Dissenting Opinion.
Erwin, J.— I find myself unable to agree with the majority opinion in this cause. In the first place, the findings of the court fall far short of finding that any trust for a charitable use was ever created. The statutes of this State provide how a trust in real estate may be created, and is as follows: “No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.” §4012 Burns 1914, §2969 R. S. 1881. There is also a provision of the statute that, “Nothing contained in any law of this state shall be construed to prevent any trust from arising or being extinguished by implication of law.” §7466 Burns 1914, §4907 It. S. 1881. If, therefore, a trust in the real estate in question has been created in favor of appellees, it is by reason of the section of the statute first quoted, supra, or else it is one which arises by implication of law;
The only parties to this transaction who could *471create an express trust in this land are the subscribers to the fund with which it was purchased, or their authorized attorney, and then only in writing signed by the parties. The only writings to which the donors of the fund ever subscribed are the two subscription papers and the “blue letter,” if that can be said to be a part of the writings of the donors.
This court is in error in holding that it is now too late to object to parol testimony in support of the court’s findings. In the opinion of the writer, where a statute makes provision as to how a trust shall be created, it is immaterial what evidence may have been introduced by any or all of the parties to the litigation; unless there be some evidence of the creation of the trust in the manner provided by statute, none was, in fact, created.
The writings on which the trust for a charitable use was created, if at all, are the following:
“Winona Agricultural and Technical Institute,
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, Indiana, if the amount hereinafter mentioned, by subscription included, shall be subscribed thereto and said arsenal site can be purchased, I promise upon demand to pay to Medford B. Wilson, John Perrin, Charles Lath-am, A. A. Barnes and Frank E. Gavin, Trustees, or their successors or order, the sum of-dollars, to be used in the purchase of said arsenal site for said Winona Institute’s technical department and the establishment of said department, provided that this subscription is subject to the condition that, valid bona fide *472subscriptions of like purport with this subscription to the amountof $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.
“Technical Institute Fund.
Indianapolis, Indiana,-, 1903.
“I promise to pay upon demand 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 for the purpose of the purchase of the Arsenal site for the Technical Institute (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.
- — •)■
“Indianapolis, Indiana, January 13, 1903.
“Dear Sir—
The'undersigned trustees for the Technical Institute fund hereby inform you that valid and bona fide subscriptions to the full amount of $150,000.00 has been secured for the purpose of the Arsenal Site from the Government for the purpose of establishment of the proposed Technical Institute thereon.
“That the object may be certainly fulfilled it has been determined by your trustees and agreed to by the representatives of the Institute that the deed of conveyance to the Institute limit the property and all its proceeds to educational uses in the City of Indianapolis, and the deed to the 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. lix order, therefore, that the Trustees may be in possession to promptly submit their offer for the property, you are kindly requested to co-operate by mak*473ing 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.”
On these instruments of writing signed by those creating the trust, the donors, this trust must have been created, or not at all. The authorities cited in the majority opinion authorizing the admission of parol evidence to ascertain the intent and purpose of making a subscription never held that it could be shown by parol that a trust was created in lands, when a positive statute prohibited it being so created. This court, in an opinion by Mitchell, J., has said how a trust is created. The language of the court is as follows: “A trust may be said to be executed when it has been perfectly and explicitly declared in a writing duly signed, in which the terms and conditions upon which the legal title to the trust estate has been conveyed, or is held, and the final intention of the creator of the trust in respect thereto, appear with such certainty that nothing remains to be done, except that the trustee, without any further act or appointment from the settlor, carry into effect the intention of the donor as declared.” Gaylord v. City of Lafayette (1888), 115 Ind. 423, 429, 17 N. E. 899, 902. Quoting further from the same decision as to the question whether the deed under consideration was sufficient and effectual as the declaration of a perfectly created trust, Mitchell, J., says: “Pertinent to the first point, it may be said, if the transaction created- a trust, since the subject-matter thereof was land, it was essential to its validity that it should have been *474created or declared in conformity with section 2969 R. S. 1881 * * * This is §4012 Burns 1914, supra. In the case of Ransdel v. Moore, supra, cited in the majority opinion, the trust was created by a written agreement and the court there holds that the same may be established by any writing containing the necessary facts, but does not hold that it may be established by parol. All that it does hold is that the consideration of an express trust need not be set forth in writing, but may be proven by oral testimony.
