I dissent from the majority opinion. The writing set out in full and signed by Reiter includes all the elements of an express trust. It specifies a property, the name of the beneficiary and her interest and the manner in which the trust is to be executed. We have held an instrument in writing, including the foregoing, creates an express trust. (People v. Chicago Bank of Commerce,371 Ill. 396.) In Marble v. Estate of Marble, 304 Ill. 229, quoting from Perry on Trusts the court, on page 240, says: "In section 82 it is said that `there is no particular formality required or necessary in the creation of a trust. Any agreement or contract in writing made by a person having power of disposal over property, whereby such person agrees or directs that a particular part of property or a certain fund shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him, voluntarily or with notice.'" The fact that Reiter, prior to delivering the writing, had been in possession of a larger sum belonging to appellant, which had been treated between them as a loan, is not material as it was competent for the parties to change that situation and bring into effect the trust relationship by the giving and acceptance of the instrument in question. This writing established the trust relationship and the burden is upon the trustee to discharge it. It is claimed the acceptance of $1000 by appellant, from Reiter, which was credited upon the amount included in *Page 335 the writing, and other money claimed to be interest upon the balance unpaid, shows the whole transaction to have been a loan. Reiter had in his possession other mortgages of appellant, on which he collected and remitted payments of principal and interest. There is nothing in the record that indicates appellant waived the rights she acquired by the writing or that she had information that Reiter had not invested the money in a first mortgage as specified. Reiter recognized the importance of the paper he delivered by requiring it to be surrendered when he delivered the mortgage or mortgages. It is not the law that a trust relationship declared in writing, can be discharged by the actions of the trustee alone. It is my opinion that the relationship between the appellant and Reiter, existing prior to March 18, 1930, was deliberately changed and new relationship substituted and created by the written instrument in question. After it was executed Reiter held the money for only one purpose and that was to purchase first mortgages on Chicago property. If he had used the money he acknowledged he had on hand, and invested it in a mortgage taken in his own name, it cannot be doubted that a trust would be impressed upon such property in favor of appellant. With nothing in the record to establish that appellant knew how Reiter was handling the funds, she had a right to assume that he had invested it in a first mortgage as he had agreed. In my opinion an express trust was created which would entitle appellant to have a claim allowed against Reiter's estate, of the fifth class.
I think the judgment of the lower court should be reversed.
JONES and FARTHING, JJ., concur in this dissenting opinion. *Page 336