, and while this cause was yetpending in the Marion Superior Court said Charles A. Bookwalter, Receiver as aforesaid, filed in this cause his petition for an order to issue and sell Receivers’ certificates for the purpose of defraying the expenses of said Technical Institute and said Court found that Addison C. Harris appeared to said petition for himself, Baker, and Daniels, appeared for the Winona Assembly and Summer School Association, The Winona Agricultural and Technical Institute, and the Winona Technical Institute at Indianapolis, Lewis C. Walker appeared for ‘certain creditors’ and Ferdinand Winter appeared for Hugh McGowan, and that due and reasonable notice of said petition *432had been served upon William Bosson, attorney for the defendant Robert C. Light.
“And said Court entered an order in this cause on said petition to said Receiver, to issue receivers’ certificates to the amount of Ten Thousand Dollars, bearing interest at the rate of six per cent, per annum, and that the same should be a first and prior lien ahead of all other claims of any character whatsoever, upon all personal property of said defendant, the Winona Technical Institute at Indianapolis, except the lien of Receivers’ certificates issued April 4th, 1910, and also a first and prior lien upon the real estate involved in this suit. Said order has not been appealed from, modified or set aside, and acting under said order said Receiver issued Receivers’ certificates to the amount of $10,000. and sold the same and used the funds arising from the same in operating said Technical Institute and preserving said real and personal property. Said certificates are still outstanding and unpaid.
“Said Receiver has ever since his appointment been in possession of said school and premises and has conducted and is now conducting said school and premises and had conducted and is now conducting said school and has cared for and is now caring for said property and under the orders and directions of said court. And said Receiver was by permission of said Court made a party defendant to this action and has appeared in person and by attorney and filed pleadings and participated in the trial of this cause.
“Twentieth. The Court further finds that the defendant The Winona Technical Institute at Indianapolis is indebted to the cross-complainant, The Union National Bank of Indianapolis, upon the notes described in its cross-complaint in the sum of Forty-eight Thousand Two Hundred Twenty-three Dollars and Ten Cents ($48,223.10) principal and interest, and Four Thousand Eight Hundred *433Twenty-two Dollars and Thirty-one Cents ($4,822.31) attorney’s fees.
“That said defendant is indebted to the cross-complainant William J. Richards, upon claims described in his cross-complaint in the sum of Ten Thousand Seventy-six Dollars and Forty Cents ($10,076.40) principal and interest, and Seven Hundred Eleven Dollars and Sixty-five Cents ($711.65) attorney’s fees.
“That said defendant is indebted to the cross complainants, William J. Richards and Solomon C. Dickey, upon the claims described in their joint cross-complaint, in the sum of Thirty Seven Thousand Four Hundred Forty-three Dollars and Eleven Cents ($37,443.11) principal and interest, and One Thousand One Hundred Eighty-five Dollars and Sixty-nine cents ($1,185.69) attorney’s fees, and that said Richards and Dickey are liable as endorsers for said Winona Technical Institute at Indianapolis, in the further sum of Fifteen Thousand Eight Hundred Two Dollars and Forty-six Cents ($15,802.46).
“That said defendant is indebted to the cross-complainant, John H. Holliday, Trustee, upon the debts described in his cross-complaint' in the sum of Five Thousand Three Hundred Four Dollars and Twenty-two Cents ($5,304.22) principal and interest.
That said defendant is indebted to the cross-complainant, William H.. Hubbard, upon the claims described in his cross-complaint in the sum of Two Thousand Three Hundred Forty six Dollars and Eleven Cents ($2,346.11) principal and interest, and that said Hubbard is liable as endorser for said Winona Technical Institute at Indianapolis in the further sum of Two Thousand Three Hundred Thirteen Dollars and Thirty-four Cents ($2,313.34).
“That said defendant is indebted to the cross-complainant, Solomon C. Dickey, upon the claims described in his cross-complaint, in *434the sum of One Thousand Five Hundred Fifty Four Dollars and Thirty-three Cents ($1,554.33) principal and interest, and that said Dickey is liable as endorser for said Winona Technical Institute at Indianapolis in the further sum of Four Thousand Nine Hundred Eighty-two Dollars and Twenty-seven Cents ($4,982.27).
“That said defendant is indebted to the cross-complainant, William H. Hubbard and Charles W. Hubbard, Trustees, upon' the claims described in their cross-complaint, in the sum of Eight Thousand Nine Hundred Ten Dollars ($8,910.00) principal and interest, and Five Hundred Twenty-five Dollars ($525) attorney’s fees.
“That said defendant is indebted to the cross-complainant, Thomas C. Day, upon the claims desceibed in his cross-complaint, in the Sum of Five Thousand Six Hundred Seventy-five Dollars anb Forty Cents ($5,675.40) principal and interest, and Two Hundred Thirty-two Dollars and Eighty-three Cents ($232.83) attorney’s fees.
“That said defendant is indebted to said cross-complainant, The Indianapolis Home for Friendless Women, upon the claims described in its cross-complaint, in the sum of One Thousand Seven Hundred Twelve Dollars and Fifty Cents ($1,712.50) principal and interest, and One Hundred Seventy-one Dollars and Twenty-five Cents ($171.25) attorney’s fees.
“That said defendant is indebted to said cross-complainant, John H. Holliday, upon the claims described in his cross-complaint, in the sum of Two Thousand Nine Hundred Seventy-One Dollars and Twenty-three Cents ($2,971.-23) principal and interest, and Fifty-nine Dollars ($59.00) attorney’s fees, and that he is liable as endorser for said Winona Technical Institute at Indianapolis in the further sum of Three Thousand One Hundred Fifty Dollars and Twenty-five Cents ($3,150.25).
“That said defendant is indebted to said *435cróss-complainant, Shelby National Bank of Shelbyville, Indiana, upon the note described in its cross-complaint, in the sum of Two Thousand Three Hundred Twelve Dollars and Sixty-six Cents ($2,312.66) principal and interest, and Two Hundred Thirty-One Dollars and Twenty-six Cents ($231.26) attorney’s fees.
“That said defendant is indebted to the cross-complainant, Dauner Coal Company, upon the notes described in its cross-complaint, in the sum of Six Hundred Fifty-four Dollars and Ninety-three Cents ($654.93) principal and interest, and Sixty-Five Dollars and Forty-nine Cents ($65.49) attorney’s fees.
“That said defendant is indebted to the cross-complainant, Winona Assembly Summer School Association, in the sum of Thirty-Three Thousand Three Hundred Twenty-five Dollars ($33,325.00) exclusive of interest upon the notes described in its cross-complaint.