Considering these two subscriptions, the “blue letter” .and the deed from the government, which contain all the writings signed by any of the parties to the controversy, yet in none of these is there even a hint at the creation of a trust for a charitable use. It is immaterial what may have been said or done in relation, to the subscription to the fund, or what their intentions were in paying the money. The question here is, Was there an express trust created according to law in the lands in controversy? To create an express- trust various combinations of elements have been held to be- essential, the most common being: sufficient words to create it; a definite subject; and a certain and ascertained object. Considered from the standpoint of parties, ah express trust implies a co-operation of three persons: A settlor-, or a person who creates or establishes the trust; a trustee, or person who holds the legal title to the trust property for the benefit of another; and a cestui que trust, or person for whose benefit the trust is created; 39 Cyc 34, .35.
As said in the majority opinion, “If there is any competent written evidence that the person holding the legal title is only a trustee that will open the door for the admission of parol evidence to explain the position of the parties,” citing 1 Perry, Trusts *475(6th ed.) §82. This authority requires that there first be evidence in writing of the trust.
It has been repeatedly held by this and the Appellate Court that a trust in real estate cannot be created by parol testimony.
The title to the lands in controversy is either in the contributors to the fund or in appellees as trustees for the contributors upon a resulting or constructive trust. The subscribers were not bound to complete the gift by transfer of the money, or the land purchased therewith, and the trustees had no power to do so after the failure of the Winona people to incorporate, establish and endow the institute, and after they had abandoned the object for which the subscriptions were made, even if that object was held to be charitable. Commercial Travelers’ Home Assn., etc. v. McNamara, supra; Larrimer v. Murphy (1904), 72 Ark. 552, 82 S. W. 168; Heiskell v. Trout, supra; Printing House v. Trustees, supra; First Church, etc. v. Schreck (1911), 70 Misc. Rep. 645, 127 N. Y. Sup. 174; Bowden v. Brown, supra.
If a trust was created it would imply a settlor, the subscribers; a trustee, Gavin, et al.; and a cestui que trust — who? This latter element was to be the Winona people, on condition that they complied with certain terms and conditions which they failed to fulfill; hence, we have an absence of an essential element to constitute a trust at all, either charitable or otherwise. That a trust in the lands in question was created is not to be measured by evidence, although admitted without objection, that does not create, according to the requirements of the statute governing the subject. Suppose a suit to compel the execution of a deed was instituted against a wife who had contracted to convey, without her husband joining in the deed, *476and it was proven by parol that the husband had given his consent to the wife’s conveyance, and this evidence had been introduced without objection? Could this be said to be binding on either when an express statute provides that a conveyance by the wife without the husband joining therein is void? This question has been expressly settled by this court, and held that an interest in lands can only be conveyed according to the terms of the statute. Knepper v. Eggiman (1911), 177 Ind. 56, 63, 97 N. E. 161. The failure to object to parol testimony does not and can not waive the requirements of the statute. That the subscribers contemplated the creation of a trust and not a gift, not being shown by the writings, it could not be shown by parol, and hence what their intentions were at the time of signing the subscription papers, not expressed therein, could have no force or effect in creating the trust. The majority opinion answers its own argument when it says, “No particular formality is required, or is necessary in the creation of a trust. Any agreement or contract in writing made by the person having the power of disposal over property, whereby such person agrees, or directs that a certain fund or particular parcel of property shall be held or dealt with for the benefit of others, in a court of equity, raises a trust in favor of such others against the person making such agreement.”
