establishments. Of said 4,000 persons contrib uting to said fund of $154.000 the names of about 2,600 of them are in evidence in this case and the amount contributed by said last number, including $15.000 paid in by the Winona Assembly and Summer School Association amounted to about $150,000.

"That all said several payments were made by said Hayward without any notice or knowledge of 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 asto 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 bead 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 $100,000, and same shall be divided into shares of $100 each in amount.'

"The defendant and cross-complainant Fletch-sociation law of the state of Indiana, attempting er 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 $2,500; and the defendant Addison H. Nordyke subscribed and paid to such fund the sum of $1,000. 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 "And it is further provided in articles 2, 3, canvass to raise funds for said purpose than 6, and 8 of said articles of incorporation and asthat obtained from the columns of said Indian-sociation, and articles 2, 3, 6, and 8 of said apolis News. articles of association, respectively, are as follows, to wit:

Said Hines, Fletcher, and Nordyke each paid his subscription without any notice or knowledge of the resolution adopted January organized for pecuniary profit, in the sense only ""II. Said association and corporation is 8, 1903, as set out in the eighth finding, and that it will charge and receive money for tuiwithout any notice that any such meeting was tion, board and like school fees and bills, but held as is described in said finding No. 8. "The defendant and cross-complainant Wil-in the sense that the members of shareholders liam E. Hayward subscribed $500 to said fund of said association and corporation shall be enon the 22d day of September, 1902, on a blank titled to receive dividends or like distributive of the form first above set out, and paid the shares of surplus income, earnings, issues, and profits of said association it is not organized same on the 15th day of January, 1903; on March 4, 1903, he subscribed an additional for pecuniary profit, inasmuch as said associa$100 to said fund on the second form of blank tion is organized for philanthropic purposes and above set out, and he paid the same on March its stock shall be issued and accepted with the 13. 1903; on or about March 12, 1903, he sub-express agreement that all surplus of earnings, scribed by letter to said fund the sum of $3,400 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 rent 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 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 on March 14, 1903, together with an additional one of $1,000 contributed by him that day by giving his check dated March 14, 1903, for $4,400, a copy of which check is as follows: "No. 36175. Real Estate Office of W. E. Hayward. Established 1867.

inconie, issues, and profits shall forever remain the property of said association, and that no dividends or like distributive parts of any 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 the 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 $100,000, and the same shall be divided into shares of $100 each in amount.'

"III. The object of said association and cor poration 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 associa tion 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 oflice 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 any

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 oflice shall be located, in the city of Indianapolis, Indiana.' And, further, the amount of the capital stock of this association and corporation shall be and is $100,000, and the same shall be divided into shares of $100 each in amount.' "And it is further provided in articles 2, 3, 6, 8, and 10 of said articles of incorporation and of association, respectively, as follows:

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 incumbranees 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 certificate 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.

"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 shareholders of the association and corporation shall be entitled to receive dividends "The said articles of association of said Wior like distributing shares of surplus income, nona Agricultural and Technical Institute were earnings, and profits of said association, it is sigued by S men, and the articles of Associanot organized for pecuniary profit inasmuch as tion of said Winona Technical Institute at said association is organized for philanthropic Indianapolis were signed by 21 men, H. H. purposes and its stock shall be issued and ac- Hanna, Thos. Kane, W. J. Richards, and Sol. cepted with the express agreement that all sur-C. Dickey signed, and they are the only ones plus earnings, income, and profits shall forever who did sign each of said articles of associaremain the property of said association and tion. 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 association 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, and the same shall be divided into shares of $100 each in

amount.

66

"III. 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 shareholders may by a bylaw 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 of at least 95 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

"Eighth. About the first of the year 1903 it was 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 8th 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 $100 to $10,000 and representing in the aggregate about $40.000 or $50,000 of donations.

"At this meeting extended discussion was had and an agreement reached assented to by a majority, if not all, of these present and par ticularly 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 should 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

"Indianapolis, Ind., 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 have been secured for the purchase of the arsenal site from the gov-ed with the Winona Assembly and Summer ernment for the purpose of establishment of the proposed technical institute thereon.

tiffs 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 had been complied with, and requested that steps be taken to execute a deed to said insti

tute.

"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 8, 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 learned by plaintiffs that said Winona Technical Institute was insolvent, and plaintiffs, being in doubt as to whether said conditions as to said $154,000 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 assigns 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 pointed 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 No. 16, said Winona Technical Institute had, out of funds received by way of donations and by loans negotiated by said institute, invested $62,000 in permanent improvements on said lands in the way of buildings, steam engines, boilers, pumps, air compressors, electric generators, large motors, 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 for 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.

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 collectable 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 of 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 had 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 $45.000, 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 receiver's certificates to the amount of $20,000, 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, bearing 6 per cent. interest, which are still outstanding and unpaid.

"On the 13th day of December, 1910, and while this cause was yet pending in the Marion superior court, said Charles A. Bookwalter, reap-ceiver 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 in 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 had 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 receiver's certificates to the amount of $10,000, bearing interest at the rate of 6 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 receiver's certificates issued April 4, 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 receiver's 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.

"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 has 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 manufacturers' associations, and were for a period of years to be paid in

"Said receiver has ever since his appointment been in possession of said schools 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. 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.

And