“That the defendant is indebted to the cross-complainant, Frank E. Bell, upon the claim described in his cross-complaint, in the sum of Sixty-one Dollars and Sixty. Cents ($61.60) principal and interest.
“That said defendant is indebted to the German American Building Association in the sum of Six Thousand Six Dollars and Sixty-seven Cents ($6,006.67) principal and interest, and Six Hundred Dollars and Sixty-six Cents ($600.66) attorney’s fees.
That said defendant is indebted to the cross-complainant, Milton A. Woolen, in the sum of One Thousand Five Hundred Thirty-three Dollars and Seventeen Cents ($1,533.17) which debt was incurred for heating plant installed on said premises.
“All of said indebtedness above described is past due and wholly unpaid. The said several items of indebtedness as found include interest computed to Dec. 2nd, 1911.
“The Court further finds that each and all of the debts above described were created by *436said defendant, Winona Technical Instituté at Indianapolis, in the proper establishment and maintenance of a technical or trade school upon what is known as the Arsenal site in the city of Indianapolis, Indiana, which said school is now in the hands and control of said Receiver.
“That said indebtedness and each and every item thereof is for money furnished and loaned, or goods and merchandise supplied to said defendant, The Winona Technical Institute at Indianapolis, at its special instance and request; that the same was reasonably necessary for the establishment, maintenance and equipment of said technical or trade school and was used for said purposes.
“Twenty-first. That there is due the cross-complainant, William H. Hubbard, the sum of $1,174.01 for premiums for insurance on the buildings on said real estate.
“Twenty-second. The School City of Indianapolis is ready and willing to accept the real estate in controversy in trust and establish and maintain a technical school thereon, open to all students residing in such School City and as students are admitted to other schools in said city.”
Upon the facts found specially the court stated its conclusions of law as follows:
(1) The real estate described in the complaint and the findings herein and known as the arsenal grounds in Indianapolis, Indiana, is held by the plaintiffs as trustees of a public charitable trust, in trust to be forever kept intact and dedicated to educational uses in the city of Indianapolis and to be forever used as a site for the purpose of the maintenance thereon of an industrial or trade school or schools for education and instruction and training of both males and females in the various mechanical and manual trades, arts and sciences, and of such other educational institutions as may be established and maintained thereon, together *437with all the machinery, buildings and appliances which may be used in connection therewith, and for the furnishing of places of residence for the instructors and students in such schools and as a campus or yard to be used in connection therewith, the right of attendance not to be limited to pupils residing in Indianapolis but to be open to pupils resident elsewhere under proper rules and regulations to be made by the trustees from time to time to effectuate the purposes of this trust.
(2) That the'Winona Agricultural and Technical Institute and the Winona Technical Institute at Indianapolis are each insolvent 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 said Winona Agricultural and Technical Institute, nor the said 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 neither of the defendants and cross-complainants, Winona Assembly and Summer School Association, William J. Richards, Solomon C. Dickey, The Union National Bank of Indianapolis, Winona Interurban Railway Company, Thomas C. Day, John H. Holliday, trustee, Central Supply Company, Dauner Coal Company, State Bank of Walkerton, Indiana, Indianapolis Coal Company, Woolen & Callen Company; Milton A. Woolen, W. A. Harbison, George W. Brown, John H. Vajen, J. M. Dalrymple, John H. Holliday, James W. Lilly, William H. Hubbard and Charles W. Hubbard, trustees, The Indianapolis Home for Friendless Women, Shelby National Bank of Shelbyville, Indiana, Frank E. Bell, German-American Building Association, nor any other person similarly situated, whether such person be specifically named in any of the pleadings *438herein or not, has any right or title to, or any interest, claim or lien upon the said real estate, or any part thereof.
(5) That the trust under which the plaintiffs hold said real estate has not failed so as to create a resulting trust in favor of the donors to the said Winona Technical Institute Fund, and that neither of the defendants and cross-complainants, Fletcher S. Hines, George F. McCullough, William E. Hayward, Edward C. Fletcher, Addison H. Nordyke, Robert E. Light, Kate F. McGowan, and Kate F. McGowan, trustee under the last will of Hugh J. McGowan, Delavan Smith, John J. Appel, Hilton U. Brown, Harold B. Hibben, William C. Bobbs, Fred M. Ayres, John H. Vajen, George A. Gay, Charles R. Williams, Joseph K. Lilly, Charles Mayer, Gustave A. Schnull, Arthur Jordan, Crawford Fairbanks, Andrew M. Sweeney, Frank YanCamp, Thomas Taggart, M. O’Connor & Company, Frank Fauvre, Henry Kahn, Louis Newberger, Charles W. Moore, E: Rach & Sons, W. J. Holliday & Co., Charles E. Coffin-, Solomon C. Dickey, William J. Richards, William D. Allison, Andrew J. Brunt, Nicholas McCarty, Henry Severin, George B. Yandes, Raphael Kirschbaum, Joseph A. Rink, Joseph K. Sharp, Henry Lawrence, William H. Block, George W. Stout, Clarence A. Kenyon, Guedelhoefer Wagon Company, Fremont Alford, Fred Fuehring, Winona Assembly and Summer School Association, Winona Interurban Railway Company, Thomas C. Day, John H. Holliday, trustee, Central Supply Company, Dauner Coal Company, Indianapolis Coal Company, State Bank of Walkerton,' Indiana, Milton A. Woolen, Woolen & Callen Company, W. A. Harbison, George W. Brown, J. M. _Dalrymple, James W. Lilly, John H. Holliday, Harry J. Milligan, Addison C. Harris, nor any of the other donors or contributors to said fund, whether named as defendants or cross-*439complainants in this cause, and whether specifically mentioned in the pleadings herein or not, has any interest in said real estate, nor are they, nor any of them, entitled to have the same partitioned or sold, or any interest therein conveyed to them, or any of them.
(6) That the said real estate is subject to a charge and lien for so much of the receiver’s certificates aggregating $10,000 issued under the order of the Marion Superior Court, room No. 3, in this cause, as may remain unpaid after- the application thereto of the personal property in the hands of such receiver, in accordance with the terms of such order, but no resort shall be had to siich real estate for the payment of such certificates until said personal property shall have been exhausted and so applied. And in the event that said $10,000 of receivers’ certificates are paid out’of personal property of said Winona Technical Institute at Indianapolis in the hands of said Receiver then said real estate shall be subject to a charge and lien for $2,350.28 in favor of said Charles A. Bookwalter, Receiver, to reimburse him for money by him as such receiver paid out for insurance on the buildings on said real estate.
(7) That said real estate is further subject to a charge in favor of the defendant and cross-complainant Charles A. Bookwalter, receiver of the Winona Technical Institute at Indianapolis, for the further sum of $4,792.74 expended in the care and preservation thereof, as the same have been determined by the said Marion Superior Court, room No. 3; and said Bookwalter, receiver, is further entitled to a charge and lien upon said real estate for the sum of $2,685.19 paid out by said Winona Technical Institute at Indianapolis in the payment of street and other municipal .assessments which were a lien upon said real estate. Said real estate is further subject to a lien and charge in favor of said Charles A. Bookwalter, receiver, for the sum of $6,176.13 paid out by said *440Winona Technical Institute at Indianapolis for insurance on the buildings on said real estate prior to the appointment of said receiver. Said sum of $4,792.74 above is made up of the following items, towit: Salaries of watchmen, $2,067; proportion of power plant expense, $2,625.24; repairs, $100. Said real estate is subject to a further lien in favor of said receiver for $4,400 for his services and the sum of $3,000 for his attorneys, Thompson & Hayes.
(8) That said défendant and cross-complainant Charles A. Bookwalter, receiver of the Winona Technical Institute at Indianapolis, has no other right, title, or interest in, or any claim or lien upon said real estate, except as herein stated.
(9) That the cross-complainant William H. Hubbard is entitled to a lien and charge upon said real estate in the sum of $1,174.01 due to him for premiums for insurance upon the buildings thereon.
(10) That said real estate is further subject to a charge and lien for the attorneys’ fees and expenses and services of the plaintiffs, as trustees, in this litigation and in the maintenance of the trust as the same may be hereafter allowed by the court.
(11) That the plaintiffs are entitled to an order and judgment of this court ascertaining and determining the character and scope of said trust and directing them as to the disposition of such trust property and to be exempted from any .personal liability of any kind in connection with, the property, or said trust, or with the administration of said trust.
(12) • 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.
(13) That the several sums herein declared liens upon and charges against said real estate shall be payable on or before August 1, 1915, with six (6) per cent, interest payable annually *441thereon, but the same shall not be enforceable against said real estate by any process or writ or proceeding in law or equity until after said August 1, 1915.
(14) No party defendant or cross-complainant, ñor any person similarly situated, has any right or title to, or any interest or claim or lien upon, the said real estate or any part thereof except as in these conclusions stated.
(15) That no person similarly situated to any of the persons by name made parties to this action in any of the classes mentioned in the complaint in this cause, whether he has been specifically mentioned in any of the pleadings in this cause or not, and whether he has appeared in this cause or not, has any right, title or interest in, or any lien or claims upon said real estate and all such persons shall be as fully and effectually barred and concluded by the judgment herein as they would be if they had been by name made parties to this action.
(16) That the plaintiffs should convey the said real estate to the board of school commissioners of the city of Indianapolis, as trustee, to be held in trust by it to be kept forever intact and dedicated to educational uses in the city of Indianapolis and to be forever used as a site for the purpose of maintaining, or causing to be maintained thereon such school, or schools, for the education, training and instruction of both males and females in the various manual and mechanical trades, arts and sciences, and such other educational institutions as such trustee may establish or cause to be established and maintained thereon to effectuate the trust, together with all the machinery, buildings and appliances which may be used in connection therewith, and for the furnishing of places of residence for the instructors and students in such schools and as a campus or yard, to be used in connection therewith, with a provision in said deed that the said grantee shall have no power in any manner to a lien or incumber or *442creat any debt, 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 years from this date, fail to put in operation upon 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 twelve consecutive months, fail to maintain or cause to be maintained, thereon such a school, then its right 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.
Appellee trustees, in their complaint, allege substantially the facts as set out in the findings of the trial court, with the exceptions hereinafter negatived, and also specifically allege “that according to the announcements made by the promoters and managers of the said Institute, both through the public press in the city' of Indianapolis, and at various public meetings held in such city, the principal purpose of said institute was to be the establishment and maintenance of that branch of technical education, known as trade schools, wherein the pupils and students might be taught both theoretically and practically various trades; that the principal and main purpose in the minds of the subscribers to said fund in creating the same, and the principal inducement leading to the creation of that fund was the establishment and maintenance of such trade schools in the City of Indianapolis. * * * That these plaintiffs as such trustees are advised that they cannot with safety to themselves make any conveyance or disposition of said lands and premises, until some *443court having jurisdiction of the subject-matter and of the parties, shall adjudicate the rights of the several classes of claimants, and define the duties of these plaintiffs as such trustees; that they now are and at all times have been ready and willing to fully perform all their duties as such trustees. That for their protection it is necessary that a plenary suit shall be brought to which all classes of claimants shall be made parties, to the end that they may be bound and concluded by the judgment rendered therein, in which the court can properly adjudge and determine the rights of all and singular the persons claiming or who might claim any interest in said lands and premises, or the proceeds thereof.” There is no allegation that the contributors to said fund or the creditors of said institute have no right to or claim against said trust, or that appellees held said real estate as trustees of a public charitable trust, or that any other parties claimed that they so held s,aid real estate.
The answer and cross-complaint of appellees Addison C. Harris and Robert C. Light and of Hugh J. McGowan and Delavan Smith alleged in substance the facts heretofore set out and that “a committee was appointed (being the plaintiffs in this action and called trustees), who were to have said fund when accumulated and to make the purchase of the government and take the title to the lands as the committee and trustees of the donors.” (Italics ours.) That “while and as the subscriptions were being taken and howsoever taken, that is to say whether upon subscription books, or upon subscription papers, prepared and used by the aforesaid subscription committee and others engaged in obtaining subscriptions, it came to be mutually understood and agreed that when the arsenal site should be purchased by the contribu*444tions made by the subscribers or donors and the title taken in the name of their said agents dr trustees, that said land should be held by said trustees' as follows: If the Winona Agricultural and Technical Institute and its officers, agents, members and friends raised the sum of $154,000.00, being a sum equal to the well known purchase price for the endowment purposes, then the trustees should convey said lands to the said Institute; but if said Institute should not become entitled to have the title to said land then the same should by said trustees be conveyed to the City of Indianapolis for educational purposes forever.” This . answer and cross-complaint did not allege that there was a public charitable trust created, nor that said Winona Agricultural and Technical Institute was to be trustee of said trust, but that under certain conditions “the trustees should convey said lands to said institute.”
Appellants Edward C. Fletcher, Fletcher S. Hines and William E. Hayward, by their answer and .cross-complaint, as subscribers and donors to the fund, for themselves and others similarly situated, set out the facts as heretofore stated, and in addition thereto allege that: “The conditions upon which the plaintiff trustees might or could have exercised the power to convey said lands to the WTinona Agricultural and Technical Institute never existed for the reason that the organizers of said Winona Agricultural and Technical Institute never existed and for the reason that the organizers of said Winona Agricultural Institute never complied with the conditions upon which said Institute was entitled to receive a deed from the plaintiffs as such trustees for the purpose of maintaining such school or Institute, that each and all of the conditions' upon which the plaintiffs might or could have exercised the power to convey sai d lands to any corporate *445organization by the said promotors of said Winona Agricultural and Technical Institute for the purpose of establishing and maintaining a Technical Institute or Trade School under Evangelical Christian influences or otherwise, upon said real estate, has wholly and utterly failed and said power and authority, if it ever existed, has ended and ceased before the beginning of this action; said trustees, the plaintiffs, now hold the legal title to said real estate and every part thereof for the use and benefit of the several subscribers to the fund aforesaid in the proportion of their several and respective subscriptions and payments to said fund, and as a trust created by said subscriptions and payments resulting in equity and arising by implication of law from the facts aforesaid; and said implied or resulting trust should be enforced and executed by a conveyance to or for the benefit of said several subscribers in such proportions, free and discharged from all claims and demands of all the defendants other than the subscribers, contributors and donors to said funds” (Italics ours.) That “the City of Indianapolis or the school city of Indianapolis, has no right, title and interest in and to said real estate; that the act-of the General Assembly of Indiana, approved Mar. 1, 1911 (Acts 1911, page 96) is void and in violation of the Constitution of Indiana.” It is then asked that said real estate be ordered sold by the appellee trustees or by a commissioner to be appointed by the court for that purpose and that the proceeds of said sale be distributed to the contributors and donors to said fund in proportion to their contributions and donations.
The Union National Bank, Wm. J. Richards and other creditors of Winona Technical Institute by their pleading contend, after a partial statement of facts, as heretofore set out, that the Winona Tech*446nical Institute was indebted to them in various sums for money loaned to it which had been used by said institute in the operation of the same, to make improvements on said real estate, to purchase equipment, and to pay the salaries of the teachers of said institute.
The board of school commissioners of the city of Indianapolis by its pleadings asserts “that as to the other facts averred * * * this defendant has not sufficient knowledge to admit or deny the same; that this defendant is the only common school corporation within the- city of Indianapolis and that for common school purposes, it has exclusive jurisdiction throughout the corporate limits of said city; that on the-of May, 1911, this defendant in a regularly and duly held meeting of its members and by the unanimous vote of all the members present, being more than a legal majority, adopted a resolution reading as follows:
“ ‘Whereas, it has come to the knowledge of the Board of School Commissioners of the City of Indianapolis that there is a desire on the part of the persons who have the right to control the disposition of the real estate, improvements, machinery, plant and all other property of the Winona Technical Institute of Indianapolis, such real estate being the east half of the northwest quarter of section number six (6) in township number fifteen (15) north, of range number four (4) east in the city of Indianapolis, in Marion County, Indiana, and being what was formerly the United States Arsenal ground, to cause all of the same to be transferred to the Board of School Commissioners of the City of Indianapolis for educational purposes; primarily for conducting thereon a trade school or schools;
“ ‘Now, Therefore, Be it Resolved that the Board of School Commissioners of the City of Indianapolis hereby expresses its willingness to *447accept as a donation all of said property, subject to such just charges as shall rest thereon at the time of such donation, not exceeding Three Hundred Fifty Thousand Dollars ($350,000) but without personal , covenants for payment on the part of this Board, and subject to this Board’s carrying out the conditions of such donation, in respect of the conduct on said property of trade schools, to the extent that this Board is authorized by law to accept such donation and to perform such conditions; that the Board of School Commissioners is willing and offers to do as in said Resolution expressed.’ ”
The appellants, contributors and donors, by their brief and oral argument herein earnestly contend that there was no public charitable trust created; that the trustees held the real estate purchased with the funds by them donated and contributed upon an incomplete and imperfectly declared executory trust for a particular object and use, which has failed; that the intended gift or trust was for a particular corporation and for a particular use and upon failure of the specific object or use for which the gift or trust was intended, whether private or charitable, the fund or property is held as a resulting trust for and reverts to the donors; that the identical rule would apply and the same results follow if the gift or trust had been fully executed and the real estate transferred to the particular corporation for the particular use on the incapacity to take, dissolution or abandonment of use, even though no provision for reversion was contained in the deed; that in such ease there is no general charitable intent, and the gift or trust would be restricted to the particular corporation to be benefited as well as to the particular use; that it is a settled rule of equity that when the objects or purpose of a trust fail, or *448become ineffective, a resulting trust will arise for tbe benefit of tbe grantor or devisor and his heirs; that the funds with which the trustees purchased the arsenal grounds were given for the specific purpose and use to found and endow the institute with such real estate as a site and campus and for no other purpose; that the same was an endowment and as such is protected and controlled by the provisions of §4179 Burns 1914, Acts 1891 p. 296, hereinafter set. out.
It is further contended that the real estate in question could not be used to pay debts; that the decree of the lower court, as written herein, diverts the trust from its intended purpose; that the school contemplated by the donors to the fund was to be private and not public, a pay school and not free, to be supported by private endowment and not by taxation; that there were to be no free tuition or charity students; that on the facts properly or well found appellants are entitled to a reversal of the judgment with instructions to the court below to restate its conclusions of law and establish the right, title and interest of the donors or contributors in and to the trust property.
Appellant creditors insist that on the facts well found the case should be reversed and a new trial ordered or that the conclusions of law be restated to the end that their claims be established as equitable liens upon such real estate; that their rights are.in no way affected whether there was or was not a public charitable trust created.
Appellees contend that the decree of the lower court is correct; that a public charitable trust was created of which the Winona Agricultural and Technical Institute was only trustee; that it is insolvent and that the board of school commissioners of the city of Indianapolis should be appointed and *449is qualified to act as trustee of such, public charitable trust. We have not been favored with briefs or a presentation in oral argument on behalf of the Winona Agricultural and Technical Institute or the Winona Technical Institute of Indianapolis.