In my humble opinion the tenth finding is unsupported by any legitimate evidence showing the creation of an express trust in conformity with §4012 Burns 1914, supra. In all the exhibits introduced there are none which provided for an absolute transfer of the property to the Winona people until they had complied with certain specified conditions. They failed to meet these condi*477tions; hence, the subscribers or their /agents, appellees, the so-called trustees, were justified in not placing the legal title in them. As no other cestui que trust was provided for, no other could claim an interest in the land. In all trusts the trustees hold the legal title and the cestui que trust hold the equitable title. On this principle must the question of whether a trust was created be decided. If there be no cestui que trust to take the equitable title no trust was, or could be created. The majority opinion says that: “There is no doubt from all this (statements of Dickey) and other evidence that the donors * * * had it in mind that, when the legal title to the land in question should be bestowed on the proposed corporation, it should be coupled with a limitation of the use for educational purposes.” It is immaterial what the donors had in mind so long as it was not reduced to writing. The majority opinion admits that the writings are insufficient to create a trust in favor of any person or persons by the statement, “From these circumstances in connection with the incompleteness and indefiniteness of the subscription paper the court properly found the inferential fact involved in the tenth finding.” This indefiniteness in the writing, as held by the majority opinion, leaves the trust incomplete and uncertain, but it holds that it is certain that none was created in favor' of the Winona people. If none was created in their favor, none was created in favor of any one, and the best that can be said is that they were making an effort to create one, but it remained incomplete and executory and a court of equity has no power to complete it. As was said by Mitchell, J., in Gaylord v. City of Lafayette, supra, on page 429: “Where, however, property has been conveyed upon a trust, the precise nature of which is imperfectly declared, or where the donor *478reserves the right to define or appoint the trust estate more particularly, although it may be apparent that the creator of the trust has, in a general way, manifested his purpose ultimately, at a time and in a manner thereafter to be determined, either by himself or by the trustee, to bestow the property upon a person named, the trust is incomplete and executory, and not within the jurisdiction of a court of chancery, the rule being that courts of equity will not aid a volunteer to carry into effect an imperfect gift or an executory trust. Adamson v. Lamb, 3 Blackf. 446; Harman v. James, 7 Ind. 263; Dillon v. Coppin, 4 Mylne & C. 647; Colyear v. Mulgrave, 2 Keen, 81 (97); Edwards v. Jones, 1 Mylne & C. 226; 2 Story Eq. Jur. 793b; 2 Pom. Eq. Jur., section 1001.” See, also, 2 Pomeroy, Eq. Jur. §1009, note 1; Heiskell v. Trout, supra; Christian v. Highland, Admr. (1903), 32 Ind. App. 104, 109, 69 N. E. 266. In the case last, cited the court, on page 109 says: “It. is not enough for the deed of conveyance by which it is proposed to create a trust that it shall merely indicate an intention of the parties thereto to create some sort of a trust. The trust must be expressed in the instrument, or by reference therein to some other writing, so that the court which is called upon to enforce it as an express trust may ascertain, without resort to parol evidence the character of the trust. To this end a beneficiary should be named or indicated.” (Our italics.) Quoting further: “It may be claimed, plausibly, that there is indication in the writing that the grantee was not to hold absolutely for his own benefit alone, for in such ease the words “in trust” would be wholly superflous; yet there can not be said to have been more than the ineffectual expression of a desire to create a trust, inasmuch as the writing by which an express trust is created must *479contain, a proper and sufficient declaration of the trust, and not stop short with the designation of a trustee. See Dillaye v. Greenough, 45 N. Y. 438.”
The donors in this case never completed the trust. • They manifested a purpose ultimately, at a time and in a manner thereafter to be determined, either by themselves or by their agents, appellees, to bestow the property upon the Winona Agricultural and Technical Institute; therefore, the trust was executory and incomplete and not within the jurisdiction of a court of chancery, and equity will not aid in carrying it into effect whether the intended gift or trust was for private or charitable use, Gaylord v. City of Lafayette, supra; Wright, Gdn., v. Moody (1888), 116 Ind. 175, and eases cited on page 179, 18 N. E. 608; Stone v. Hachett (1858), 12 Gray (Mass.) 227, 230; Welsh v. Henshaw (1898), 170 Mass. 409, 413; Milroy v. Lord (1862), 4 DeGex, F. & J. 263, 274; Dipple v. Corles (1853), 11 Hare 183; Richards v. Delbridge (1874), L. R. 18 Eq. 11; Young v. Young (1880), 80 N. Y. 422, 437, 438, 36 Am. Rep. 634; Cowan v. Wheeler (1845), 25 Me. 267, 43 Am. Dec. 283; Steere v. Steere (1820), 5 Johns, Ch. (N. Y.) 1, 9 Am. Dec. 256; Orth v. Orth (1896), 145 Ind. 184, 42 N. E. 277, 44 N. E. 17, 32 L. R. A. 298, 57 Am. St. 185; Bennett v. Littlefield (1901), 177 Mass. 294, 58 N. E. 1011; Ould v. Washington Hospital, supra; 1 Perry, Trusts § §357, 359.
