Concurring Opinion.
Pfaff, J.I agree with the conclusions of the majority opinion in the case but with additional reasons to support the decision, reached.
Appellee claimant bases her claims to the bonds and proceeds upon the fact that under the Treasury Department regulations governing the issue and payment of said bonds she, immediately upon the death of the decedent, became the sole and absolute owner. These regulations appear as Treasury Regulations, §315.45 (c).
The appellant estate asserts title to the proceeds of the bonds upon two theories: (1) that the bonds were placed in the names that appear on them in reliance upon appellee’s promise to use the proceeds for the publication of the decedent’s writings and that appellee is guilty of constructive fraud in asserting a right to the proceeds and therefore should be held to be a constructive trustee; (2) that an oral trust was impressed upon the proceeds of said bonds with the appellee Gail D. Kunschik as Trustee and that the trust in said bonds has failed and therefore the appellee should be held to be a resultant trustee of said bonds.
The court notes that whatever express trust was created, it was created in writing and was not an oral trust as alleged by the estate.
At the outset it is important to note the distinctions between a resulting trust and a constructive trust. A resulting trust has for its function the concept of “intent enforcement” while a constructive trust *134arises for the purpose of “fraud rectifying.” 2A Bogert Trusts, §451, p. 405 (1953).
Resulting trusts arise in cases where the settlor has by words clearly expressed an intent that a trust exists, where the trust is expressed in, ambiguous words, or where there are no words but there are acts from which the court infers an intent that a trust arises.
Constructive trusts are involuntary trusts in which there is no intent to create a trust but a court uses a trust terminology as a method of working out justice and preventing one party from unjustly enriching himself at the expense of another. 2A Bogert Trusts, swpra, at p. 405.
The constructive trust must be founded in wrong doing. It is an implied trust.
“... It differs from a resulting trust, also implied, in lacking the element of an intention to create a trust. 39 Cyc. 27. A constructive trust arises by operation of law, regardless of any intention to create it, and frequently contrary to the intention of the parties. It has its roots in fraud, actual or constructive, which constitutes an essential ingredient. Wright v. Moody (1888), 116 Ind. 175, 18 N. E. 608; Alexander v. Spaulding (1902), 160 Ind. 176, 181, 66 N. E. 694, and authorities cited.” Terry v. Davenport (1916), 185 Ind. 561, 571, 112 N. E. 998.
The Supreme Court of Indiana in Voelkel et al. v. Tohulka et al. (1957), 236 Ind. 588, 141 N. E. 2d 344, reaffirmed the proposition of the necessity of wrong doing and attempted, by way of dicta, to minimize the extent of the fraud. The Supreme Court without the citation of any authority stated that “most courts, nevertheless, will pay lip service to these notions, and extend themselves in attempts to envision their existence before imposing a constructive trust for breach of such a promise.” This we believe to be dicta, but *135the court did define a constructive fraud to exist “if there is a breach of confidence coupled with an unjust enrichment which shocks the conscience if it is permitted to stand.” Hence, here, to establish a constructive trust there must be an absence of an intention to create a trust, at least a breach of confidence and an enrichment which is unjust.
In the case at bar there existed an express trust, a termination thereof, a relinquishment of all assets by the trustee and a receipt from the settlor releasing the trustee from all further claims whatsoever. Under these circumstances it is difficult to conceive of any breach of confidence on the part of the trustee. The trustee had surrendered all of the assets, had promised to do nothing thereafter, and had been expressly relieved from doing anything. Certainly there were no representations then existing upon which the settlor could have relied to his detriment. Under these circumstances it is difficult to conceive of any breach of confidence on the part of the trustee. The mere participation by the appellee to a greater portion of the decedent’s assets in itself is not unjust. As a matter of fact the decedent in his Will did not make an equal distribution of his assets. This does not shock the conscience. The only breach of confidence that could be alleged would be the failure of the appellee to perform some act which the decedent might have had a right to claim, but as to which he had already discharged the appellee.
For the reasons noted the facts here cannot be held to establish a constructive trust.
Under the theory of a resulting trust, there is no substantial disagreement between the parties upon the applicable rules of law. It is well agreed that if, upon the termination of an express trust there is no *136beneficiary entitled to the trust property and the trustee for the benefit of the settlor or the person who has succeeded to the settlor’s interest unless the settlor manifests an intention that no resulting trust should arise upon the failure or termination of the trust. This is in accord with all the authorities.
Controversy between the parties arises upon the question of whether the decedent, upon the termination of the express trust manifested an intention that no resulting trust should arise.
The parties agree that an express trust was executed and that it was terminated. It is uncontradicted that, upon the termination of the trust, and the return of the trust res by the trustee, to the decedent in the same condition in which they were received from the decedent, the decedent in writing clearly stated “I have no further claim whatsoever upon said Gail D. Kunsehik and Paul Kunsehik.” This was in addition to acknowledgment of the receipt of the bonds.
The appellee claimant contends that this statement of no claim constitutes a manifest intention that no resulting trust arises. The appellant estate in its brief does not sufficiently provide an answer to this argument.
It is to be noted that under the rule where an express trust terminates the remaining trust res is held on a resulting trust for the settlor or in the event of his death, for his estate. It would therefore appear that the estate would acquire no greater right after the death of the settlor than the settlor had during his lifetime and after the termination of the express trust.
Hence, assuming that A, a settlor, gave to B, as trustee, certain cash under the terms of an express *137trust, and thereafter the parties by mutual agreement terminated that trust, but B retained the cash and that, in addition to termination of the trust, A released B from any and all calims whatsoever he had against B. Under such circumstances A could not thereafter, successfully seek a decree declaring the cash in the hands of B, the subject of a resulting trust; therefore under the same circumstances A’s estate should not be able to obtain such a decree.
Here the language of the release is broad enough to release the claim of a resulting trust. It releases “any further claim whatsoever.” It would not seem logical that such release could be effective as against the decedent from March 7, 1944, until the date of his death, and then vanish in favor of the appellant estate, not for the purpose of carrying out what the estate claims is the intention of the decedent, but for the pecuniary gain of others.
I must therefore hold that in view of the release there can be no decree establishing a resulting trust.
Note. — Reported in 186 N. E. 2d 803.