The one principal question here presented for determination by this extraordinary record, as I see it, is the nature and character of the trust, if any, or the character in which appellees hold the real estate. To solve this question it is necessary to consider and determine from the evidence what facts are well found. All parties are content, as no question is raised or presented, as to the correctness of all the special findings except the eighth, tenth and twelfth. As to these it is insisted by appellants that they are not supported by the evidence and are not well found.
The fifth finding shows there were about 4,000 donors or contributors to the fund which, it is agreed, amounted to $154,000. It appears from the eighth finding that at a-meeting held on January 8, 1903, when there were present a majority of appellee trustees, a majority of the members of the canvassing committee “and six or eight of the donors who had promised donations of sums ranging from 100 to 10,000 dollars and representing in the aggregate about forty or fifty thousand dollars of donations” (less than one-third of the entire amount), the resolution providing for a reversion to the city of Indianapolis of said real estate as set out in said eighth finding was adopted. The letter addressed to the subscribers, bearing date of January 13, 1903, .and known as the “blue letter,” requesting payment of subscriptions, did not refer to the resolution of January 8, 1903, or to any understanding that would bind the donors or sub- ' ' *450scribers to the fund by which, the real estate was to revert to the city of Indianapolis in any event. The fifth finding specifically shows that some of the appellants, viz., Hines, Fletcher and others, paid their subscriptions without any notice or knowledge of the resolution adopted January 8, 1903, and without any notice that such meeting was held. I am at a loss to understand upon what evidence the eighth finding of facts was based.
As to the tenth finding the first paragraph is an encomium on the probity, honesty, uprightness and business capacity of the canvassing committee, solicitors and trustees. This is not within the issues under the pleadings. The “character and reputation” of these citizens of Indianapolis is presumptively good, at least until attacked, and we find no attack in the record. As to the latter part of said finding, the record fails to disclose any evidence that the donors intended to vest the trustees with the power to select some corporation or persons to hold said real estate as a site for a national technical school, or that such trustees so understood the intention of the donors, or that the principal object and purpose in the minds of the various donors in making their subscriptions, payments and donations to said fund was the establishment and maintenance on said arsenal grounds of trade schools or the preservation of said tract. intact and its permanent dedication to educational uses in the said city of Indianapolis. The form of subscriptions as set out in the fifth finding clearly shows that the subscribers made their own selection; that the fund was to be for the use and benefit of Winona Agricultural and - Technical Institute. There is nothing in thé evidence that refers to any power in the trustees to make any selection of “some corporation or persons” and there is nothing in any of *451the subscription forms that warrants such finding. On the other hand one of such forms, as set out in the fifth finding, provides that the amount paid to said trustees was to be returned to the subscriber in case the said “technical Institute shall not be located on said arsenal site.” It seems to .me that the evidence clearly demonstrates that the contributors paid in money for a particular purpose and use, to purchase said real estate to be used as a site and campus of said Winona Agricultural and Technical Institute and for no other purpose, the contributors to such fund to be known as founders of the institute and a bronze tablet was to be erected with the names of some of the largest contributors. All this was in keeping with the idea that the people of Indianapolis and Indiana were to raise the money, give the foundation, and endow the school with land while the directors were to endow and manage the school thereafter. I find no evidence of ' a general charitable intent on the part of the contributors to dedicate the arsenal grounds and preserve the same intact for educational purposes on the failure of the Winona Agricultural and Technical Institute. It seems to me under the evidence that the contributions were made for a special purpose and a particular school or institute, and not for educational purposes generally.
The twenty-second special finding is that: “T.he School City of Indianapolis is ready and willing to accept the real estate in controversy in trust and establish and maintain a technical school thereon, open to all students residing in such School City and as students are admitted to other schools in said city.”
The only evidence I find that in any sense would even tend to support this finding was a stipulation that the board of school commissioners is a common *452school corporation of the State of Indiana and a verified .copy of the proceedings of -said board ■which is set out in the answer of said board to the cross-complaint of appellee Harris. This was in substance a resolution on the part of the board agreeing to be willing to accept all of the property in question as a donation, subject to certain conditions. This evidence does not show that said school board is ready and willing to accept said real estate in trust as a trustee, but rather tends to show the willingness of said board to accept the property as a beneficiary. Said board is authorized only to conduct common schools and there is .certainly no evidence in the record before us to show that the contributors to the fund for the purchase of said real estate intended to establish or maintain a common public school. On the contrary, the evidence does show that it was the intention of such contributors to establish a national technical institute, national as to its officers, as to its instructors and as to the territory from which it should draw its students. There were to be no free tuition or charity students and the institute was to be supported by- private endowment rather than by public taxation.
For the reasons above indicated I am firmly of the opinion that the eighth, tenth and twenty-second special findings are not sustained by the evidence and are in conflict with other findings which are thus supported. Under the record before us, the right and duty of this court being to ascertain and declare the justice of the case and to direct such judgment as will secure to each party his just rights, I believe the cause should be remanded with instructions. §702 Burns 1914, .§660 R. S. 1881; Bells’ Admrx. v. Golding (1866), 27 Ind. 173, 184; Buchanan v. Milligan (1886), 108 Ind. 433, 435, 9 *453N. E. 385; McAfee v. Reynolds (1891), 130 Ind. 33, 39, 28 N. E. 423, 18 L. R. A. 211, 30 Am. St. 194; Parkison v. Thompson (1904), 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677.