In the ea.se of Wright, Gdn., v. Moody, supra, Mitchell, J.,onpage 179says: “Where,however, the owner of real estate, without contemporaneously declaring a Valid trust, makes a voluntary conveyance to another in pursuance of an oral or imperfect agreement that the later shall reconvey to the owner, who orally agrees to hold for the benefit of, or convey to, some third person, upon whom the *480owner desires to confer the property as a gift, there arises no resulting trust enforceable by the proposed donee. In such a case, until the gift is fully executed and the possession surrendered, the property remains within the direction and under the dominion and control of the beneficial owner.” (Our italics.)
If the trust were created as claimed by appellees why appeal to a court of chancery to ascertain their rights and duties? The fact that they held the legal title to the property (and they took it by virtue of an election by the subscribers of them as agents) without any definite directions in any of the writings as to their-duties, except to turn it over to the Winona people, is evidence sufficient to establish the fact that- no express trust was created. “A trust and a trustee of real property may be created by any writing which passes the legal title to the trustees, and contains a proper declaration of the trust, (Hill on Trustees p. 63-4). But the writing must declare what the trust is.” Dillaye v. Greenough, supra. Quoting further from this same opinion, “A trust must be manifested and proved by writing, and the nature of the trust, and the terms and conditions of it must sufficiently appear, so that the court may not be called upon to execute the trust in a manner different from that intended. * * * But it is sufficient to say that the terms and conditions of the trust must be expressed in writing.” It is not enough to say that the trust was created in the money when paid to appellees and that it continued into the real estate. The purpose of the subscription's was to buy the real estate, and the question here is the title to the same.
It is not contended that appellees own the land in question in fee. These men are but the agents of the subscribers and hold title for them, in carrying into effect the proposed purchase of the arsenal *481grounds and giving the same to the Winona Agricultural and Technical Institute. They were not the trustees of an express trust for none was expressed. The nearest any of the writings come to creating the trust, and the only one designated, is that appellees were authorized to buy the lands with the' funds subscribed and to turn it over to the Winona people. There is a wide distinction between “trustee” and “agent.” An agent represents and acts for his principal. A trustee is defined generally as a person in whom some estate, interest or power in or affecting property is vested for the benefit of another. Mechem, Agency §42; Taylor v. Davis (1883), 110 U. S. 330, 334, 4 Sup. Ct. 147, 28 L. Ed. 163. Agency is often said to be a relation of trust and confidence, and that property in the hands of an agent is often held to be impressed with a trust for the benefit of the principal, yet the two relations are not identical. A trustee holds a legal title; the agent has usually no title at all. The trustee acts in his own name; the agent acts regularly in the name of' his principal. A trust does not necessarily, or even usually, involve any authority to enter into contracts which shall bind another; the authority to make such contracts is the distinguishing characteristic of agency. • Trusts are usually not revocable; agency usually is revocable. Mechem, Agency §42; Flaherty v. O’Connor (1903), 24 R. I. 587, 54 Atl. 376; Lyle v. Burke (1879), 40 Mich. 499; Kraft v. Neuffer (1902), 202 Pa. St. 558, 52 Atl. 100; Sessions v. Moseley (1849), 4 Cush. (Mass.) 87, 92; Grover v. Grover (1837), 24 Pick. (Mass.) 261, 35 Am. Dec. 319; Thompson v. Dorsey (1853), 4 Md. Ch. 149; Wells v. Collins (1889), 5 L. R. A. 531, 74 Wis. 341, 43 N. W. 160, and notes.
