concurring.
I concur in remanding “with directions to stay the judgment until the trial court has determined whether or under what conditions to impose an implied trust on the income from the farmland during Toby’s lifetime,” but I vote to direct that relief be granted unless some valid defense exists that has not been argued on this appeal. I write separately to state my view of the record and my reasons for voting to direct the imposition of an implied trust.
Four bachelor Ramsland brothers together outlived their parents on the family farm near Almont. Aging Toby Ramsland became, at 82 years, the sole survivor when his last brother, Ole Ramsland, died on July 27, 1989. Ole’s will left all of the family’s accumulated property to Toby and named Toby the personal representative to administer the estate. It was all too much for Toby, and he turned to others for help.
Until Ole’s death, Toby had kept no ownership in the family farm, nor in the home that he shared with Ole in Almont. Toby subsisted, instead, on a $9,000 annual income, combined from social security and a veterans pension of $367 per month. As his parents and the other brothers had passed on, Toby and the brothers had surrendered and transferred their inherited property to Ole, who took care of them. This arrangement had “two fundamental purposes,” according to the trial court’s findings, “to allow Ole ... to be the unofficial business manager of the Ramsland family farm,” and “to allow Toby ... to continue to receive his veterans benefits pension.” Toby had “developed and attached special significance to his military service and the veterans benefits he earned as a result thereof.” After Ole died, Toby was alone, adrift, and turned for help to a longtime neighbor, one of his many second cousins, Elvira Thiel. She tried, but it was not the same as with Ole.
On August 1,1989, Elvira and her husband took Toby to a New Salem bank, opened Ole’s safety deposit box there, and co-signed a loan with Toby so he could pay Ole’s funeral expense. They found in the box 118 gold coins that Toby later gave to Elvira, upon her suggestion to cancel the box.
On August 2, 1989, Elvira took Toby to attorney Lester Schirado’s office. Schirado prepared, and Toby signed, an application to name Toby personal representative of Ole’s estate; a will that left all of Toby’s property to Elvira; and a general durable power of attorney to Elvira with specific power to *794assist Toby in administering Ole’s estate. On September 18,1989, Toby asked Schirado to document a transfer to Elvira of a 1968 Detroiter mobile home located adjacent to Ole and Toby’s residence. Schirado prepared, Toby executed, and someone recorded an estate “deed of distribution” that transferred not only the mobile home, but also all three lots that included its location and the residence where Toby lived. Toby continued to live in the residence.
According to the trial court’s decision, Toby executed the September 18 deed “under the mistake of law that he was gifting to Elvira Thiel one 1968 Detroiter mobile home absent any associated real estate,” and the deed “failed to properly reflect the express intent of the donor and grant[or], Toby Ramsland.” The trial court set aside this September 18 deed, and Thiel did not appeal that decision. Even though the judgment does not say so, the trial court’s ruling leaves the movable mobile home in Elvira’s name, from her registration of the title certificate in her own name in 1992 before the trial.
Schirado did more legal work for Toby that, for whatever reason, primarily benefit-ted Elvira Thiel without protecting Toby. The conservator identifies a possible reason. In early 1990, Elvira’s husband died, and Schirado represented Elvira in probating her husband’s estate. Schirado billed Elvira for his work on her husband’s estate in July 1990. Although the trial court made no explicit finding on the subject, it is apparent that Schirado’s work for Toby mostly benefit-ted Elvira, not Toby. Interestingly, the trial court assessed costs and disbursements “against only the Defendant Schirado.”
On June 6,1990, Elvira took Toby to Schi-rado’s office again, where Schirado prepared two more documents that Toby signed: a renunciation of all interest in the 800 acres of Ramsland farmland, and an estate “deed of distribution” giving the 800 acres to Elvira. This deed was kept unrecorded in Schirado’s file. The trial court expressly determined:
Toby Ramsland’s motivation to make said gifts was to preserve his status as a recipient of his veteran’s benefit pension. Toby Ramsland further believed that [Elvira] Thiel would provide for Toby Ramsland for the rest of his life, much as his brother had previously.
Believing that he still controlled the farmland, Toby took the fall 1990 cash rent for the land, paid the 1990 real estate taxes in January 1991, and took the spring 1991 cash rent for the land. In the spring of 1991, Toby signed the land up with the ASCS, but thereafter Elvira Thiel had Schirado write the renters to pay her directly.
Erwin Thiel, an old friend and neighbor of Toby’s, had rented and farmed 240 acres of the Ramsland farm for fifteen years. In the fall of 1990, Erwin began to negotiate with Toby to buy those acres. Erwin testified:
We were at his office twice and talked about, that was Toby and I, and uhm, we weren’t really getting anywhere. So, one time I was in Mandan by myself and I stopped in at [Schirado’s] office and talked to him about this and then Mr. Schirado said that, he said Toby can’t sell you this land because he doesn’t own it. He said it was, it was Ole’s wishes to give it all to Elvira.
On September 24, 1990, Schirado wrote Toby:
I had checked through Ole’s estate file, and it was determined that the land which you wished to sell to Ervin was previously transferred to Elvira, to protect your Veterans’ Administration benefits. Thus, if you were to sell the land to Ervin at this time, it would appear that you would be losing your Veterans’ Administration benefits.