It is further contended by appellants that the court erred in its conclusions of law, separate exceptions to which were taken by each appellant, and errors thereof ■ duly assigned to this court. While what I have heretofore said as to the findings of fact might suffice for my final conclusions, yet at the expense of being charged with repetition, because of the insistence of the very able counsel for appellees, I am inclined to go over some of the conclusions of law and compare them' with the findings, if for no other purpose than to make my viewpoint clear. The first conclusion of law, in substance, is that the real estate in question is held by appellee trustees as trustees of a public charitable trust, the same to be forever kept intact and dedicated to educational purposes in the city of Indianapolis and to be forever used as a site for an industrial or trade school, etc. The determination of the question raised by the exceptions to this conclusion of law is the cycle around which revolve all the other questions presented, and its solution is decisive of the whole case. The question is, What was the nature of the trust, if any, intended by the contributors, not by the committee, canvassers and solicitors? Was there a public charitable trust created in said fund or in the real estate purchased with said fund? It should be remembered that there is no allegation in any of the pleadings to the effect that the contributors to the fund with which appellees trustees purchased said real estate created or intended to create a public charitable trust. Appellee Harris, in his answer, does allege that: “Said trustees took title *454to said lands as the committee and trustees of the donors, and that it came to be mutually understood' and agreed that when the arsenal site should be purchased by the contributions made by the subscribers or donors and the title taken in the name of their said agents and trustees, that said land should be held by said trustees as follows: If the Winona Agricultural and Technical Institute and its officers and agents, members and friends, raised the sum of $154,000.00 being a sum equal to the well known purchase price, for the endowment purposes, then the trustees should convey said lands to said Institute.” It appears from the pleadings, evidence and finding that the fund was raised for the specific purpose of purchasing said arsenal grounds as a site, campus and foundation of a great national technical institute, to be duly incorporated under the laws of Indiana. Its promotors resolved in Pittsburgh that: “We will endow and manage a technical institute in Indianapolis provided the citizens of Indianapolis and vicinity will secure for us United States Arsenal Grounds and buildings free of cost or incumbrance or provided they will secure grounds and buildings of equal suitability or value and our executive committee is empowered to make all contracts in the matter.” It is found by the third special finding that, at a meeting held in Indianapolis on April 23, 1902, one Dr. Dickey appeared on behalf of said Winona Agricultural and Technical Institute and presented such resolution and the plans of the promoters to establish the proposed technical school, and there represented that men of great wealth were ready to and would establish and endow such a school if the citizens of Indianapolis would, by donations, purchase said tract of land as a site on which to establish such a school. It was then determined by those *455present at the meeting to abandon all other efforts to purchase said tract of land for other purposes, and to unite in an effort to raise a fund with which to purchase said tract of land as a site on which such technical school might be permanently located. According to the fourth finding, the prospectus prepared for use in the canvass for subscriptions and approved by Dr. Dickey, was presented by the solicitors to each person canvassed for contribution. This prospectus was a detailed statement of plans and purposes and contained this sentence: ■ “One thing we may assure — the men who compose the board of the Winona Agricultural and Technical Institute will be satisfied with nothing less than the best faculty that can be secured, and that we will not rely upon tuition of the students for means with which to meet the salaries of the teachers. Men who are heart and soul in this movement will provide such expenses by generous contributions. They have already taken up the work and signified their intentions, so we are not building a fabric of plans on a foundation lacking substantial qualities.” This prospectus also contained the names of the gentlemen constituting the officers and directors of the Winona Agricultural and Technical Institute, and a copy of the resolution .passed by those interested in raising the fund, which provided that said ground when purchased with said fund would-be deeded to said institute. As will appear from the subscription forms set out in the fifth finding, some of the contributions to the trust fund were made, “in consideration of the promise of the proposed organizers of the Winona Agricultural and Technical Institute to duly incorporate the said institute under the laws of Indiana and to establish the technical department of said institute upon the United States Arsenal site at *456Indianapolis, Indiana.” Other subscription blanks provided that “the amount paid hereon to said trustees to be returned to the undersigned in case the said Technical Institute shall not be located on said Arsenal Site.” It seems clear to me that it was the intention of all the parties that the the arsenal ground should be purchased for use as a site, campus and foundation of a great national technical institute, which was to be established thereon and richly endowed; that there was no intention of using the said fund or the real estate to be purchased therewith for any other purpose. This fact is further evidenced in the various statements and representátions in the newspapers of Indianapolis and quoted by the trial court in its fourth finding of facts. It is also alleged in the answer of one of the appellees that: “It was determined to locate said technical school at Indianapolis and endow the same with a large sum, to wit, $2,000,000 and provide an annual income of at least $50,000.00 for the maintenance of the school, providing the citizens of Indianapolis would secure the said Arsenal grounds and buildings therefor free of cost or encumbrance.”
The first intimation found in the record as to the creation of a public charitable trust is contained in the first conclusion of law as announced by . the lower court. I find nothing in the pleadings, the evidence, or special findings that refers to a public charitable trust, in the sense that the same can be said to be affirmatively pleaded or proved. -Wherever one turns — to the “Pittsburg resolutions,” the statements and representations made in the course of organizing the effort to raise the funds, to the resolution adopted by those in charge of the canvass, to the prospectus used by the solicitors and given to each subscriber, to the “blue letter,” to the deed *457to appellee trustees, or to the agreement as to possession of the arsenal grounds — he finds it to be the intention and purpose to raise the money and place it in the hands of the trustees. or agents (which was done) to purchase said arsenal grounds (which was done) for a site, campus and foundation for the Winona Agricultural and Technical Institute, upon the express understanding that said institute or the directors thereof would richly endow and forever maintain the same by private endowment (which was not done), so that it Would be able to accommodate thousands of students each year from all parts of the United States without taxation to the public. Nowhere can be found an expression of any other intention or purpose. It might be proper to inquire wherein a public charitable trust is created if the institute in question was to receive no charity students or to grant no free tuition, and where the basic principle of the institution was that a student would lose his manhood or self-respect if he accepted something for nothing. There is nothing in the record that tends to support the conclusion of law that a public charitable trust was created. I have with painstaking care and attention gone over the many authorities cited by the different appellees in support of their contention that such a trust was created, but, from my viewpoint, they can have no application to the ease here made. The language used by this court in Winona Technical Institute v. Stolte, supra, where it was insisted that appellant was a charitable institution and therefore not liable for the tortious acts of its servants, is applicable here. It is there said: “We cannot sanction the contention that appellant is strictly a charitable institution. As disclosed by its articles of association, the term of its existence is fixed at fifty years. *458The amount of its capital stock is $100,000 divided into shares of $100 each. It charges persons who become students therein tuition, board and school fees. As said by the court in respect to Thiel College, in the ease of Thiel College v. County of Mercer (1882), 101 Pa. St. 530, 533: ‘What kind of a charity is that in which every one pays, either in money or work, for what he gets, whether it be food or education?’ ”
I believe, therefore, that it was the intention of the contributors to give a fund for the 'special use and benefit of the Winona Agricultural and Technical Institute; that said institute was to be duly incorporated under the laws of Indiana (which was not done); that said funds were given as and for an endowment to be used in the purchase of said arsenal grounds as a site, campus and foundation for said institute and for no other purpose.
It is shown by the fourth finding of facts that: “as ample security to the subscribers, the trustees will not only hold the collected funds but also a deed to the property until they and the subscribers are thoroughly satisfied that the school can have a sufficient inauguration and maintenance through a fixed and ample endowment.” Said fund was duly raised and the arsenal property purchased therewith from the United States government, appellee trustees receiving a deed therefor in fee simple as “Trustees of the Winona Agricultural and Technical Institute Fund.” Appellee trustees have never conveyed said real estate and still hold legal title to the same. On April 15, 1903, said trustees and Winona Agricultural and Technical Institute executed a certain written instrument, as set out in the twelfth finding, by virtue of which agreement said institute was put in possession of said real estate. Such agreement has remained in force and *459said trustees have never authorized anyone to occupy said real estate or any part thereof under any other agreements or arrangements.