If appellees were trustees, their powers and duties *482were determined by the writings creating them trustees, and they needed no direction from a court of chancery. The fact that they went into court asking that their duties be declared was an admission that they were vested with no power as trustees. Courts of chancery , do not create trusts. It is their duty to enforce them.
It is conceded by the majority opinion that, if it had been impossible to purchase the arsenal grounds from the government, the donors would have been entitled to a return of the money. I am unable to distinguish between the right to a return of the money and a restoration to the donors of that represented by the money which purchased it, viz., the real estate. But I take it that this is an argument in favor of the proposition that, if from any cause the trust failed of consummation, the donors were entitled to the money or land purchased with the money. It seems to me that a court of chancery would have the same right to direct that the money paid by the donors should be taken and applied to educational purposes in Indianapolis as it would to take the real estate.
The cy pres doctrine has no application to this ease. This doctrine has only to do with trusts that are created and need only to be administered, and does not authorize a court of chancery to create a trust in conformity with what the chancellor may gather from oral testimony was the intention of the donors, when they signed the subscription. But nevertheless'it is conceded that, if another trustee could not be found to administer the trust in accordance with the trust instrument, the money should revert to the donors. It is contended by the majority opinion that the cy pres doctrine is in effect and authorizes a court of equity to supply what is lacking in this contract to effectuate a trust. Cy *483pres is defined as follows: “The rule of construction applied to a will (but not to a deed) by which, where the testator evinces a general intention to be carried into effect in a particular mode which cannot be followed, the words shall be so construed as to give effect to the general intention.” 1 Bouvier, Law Dictionary 489 (Rawle’s [3d ed.] 745) and authorities cited. In this state this doctrine can be used only to construe a will for the purpose of effectuating the express intent of the devisor. Grimes’ Executors v. Harmon (1871), 35 Ind. 198, 9 Am. Rep. 690; Erskine v. Whitehead, supra. In this case there was in none of the writings any express intent to create a public charitable use, but, on the other hand, there was expressed an intent to purchase the land in question for a certain and definite purpose, and that to found a national school of technology, to which should be admitted scholars from the whole world. This ex-' pressed intent having failed the property reverts to the original donors. Teele, Trustee v. Bishop of Derry, supra; Hopkins v. Grimshaw, supra; Bowden v. Brown, supra; Harris v. Neal (1906), 61 W. Va. 1, 55 S. E. 740; Brown v. Condit (1908), 70 N. J. Eq. 440, 61 Atl. 1055; Allen v. Nasson Institute, supra; Jenkins v. Jenkins University, supra; Provost, etc., of Dumfries v. Abercrombie (1876), 46 Md. 172; Board of Education, etc. v. Edson (1868), 18 Ohio 221, 98 Am. Dec. 114. Cy pres has no application to gifts or trusts inter vivos and is applicable, if at all, in this State to wills. This is because, if a person be living and has not sufficiently expressed his intention, or the object of his bounty (as in this case the Winona people) fails, he may re-express his intention or select a new object. No application of the doctrine of cy pres as a rule of construction, were it not limited to Wills, could be made to the subscription papers,' *484and including the “blue letter,” which would justify a finding of facts which would support conclusions of law Nos. 1 and 16. None of the objects, features and conditions expressed in these conclusions are in -equivalent terms expressed in the subscription papers or in the “blue letter.” Teele, Trustee v. Bishop of Derry, supra; Hopkins v. Grimshaw, supra; Brown v. Condit, supra. And no application of the doctrine of cy pres, even as a prerogative power, could be made to the subscription papers, including the “blue letter,” which would justify a finding of fact that would support conclusions of law Nos. 1 and 16, in so far as they relate to the mode for obtaining the particular object intended by the donors as expressed in the subscription papers and the “blue letter.” The mode intended was through the particular institution organized by the men of great wealth' and influence, to be endowed with millions of dollars, and thereby established with a secured income from endowment, the school to be of a specific character and administered as had been outlined by the proposed incorporators, etc. The contributors contemplated a specific mode of administration. The mode of obtaining the object was of the substance of the gift, and in such case the doctrine of cy pres, even as a prerogative power, did not apply. 