McCaffrey v. Laursen

                                  No. 84-358
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       1985



JAMES F. McCAFFREY, as Conservator
of the Estate of THORVALD K.
LAURSEN, a/k/a T,K, LAURSEN,

                       Plaintiff and Respondent,


ORVILLE A. LAURSEN, et al.,
                       Defendants and Appellants.




APPEAL FROM:    District Court of the Nineteenth Judicial District,
                In and for the County of Lincoln,
                The Honorable Robert M. Holter, Judge presiding.

COUNSEL OF RECORD:

       For Appellants:
                Sverdrup & Spencer; Lawrence H. Sverdrup,
                Libby, Montana

       For Respondent:
                Douglas   &   Bostock; William A. Douglas, Libby,
                Montana



                                   Submitted on Briefs:   Feb. 8, 1985
                                               Decided: March 26, 1985




                                   Clerk
Mr. Justice John C.        Sheehy delivered the Opinion of the
Court.


       This    suit was    commenced   by    James    F.   McCaffrey   as
conservator of the estate of Thorvald K. Laursen to recover
title to certain parcels of real property in Lincoln County,
Montana, and to obtain an accounting for income from the
property.      Thorvald K. Laursen, hereinafter T.K., is 92 years
old and his health is failing.         He now resides in Washington
County, Oregon, with his granddaughter.         McCaffrey, an Oregon
attorney, was appointed conservator by               the Oregon court.
       On July 21.,   1981, T.K. executed a deed which purported
to   convey all title and       interest in his Lincoln County
property to his son Orville A. Laursen, defendant-appellant
herein.       On the same day, a separate document, defendant's
Exhibit E,       was executed and signed by Orville A. Laursen.
The document provided:
       "The undersigned acknowledges that as of this date
       his father, T. K. LAURSEN, did by written Deed
       convey certain property to him to be held by him in
       Trust for the said T. K. Laursen (a copy of said
       Deed is attached hereto).     Undersigned covenants
       and agrees that all income from such properties
       shall belong to T. K. Laursen and that he, the
       affiant will re-convey the property to T. K.
       Laursen at anytime the said T. K. Laursen requests
       and that if the said T. K. 1,aursen should die while
       the property is still in the name of affiant such
       property shall be considered as an asset of T. K.
       Laursen's estate and be disposed of in accordance
       with T. K. Laursen's Will."
This    document was      delivered by      appellant to Shelton R.
Williams, T.K.'s attorney.
       Based on these d-ocumentsand the testimony of defendant,
the District Court ruled that defendant holds the properties
in trust for his father and by              the terms of the trust,
defendant is obligated to reconvey the property to T.K. and
to account for al.1 income from the properties.               Appellant
appeals this order and contends that there is no evidence
that a trust existed.
     Montana separates trusts into two classes:                              voluntary
trusts and involuntary trusts.                     Section 72-20-1.01, MCA.          An
involuntary          trust         is   one    created    by   operation     of     law.
Section 72-20-103, MCA.                  A voluntary trust is an obligation

arising        out       of    a    personal      confidence       reposed    in    and
voluntarily          accepted by          one    for the benefit of           another.
Section 72-20-102, MCA.                       Intent to establish a voluntary
trust    may        be    express       or     implied.        However,   clear     and
convincing evidence establishing intent is required.                               First
National Bank of Twin Bridges v. Sant (1.973), 161 Mont. 376,


     The creation of a voluntary trust as to the trustor j.s
governed       by             72-20-107, MCA.            Section   72-20-108, MCA,
governs as to the trustee.                    They provide:
     "72-20-107.   Voluntary trust--how created - -
                                                 as to
     trustor. Subiect to the ~rovisionsof 72-24-102, a
     voluntary trust is creatgd, as to the trustor and
     beneficiary, by any words or acts of the trustor
     indicating with reasona.ble certainty:
     " (1)  an intention on the part of the trustor to
     create a trust; and
        "(2)       the subject, purpose, and beneficiary of the
     trust.
     "72-20-108.   Voluntary trust--how created - -
                                                  as to
     trustee. Subject to the provisions of 72-24-102, a
     voluntary trust is created, as to the trustee, by
     any words or acts of his indicating with reasonable
     certainty:

     " (1)    his acceptance of the trust or his
     acknowledgment, made upon sufficient consideration,
     of its existence; and
     "(2) the subject, purpose, and beneficiary of the
     trust "   .
     Section 72-24-102, MCA, refers to trusts concerning real
property.       It provides:
     "No trust in relation to real property is valid
     unless created or declared by:
     " (1)   a written instrument subscribed by the
     trustee or his agent thereto authorized in writing;
     "(2)  the instrument under which the trustee claims
     the estate affected; or
     "   (3)   operation of law. "
The status of Orville A.                 Laursen, the appellant in this
action, is that of              trustee.        He was entrusted with the
property of T. K. Laursen.                 Exhibit. R previously set forth
herein and signed by appellant ack-nowledges that T.K. will-
receive all rents and profits from the properties and that
appellant promises             to    reconvey    the property    on    request.
Together with the deed referred to therein, they satisfy the
requirements of         $   72-24-102, MCA.         This instrument on its
face conclusively proves that appellant accepted the deed
from his father with the intent of holding the property for
the benefit of his father.               Appellant promised to convey the
property to T.K. on request.               He also promised to convey the
property       to    T.K. 's    estate     if    T.K.   should   die   without
demanding its return.               These promises show appel.lantlsintent
to act as trustee for his father's property.                      Appellant's
testimony      concerning his           intent was      consistent with     the
document.       He stated that the purpose of the transaction was
estate planning.         We hold appellant met the requirements of           §

72-20-1.08,MCA.
     T. K. Laursen did not sign Exhibit R , the aforementioned
document.       However, he was not required to sign the document
to meet the requirements of                $   72-24-102, MCA.    Once those
requirements are met by                the actions of the trustee, the
trustor, T.K., must by words or acts indicate with reasonable
certainty:          (1) an intention to create a trust; and ( 2 1 the
subject, purpose, and beneficiary of the trust.          Section
72-20-107, MCA.
     The fact that the document was given to T.K. ' s now
deceased attorney, Shelton Williams, for safekeeping is an
act that tends to show T.K. intended a trust to be created.
Appellant testified that he believed T.K. deeded the property
to appellant because T.K. wa.nted someone to take care of the
property and to take care of him;       that T.K. wanted to make
it more difficult for his wife to get the property in T.K.'s
upcoming divorce action; and that T.K. deeded the property to
appellant    for   estate   planning    purposes.    Appellant's
testimony taken with the circumstances of this case show with
reasonable certainty that T.K.'s       intention was to create a
trust when he deeded his property to appellant.      We hold the
District Court's finding to be factually sound and legally
correct.
    Affirmed.




We Concur: