(dissenting):
I dissent.
In my view there is substantial evidence supporting the district court’s findings of fact; its conclusions of law based on such facts are correct; and its resulting judgment should be affirmed.
As I see it, this case turns primarily on the facts. Admittedly the evidence is conflicting. The district judge, as trier of the facts, resolved these conflicts in favor of plaintiffs. The function of the Supreme Court on appeal is to review the record and determine whether there is substantial credible evidence supporting the trial court’s findings of fact. Richardson v. Howard Motors, Inc., 163 Mont. 347, 516 P.2d 1153 and cases cited therein. In an equity case this Court must review all questions of fact and law, and must sustain the trial court’s *281findings of fact unless there is a decided preponderance of evidence against them. Barrett v. Zenisek, 132 Mont. 229, 315 P.2d 1001.
A summary of the principal findings of fact by the trial court is: (1) That a mutual relationship of trust and confidence existed between Tim and Annie.
(2)' That Tim was a heavy drinker who could not or would not assert his own judgment in the face of Annie’s arguments and remonstrances concerning his personal life and business affairs.
(3) That in August 1968, Annie induced Tim to transfer to her all real estate standing in his name by representing that it was for his own protection and led him to believe that she would reconvey it back to him at the proper time.
(4) That conveyance was made without consideration and with the understanding that Annie would reconvey the property back to Tim on request.
(5) That between the date of Tim’s third marriage in 1970 and the date of his sudden and unexpected death in 1971, Annie refused Tim’s demand for reconveyance of the property.
The evidence supporting these findings is:
(1) The first finding is undisputed.
(2) The second finding is supported by the testimony of Thelma Mahaffey, Tim’s first wife to whom he was married for 20 years, and from the death certificate listing acute acoholism as a contributing cause of death.
(3) The third finding is supported by the testimony of James A. Hoffman, the licensed public accountant who kept the books and records for Tim’s businesses, including accounts between Annie and Tim, for about 20 years and who prepared both Tim’s and Annie’s income tax returns. Hoffman testified that in 1968 Annie told him that the property transfer “was only temporary, that it was going to be transferred back to [Tim] that so far as his books reflected, there was “still a balance due from Annie to Tim of $1,967.69”; and that all preexisting re*282corded indebtedness of Tim to Annie had been completely paid and discharged.
Beverly DeLeeuw Pulver, Tim’s widow, testified she asked Annie why “the property was in her name, Tim’s property was. in her name, and she said ‘For his protection’; and I said ‘Why his protection? You know he’s a grown man’ and she-said he owed money and if he had it in his name then he would get a lien against him * *
Thelma Mahaffey, Tim’s first wife, testified to a conversation', she had with Annie during the time of Tim’s marriage to his. second wife, when Annie said “there would be no one touch his. property or ever take anything away from him because she had. it all tied up.”
(4) The fourth finding is supported by the foregoing testimony of the accountant, Hoffman; his ledger and accounting1 sheets; the property valuation testimony of William F. Stevens, the appraiser; the 1966 agreement, release and satisfaction of judgment by Annie in her debt action against both Tim and Thelma; and the corroborating testimoney of Thelma Mahaffey.
(5) The fifth finding is supported by the testimony of Thelma Mahaffey to the effect that Tim so advised her shortly before his death.
I would hold that the foregoing constitutes substantial credible evidence supporting the district court’s findings of fact.
Given these findings of fact, the district court’s conclusions, of law follow as night follows day. The pertinent statute provides :
“86-210. Involuntary trust resulting from fraud, ete. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has. some other or better right thereto, an involuntary trustee of ’ the thing gained, for the benefit of the person who would other-. wise have had it.”
Whether the circumstances here are characterized as constructive fraud, undue influence, or violation of a trust is beside the - *283point. Where, as here, a transfer is made between two persons standing in a confidential relationship without valuable consideration and induced by a promise to reconvey, equity imposes a resulting trust on the property, not because the parties agreed that the property would be held in trust, but to prevent unjust enrichment of the malefactor at the expense of the injured party. Robuck v. Dennis, 149 Mont. 247, 425 P.2d 327; Bradbury v. Nagelhus, 132 Mont. 417, 319 P.2d 503. The abuse of the confidential relationship by failure to fulfill the promise to reconvey is the substance of the wrong for which equity will impose a resulting trust. Scott on Trusts, Third Edition, Y. 1, § 44.2.
In my view, the majority here has cut off the inheritance rights of the widow and children by making a factual determination contrary to that of the district court. Therefore, I dissent.