2 Perry, Trusts (6th ed.) §728, note 1200, citing many English cases; Brown v. Condit, supra; MacKenzie v. Trustees of Presbytery, etc. (1905), 67 N. J. Eq. 652, 61 Atl. 1027, 3 L. R. A. (N. S.) 227; Teele, Trustee v. Bishop of Derry, supra; Bowden v. Brown, supra; 2 Pomeroy, Eq. Jurisp. (1st. ed.) §1027 and English cases cited. It is the duty of the court to construe and enforce a trust according to the intent of the creator. It is not the duty of the court to create a trust. Allen v. Nasson Institute, supra. It was clearly the in*485tention of the subscribers to the fund that they would furnish the site or foundation, if the Winona Agricultural and Technical Institute Would provide the large endowment which had been promised. The endowment was never waived by the contributors. Those who paid upon receipt of the “blue letter” only waived their right to insist, concurrently with the delivery of the deed, upon the large endowment; as to them, the effect of the “blue letter” was to require a certain portion of the endowment to be furnished, before the deed was to be delivered. The trust which would be created under the order of the court has no endowment feature whatever. There is no evidence or finding that any endowment has been or will be provided. If the school commissioners as trustees are to establish and maintain any kind of school upon the site, it must necessarily be done from public revenues raised by taxation. It cannot be gathered from the subscription papers that the donors intended to' contribute the fund for a site for a school or schools to be established and maintained by taxation of themselves and others. The evidence and finding are to the contrary. Nor can it be gathered from the subscription papers that the land was to be held in trust and forever dedicated “to educational uses in the city of Indianapolis” in the broad sense expressed in conclusion of law No. 16, including “a 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 the trustees may establish or cause to be established and maintained thereon,” etc. This would include any kind of a school. The school clearly indicated by the subscription papers, contrued by the court when it places itself in the position of the subscribers, was *486of the character outlined in the “Pittsburg resolution” and the platform adopted at Winona and other authorized statements. It was to be a National School of Technology, and was not'to duplicate school or college work, etc. The other provisions in conclusion of law No. 16 are none of them found in the subscription papers.
The carrying into effect by the judgment of the court of conclusion of law No. 16 would violate the express conditions in the subscription papers and the “blue letter.” By the terms of these papers, construed by their terms and from the circumstances and surroundings of the subscribers and contributors, as shown by the previous findings, the gift or donation or intended trust was not to take effect until (1) the institution had been duly incorporated, (2) had established its technical department by endowment, (3) the amount of $150,000 had been subscribed, the subscriptions to be of like purport with the first subscription papers; (4) and the subscriptions were to be returned to the subscribers, if the institute should not be located (in the sense in which this term was used) on said arsenal site, and (5) the deed was not to be delivered (see “blue letter”) until the institute corporation should have in cash or bona fide collectible subscriptions (evidently a part of the endowment) a sum. at least equal to the purchase price of the real estate. All these conditions were either concurrent or precedent to the vesting of any interest in the intended donee or beneficiary, and concurrent or precedent to the impressing of either the fund or the land with any kind of a trust, other than for the subscribers and contributors. It was clearly the intention of the subscribers and contributors that those conditions should be complied with. None of them have been complied with. No provision is made in conclusion *487of law No. 16 or any other conclusion, nor in the judgment of the court for any of these conditions to be complied with. There did not exist at the time of the trial, or at any time, a trust such as is declared in said conclusion, or any trust except for the subscribers and contributors. The question is not whether the trust may fail for the want of a trustee, but whether the trust described in the conclusion itself exists. It cannot be declared to exist without the violation of the plain intent of the subscribers and contributors.