From the facts set out in the thirteenth, fourteenth and fifteenth findings of fact, it is clear that said Winona Agricultural and Technical Institute has never had any endowment subscribed and paid to it; that the school which was conducted on the arsenal ground by the said Winona Technical Institute was operated with some money collected for that purpose, but. eventually with borrowed funds which now constitute a part of the debt against said Winona Technical Institute; that both the Winona Agricultural and Technical Institute and the Winona Technical Institute are, and long since have been, wholly insolvent.
The next question to be determined is, What are the rights at this time of the contributors to the original purchase fund, and what are the rights, if any, of the creditors of the Winona Technical Institute? From what has been said heretofore it is clear that the school or institute, which it was the intention to create, should receive its site or location from the contributors to the purchase fund and should then receive from the Winona Agricultural and Technical Institute a further endowment of not less than $2,000,000. The contributors or donors to the original fund fully performed their part and supplied the amount necessary to purchase the arsenal grounds and acquire the title thereto. The Winona Agricultural and Technical Institute, on the other hand, failed to furnish any endowment, or otherwise to fulfill the promises which constituted the inducement for the subscription of the original purchase fund. I am of the opinion that the intended endowment for the use and benefit of the Winona Agricultural and Tech*460nical Institute was never perfected and that it was never entitled to receive a deed from the trustees to said real estate. I believe also that a trust in said real estate arises by implication of law in favor of the contributors and donors in proportion to their several contributions and donations.
The decree appealed from attempts to divert the real estate purchased with the contributed funds to another and different purpose on failure of the Winona Agricultural and Technical Institute, that is, from a private institute to a public school, from a national private educational institution, supported by private endowment, to a local common public school supported by taxation. To test the soundness of this decree it might be well to reverse the proposition, as was done in an inquiry propounded to appellees’ counsel by a member of this court during the oral argument herein. Suppose the contributors had failed to raise the original purchase fund of $154,000 and the Winona Agricultural and Technical Institute had raised the $2,000,000 endowment, could a court of equity reasonably decree that there was a public charitable trust created and order the $2,000,000 turned over to the board of school commissioners of the city of Indianapolis? The answer must be, as made by appellees’ learned counsel, in the negative. I can find no reasonable basis for the decree as written.
It is a settled rule in equity that when the object or purpose of a trust fails, or does not become effective, a resulting trust will arise for the benefit of the donor or his heirs, and the property will revert to them. Such property cannot be diverted to a similar use when the original grant or gift was made to an express and specific use which has failed. Appellees insist that no provision for a reversion was made in this ease; that there were “no strings *461attached to said subscriptions”; that “the contributors gave their money freely and never expected to have it returned,” and, therefore, on failure of the original purpose or intention, the property will not revert to the contributors but may be used and controlled by the court for a similar purpose. The very reasons advanced by appellees to prevent the property from reverting to the contributors and donors are good and valid reasons why it should revert to them on failure of the purpose for which it was given, namely, to purchase the arsenal grounds as a site, campus and foundation for a national institute of education. This was the ambition of the donors, the hope and expectation that such institute would succeed. There was no thought that their contributions, would be returned because it was expected that the institute would have a large and ample endowment, sufficient always to maintain it. In this, these generous public-spirited donors were disappointed, but through no fault of theirs. Now some disposition of the property must be made and equity— because of the generosity and liberality of the contributors and because no other person, or persons, has any right to take or have such property— raises a resulting trust in their favor, in proportion to their contributions and donations. It might be well to say in this connection that if property which is given to an institution for a specific purpose may, by judicial decree, be diverted to a different use and purpose, not intended by the donors, then no foundation or endowment would be secure, but might be directed to a use which would contravene and defeat the very purpose for which it was given.
In Hopkins v. Grimshaw (1897), 165 U. S. 342, 353, 17 Sup. Ct. 401, 405, 41 L. Ed. 739, the court said: “If it be assumed, however, as most favorable *462to the defendant, that this deed created a charitable trust, it was not a grant indicating a general charitable purpose and pointing out the mode of carrying that purpose into effect, thus coming within.the class of cases in which courts of chancery, when the particular mode had failed, have carried out the general purpose. (Citing authorities.) But the trust was restricted, in plain and unequivocal terms, to the particular society to be benefited, as well as to the purpose of a burial ground, adding (as if to put the matter beyond doubt) ‘and for no other purpose whatever.’ The trust would end, therefore, at the latest, when the land ceased to be used as a burial ground and the society was dissolved.” (Our italics.)
In Jenkins v. Jenkins University, supra, the court says: “Here was an entire abandonment of the purposes of the trust, and apparently of the property, by the' appellant, and the respondent’s inquiry is a pertinent one, that if the land does not revert, what is to become of it? It cannot be taken to satisfy the debts contracted, with the exception of that part which was authorized to be mortgaged, and it could not be devoted to another like charitable purpose, the specific one having failed, as is sometimes done in the case of a devise. . If the plaintiff is not entitled to a reversion of the property under such circumstances, who is to have it? The authorities generally agree that it is not essential that such a deed shall contain a clause providing for a reversion, and, while it is to be construed against the grantor, it must not be construed so strongly as to make it impossible to have a reversion where none is expressly provided for in terms. It seems to us, considering all the facts and the terms of the gift, that the plaintiff is entitled to a reversion, and, even if the deed had contained an express *463■condition to that effect, it could have made the case little, if any, stronger.” (Our italics.)
The decision in the ease of Heiskell v. Trout (1888), 31 W. Va. 810, 8 S. E. 557, is thus clearly expressed in the syllabus: “Where real estate purchased with money contributed by individuals is by their direction conveyed by the vendor to trustees, to be held upon trust for a parsonage for the use of the ministers of a church, and after the property has been so used for many years the trust is declared inoperative and void for uncertainty — Held—(1) The property does not revert to the grantor; nor can the grantees hold it for their own personal use and benefit. (2) The individuals, who contributed the purchase-money, are by resulting trust in their favor the beneficial owners of the property and have a right in equity to have the property sold, and the proceeds paid to them in proportion to the sum contributed by each to the purchase-money. (3) The property having been held by the trustees not for the use of themselves but for the use of the church, which is incapable of taking or acquiring title to it, no lapse of time however long continued will bar the right of the beneficial owners to said property.”’ Other eases which sustain the same conclusion are as follows: Teele, Trustee, v. Bishop of Derry (1897), 168 Mass. 341, 47 N. E. 422; Bowden v. Brown (1908), 200 Mass. 269, 86 N. E. 351, 128 Am. St. 419; Allen v. Nasson Institute (1910), 107 Me. 120, 77 Atl. 638; Grundy, Trustee, v. Neal (1912), 147 Ky. 729, 145 S. W. 401; Printing House v. Trustees (1881), 104 U. S. 711, 727, 26 L. Ed. 902.
