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The trust res must be sufficiently described or capable of
identification that its title can pass to the trustee upon actual
delivery of the trust corpus. In re Schnitz, 52 Bankr. 951, 955
(W.D. Mo. 1985); Newton v. Wimsatt, 791 S.W. 2d 823, 827 (Mo. Ct.
App. 1990); cf. 1 Restatement, supra sec. 76; Bogert, supra sec.
113, at 323-329. Thus, only the person who has title or interest
in property can make it the subject matter of a trust. Buhl v.
Kavanagh, 118 F.2d 315, 320 (6th Cir. 1941); Brainard v.
Commissioner, 91 F.2d 880, 881 (7th Cir. 1937), affg. 32 B.T.A.
1036 (1935).
We begin by determining whether the PLRF constituted a trust
fund. The PLRF was established for the purpose of protecting and
conserving funds for the satisfaction of the Dealerships'
obligations to purchasers under the VSC's. The Escrow Trustees
held title to the PLRF accounts in their own names as trustees.
The property to which they took title was distinctly identified
in the Administrator Agreement as comprising all amounts
deposited by a Dealership plus the accumulated investment income.
PLRF assets could inure to the benefit of a Trustee only to the
extent that: (1) They were not used to pay claims or refunds
prior to the expiration of the contracts to which they were
attributable; (2) they were not needed to maintain the
Dealership's account balance at an actuarially safe level; and
(3) they were not otherwise payable to the Dealership or its
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