The trust which would be, so created would be in conflict with the intent of the contributors to the fund as found by the court in the tenth finding. The court expressly finds that: “The donors understood and intended that said funds so donated and paid should and would, be used by said trustees (the plaintiffs) appellees 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 said real estate would be retained intact for such purpose,” etc. If the creators of the trust expressed the intention that the plaintiff appellees, or some corporation or persons selected by them, should hold the land in perpetuity as a site for a national technical institute, etc., it was not competent for the court to select a trustee when there was no vacancy and the plaintiffs were óffering to execute the trust.
There is no evidence to support the twenty-second finding that the school city of Indianapolis is ready and willing to accept the real estate upon the trusts in said finding declared. The trusts therein declared were not declared by the subscribers and contributors. All the evidence is to the effect that the school city was willing to become the *488donee under the act of 1911; If the act is valid, it provides for the support of the school by taxation. Acts 1911 p. 96, §6549a Burns 1914. The constitutionality of the act of 1911 is attacked by the pleadings. It is clearly unconstitutional.
In the case of Bullock v. Robison (1911), 176 Ind. 198, 93 N. E. 998, this court held in an opinion, written by a member of this court at this time, involving the legality of a similar act (Acts 1909 ch. 38, p. 89, §6539 Burns 1914) that a law providing for contributions to the art institute of the city was void as contravening §22, Art. 4, of the Constitution, it being class legislation. This decision was handed down by this court on February 14, 1911, and a rehearing denied June 23, 1911. The act of 1911 in relation to the maintenance of trust estates by taxation, being the act under consideration was approved, with an emergency clause on March 1, 1911. If the act of March 1, 1909, is unconstitutional, and it certainly is, for the reasons assigned in Bullock v. Robison, supra, then the act of 1911 is also unconstitutional for the same reason. •
Section 22, Art. 4, of the Constitution is as follows: “The general assembly shall not pass local or special laws in any of the following enumerated eases, that is to say: * '* * Providing for supporting common schools and for the preservation of school funds.” This same question was decided by a member of this court while sitting as a judge of the circuit court, and held that a statute concerning common schools which apply to cities or towns having a designated population only is violative of this clause of the constitution. The decision of the lower court was upheld by this Court in School City of Rushville v. Hayes (1903), 162 Ind. 193, 70 N. E. 134. In the act of 1911 it is provided that it shall apply to *489cities having a population of 200,000 or over. Is this any different from providing that it shall apply to cities having a population of “not more than 4,545 and not less than 4,540”? We know that the act of 1911 applies to Indianapolis alone. For the reasons stated in the last two cases cited, the act of 1911 is unconstitutional and void, and the city of Indianapolis under that act could not maintain the institution in the manner as contemplated by the subscription papers, or in the manner, as found by the trial court, in which it was to be maintained. This law being class legislation is void and as this is the only authority under which appellee claims to have the right to take the lands in question, .as trustee, it must follow that the court’s conclusion to turn it over to said city is erroneous.
The institution and school which was to be established and maintained and which is contemplated by the express terms of the subscription papers was not such an institution or school as the city of Indianapolis has power to establish and maintain, and, therefore, it-cannot raise money by taxation for either endowment or maintenance. It is, therefore, impossible for it to comply with the conditions. Maxcy v. City of Oshkosh, supra; Allen v. Nasson Institute, supra; Board v. Dinwiddie, supra; Skinner v. Harrison Tp., supra. The board of school commissioners of the city of Indianapolis has no power to levy a tax to support a trust of which it is merely a trustee.
The eighth, tenth, and twenty-second findings of fact, or at least the material parts thereof, are not sustained by sufficient evidence, and there is not sufficient evidence upon which a'finding could have been made upon the subject-matter of the twenty-second finding or that would have supported conclusion of law No. 16. If said findings, or the ma*490terial parts thereof, are not supported by sufficient evidence, there are no findings or evidence to support the conclusions of law.
The court erroneously applied those principles which it believed applicable to a perfectly declared executed express public or charitable trust. The evidence and facts proven did not show that such a trust had been created. Upon a correct application of principles, the findings of fact mentioned in No. 1, supra, could not have been made. The errors in the application of the principles to the evidence, facts and cause are carried into all said conclusions of law and the judgment thereon. The facts found do not support conclusions of law Nos. 1, 5, 6, 7, 9, 10, 12, 13, 14, 15 and 16, or either thereof. The subscription papers set out in finding No. 5, even including the “blue letter” set out in the ninth finding, together with all other facts relating to each thereof set out in other findings, are not sufficient to support conclusion of law No. 1, that the real estate is held by the plaintiffs as trustees of a public charitable trust as set out in said conclusion. The tenth finding in which it is found that “the donors understood and intended that said fund so donated and paid should and would be used by said trustees in purchasing certain real estate to be held in trust by said trustees or some corporation or person selected by them in perpetuity as a site for a national technical school,” etc., and the’twenty-second finding, that the school city of Indianapolis is willing to accept the real estate in trust and establish and maintain a technical school thereon, open to all students in such school city and as students are admitted to other schools in said city, taken together, and with other facts found, do not support conclusion of law No. 16, that the plaintiffs, who so held as trustees with the right to select *491other trustees, should convey said real estate to the board of school commissioners of the city of Indianapolis, as trustee, to be by it held in trust for the uses and subject to the terms and conditions set forth in said conclusion. The uses, terms and conditions set forth in the conclusion are not included in the object expressed by the subscribers. The conclusions of law Nos. 1 and 16 made by the court and the judgment and decree in accordance therewith are as plain and clear a diversion and change of purpose from that intended by the contributors to the fund as it would be possible to make: A change from national to purely local; a change from a school of technology that was to be unique among the educational institutions of the United States and the world to an Indianapolis common school; a change from a school to be supported and maintained forever by private endowment to one that can only be supported by public taxation; a change from one in which all students, rich and poor alike were to pay for their tuition, the intention being that there were to be no charity students, and no free tuition, to a school where the tuition must be absolutely free. The twenty-second finding and conclusion of law' No. 16 are in conflict. The twenty-second finding is to the effect that 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, while conclusion of law No. 16 and the decree rendered thereon provides that the right of attendance in any such school shall not be limited to pupils residing in Indianapolis but shall be open to pupils residing elsewhere.
In conclusion I am of the opinion that: (1) No *492express trust was ever created according to law in the lands in controversy in favor of any person or corporation, but that all that was done was nothing more than an unsuccessful attempt to create such a trust for a single and definite purpose, viz., a national school of technology. (2) The purpose or intention of the donors as expressed in the writings was not to establish a public charitable trust, but to be a gift to the Winona people with an endowment. (3) That the trust intended to have been consummated, having failed, appellees hold the title to the land as trustees of a constructive trust in favor of the donors. (4) That the doctrine cy pres has no application here for the reason that it is never exercised in relation to deeds or contracts. (5) That the act of March 1, 1911, authorizing the school city of Indianapolis to take and control the property as trustees of an express trust and maintain it with taxation, is void as being in conflict with clause 13, §22, Art. 4, of the Constitution of Indiana. (6) The majority opinion has the effect of saying to the people of Indiana that, when you put your name to a subscription paper, for whatever purpose, if that purpose should fail of consummation, for any reason, your money may be taken and applied to whatever purpose may be suggested to a court of chancery. The majority opinion leaves no rule of law which will allow men to make their own contracts or protect those already made. It says in effect that you may subscribe to the building of a Young Men’s Christian Association building, but, if enough has not been subscribed for that purpose, a court of chancery may apply it to the building of a church; if you subscribe to a fund to build a church it may be taken to build an old people’s home; if you subscribe to a hospital fund it may be taken to buy ambulances or pay nurses; *493if you pay money to your agent for the purpose of buying an automobile it may be used to buy a horse and wagón; you may direct yóur agent to buy a piano, he may fulfill the command by buying an organ — so it is a musical instrument of some kind you must be satisfied. The majority opinion cannot be sustained on any authority of law or principle of equity. (7) That the property should be sold, the creditors paid and the balance of the proceeds distributed to the original donors after paying costs and expenses.
Note. — Reported in 112 N. E. 780.