In Indiana this general rule of equity has been made statutory and applies where property, real or personal, is given as an endowment. Section 4179 Burns 1914, supra, provides that “If any university, college or seminary of learning owning *464property, real or. personal, which it may have obtained by gift, devise or grant for an endowment, shall be abandoned and cease to exist as such university, college or seminary of learning, such property shall revert to the donor or donors or to his, her, or their heirs.”
This being the rule in cases where the endowment has actually been paid to the school or college in question, there could be no different rule where the property intended to be given as an endowment was still in the hands of agents' and had not been delivered for the reason that the beneficiary was not entitled to receive it. Appellees contend that the above statute has no application to institutions of learning of the character contemplated by the Winona Agricultural and Technical Institute, not organized under the act of which §4179, supra, is. a part. I deem it unnecessary to pass on this point for the reason that, as has already been seen, that statute merely incorporates within its provisions a proposition, general and well established, which is broad enough to cover the case at bar.
’ For whom were appellees acting when they received the funds and transferred them to the United States, receiving therefore a deed to the arsenal property? Clearly they were acting as agents for the contributors and donors whose purpose it was to endow the Winona Agricultural and Technical Institute with the arsenal grounds as a site for the proposed school. Said institute never complied with the conditions demanded of it as prerequisite to a transfer of the property to it and the so-called trustees must necessarily hold the property at the present time as agents for the original contributors and donors. Even if properly incorporated, the Winona Agricultural and Technical Institute, on its failure, would have no right *465to transfer and deliver to another school or corporation property which it had received for a specific use or purpose. On its failure to exist the property in question would revert to the donors or heirs.
However, it must be borne in mind that the donors and contributors of the original purchase fund did not seek to avail themselves of their right to prevent the use of the arsenal property by the Agricultural and Technical Institute before it was properly entitled thereto and the record discloses that possession of such real estate was delivered to representatives of said institute on April 15, 1903, under the agreement set out in the twelfth special finding. The record further discloses that in the fall of 1903 a school consisting of two or three departments was opened on thepremisesand there operated by the so-called Winona Agricultural and Technical Institute until April, _1904, when the so-called Winona Technical Institute at Indianapolis, by Dr. S. C. Dickey, its president, assumed control and management of said school and conducted the same until a receiver was appointed for said institute and school on March 28, 1910. At the beginning of the school year in 1904, additional departments were added to the school, the faculty was enlarged and certain repairs and improvements on the buildings and equipment were made thereafter from time to time. The twentieth finding of fact sets out the several amounts due appellant creditors and finds that said amounts are due for “money furnished and loaned or goods and merchandise supplied to said defendant the Winona Technical Institute at Indianapolis, at its special instance and request; that the same was reasonably necessary for the establishment, maintenance and equipment of said technical or trade school and *466used for that purpose.” It does not appear that any of the contributors made any objection or protest to the use of the arsenal grounds by the Winona Technical Institute, while, on the other hand, it does appear that many of the contributors to the fund with which the site was purchased actively supported the school and contributed to its running expenses; that some one or more of such contributors were trustees of the Winona Technical Institute. Under these facts appellant creditors seriously contend that the' contributors and donors are estopped in equity to deny the equitable rights of the creditors to a lien on the real estate for the money and material furnished and used in the operation of said school; that the rights of said creditors are superior to those of the donors. Appellant contributors deny the correctness of this contention. We have already seen that, had the contributors been diligent and availed themselves of their right to prevent the use and improvement of said arsenal site by the Technical Institute, they might have done so, and a different question would then have been presented. It is agreed that the property is now of a value of $500,000, more than sufficient to pay all of the claims of creditors in full, amounting with interest to about $300,000, and also return to the contributors the full amount of their subscriptions. Under the facts as above stated, I believe that, the contributors having stood by and permitted the' use of said property by the Winona Technical Institute and its improvement thereof, they are now estopped from asserting that appellant creditors have no right im and to said property. As is said in Anderson v. Hubble (1884), 93 Ind. 570, 576, 47 Am. Rep. 394: “It is not necessary in order to the existence of an equitable estoppel that there should exist a design to deceive or de*467fraud. The person against whom the estoppel is asserted must, by his silence or his representations, have created a belief of the existence of a state of facts which it would be unconscionable to deny; but it is not essential that he should have been guilty of positive fraud in his previous conduct.” In Farmers’ Bank v. Orr (1900), 25 Ind. App. 71, 86, 55 N. E. 35, 40, this language is used: “Admissions, in this connection, are but representations, and as silence, where it is the duty of the party to speak, is equivalent to concealment, and these constitute the first element of estoppel, it follows, both by reason and analogy, that a party may be estopped by conduct where such conduct leads another to act or to refrain from acting, to his detriment. * * * It has been held that a party may be concluded by inferences which naturally arise from his conduct as well as express words.” Speaking .of the doctrine of estoppel in pais in the case of Morgan v. Railroad Co. (1877), 96 U. S. 716, 720, 74 L. Ed. 743, the United States Supreme Court uses this language: “The principle is an important one in the administration of the law. It not unfrequently gives triumph to right and justice where nothing else could save them from defeat. It proceeds upon the ground that he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent.”
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 *468original 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 atorneys do not create a charge on the real estate in question for the reasons 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 receiver’s 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 $45,000; 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’ so-called trustees and to their attorneys for their expenses and services in the *469maintenance of the trust “was made without any warrant or authority in the pleadings, evidence or findings, and was made after the findings of fact 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 so-called trust and brought this action to have their trusteeship judicially determined. They have prepared and presented able and exhaustive briefs and arguments which have been of great aid to this court in its effort to determine the rights of all the parties, and we should conclude that it was not only within the power of the court to make an allowance for the services rendered, but it was its duty so to do. If such allowance was not made before the special findings of fact and conclusions of law were filed, then it was right and proper that it should be made thereafter on proper presentation before final disposition of the cause.
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 are 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 *470been 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.