Yet, Schirado did not record Toby’s deed to Elvira of the 800 acres until March 11, 1991. Then, because “Toby wanted me to,” Elvira sold the 240 acres to Erwin in April 1991 by contract for deed. Elvira received a $6,000 downpayment on a $30,000 price with the balance payable over ten years at 9½% interest to her. Afterward, Toby thought, “I should have gotten the money” that Elvira received for the downpayment. Evidently, Toby came to believe that he couldn’t trust Elvira to “provide for [him] for the rest of his life, much as his brother had previously.”
Toby went to attorney Austin G. Engel, who had represented Erwin Thiel in purehas-*795mg the 240 acres. On May 9,1991, Toby had Engel prepare a new will that Toby executed. Toby’s new will gave all his property to Erwin Thiel and his wife, Nancy; granted his other farm tenant, Jake Larson, an option to purchase the remaining 560 acres of farmland at fair market value; and appointed Nancy Thiel as his personal representative.
Concerned that “Toby wasn’t, didn’t seem to be able to function and handle things or he wasn’t handling things very well,” Ronald Otto, the Morton County veteran’s service officer petitioned the Morton County Court on July 2, 1991 to appoint a conservator for Toby. Elvira Thiel, represented by Schira-do, resisted the appointment. On September 12,1991, the Morton County Court appointed William Chaussee, public administrator for Burleigh and Morton Counties, as Toby’s conservator, with limited powers designed to leave Toby free to manage his daily affairs and checking account, but to consult with Toby on decisions affecting his property and to prepare a complete inventory of his property, as well as annual accounts.
On September 24, 1991, Toby revoked the power of attorney that he had given Elvira Thiel on August 2, 1989. On November 4, 1991, the Veteran’s Administration notified Toby that it was terminating Toby’s benefits as of September 1, 1989, because “you have received an inheritance in 1989 with a total value of approximately $126,000 and that you have been receiving $10,000 per year in farm rentals since 1989.” In a follow-up notice of overpayment on November 6, 1991, the VA demanded that Toby repay $7,616 in benefits overpaid him.
Ronald Otto, his veterans service officer, testified that he “g[o]t Toby’s money back” by convincing the VA “that Toby was paying [expenses] out of his own checkbook for Ole’s last illness and burial” and “that any income that he would have received from that land before the estate was closed was estate money.” Otto testified that “I was able to help [Toby] reinstate his benefits,” at least temporarily, but that Toby “would ... be better off’ with the farmland rental income of $8,800 per year, than with the VA pension.
As conservator for Toby, Chaussee sued Elvira Thiel and Schirado on December 2, 1991, to set aside the deeds transferring the farmland and the Almont home, to pay over the lease and contract monies from the farmland to Toby, and to obtain other equitable relief on theories of fraud, undue influence, mutual mistake of law and fact, lack of consideration, and breach of fiduciary relationship. After trial, the trial court set aside the deed to the Almont residence, dated September 18, 1989, for mistake, but held that the evidence “clearly and convincingly establishes that Toby Ramsland knowingly and voluntarily sought to gift the [800 acres of farmland] of the Ole Ramsland estate to [Elvira] Thiel.”
Nevertheless, in the same paragraph, the trial court concluded that Toby’s “motivation to make said gift[ ] was to preserve his status as a recipient of his veteran’s benefit pension” under the belief that “Thiel would provide for Toby Ramsland for the rest of his life, much as his brother had previously.” Moreover, the trial court declared that “the attempted renunciation by Toby Ramsland [of his inheritance from Ole’s estate] is ineffective and is therefore, set aside in its entirety,” apparently because it was made more than nine months after Ole’s death. See NDCC 30.1-10-01. Unaccountably, the trial court confirmed the June 6, 1990 conveyance as completely “valid,” making Elvira Thiel “the owner in fee simple” of the farmland without the condition that the trial court found Toby intended, “to provide for Toby Ramsland for the rest of his life.”
Also, inconsistently, the court ordered Thiel to reimburse Toby “for any and all real estate taxes paid upon said real estate subsequent to June 6, 1990,” but ordered all rent and contract payments, held on deposit with the clerk, disbursed to Thiel, rather than used for the expressed purpose of the transfer to Thiel to benefit Toby “for the rest of his life.”
While the conservator appeals an array of questions, urging Toby’s incompetence, his mistakes of fact and law, and undue influence and constructive fraud on him by Elvira Thiel and Schirado, I agree the trial court’s decisions on those matters are largely affirm-able. Among the reasons the majority opin*796ion employs to affirm, though, is that “Toby’s actions ... were consistent with his past practice of retaining his pension by conveying away any interest he received in the farmland.” But Toby’s past reliance on his brothers to care for him, while he kept his pension, is not the same as his dependence on a more remote relative, who has neither maintained his trust nor assured the continuation of his pension.
Moreover, the conservator seeks appropriate equitable relief for Toby based on Elvira’s fiduciary relationship to Toby, one of his theories in the trial court. In my opinion, rather than confirm Elvira Thiel’s unconditional ownership of the Ramsland farm, the trial court was obliged by law to grant Toby limited equitable relief in the form of a resulting trust on all income from the farmland during his lifetime.
Limited equitable relief most closely fits the findings that the trial court made about the reason for, and purpose of, the farmland transfer that Toby gave Elvira Thiel. See NDCC 59-01-05 and 59-01-06(2) (“One who gains a thing by ... mistake, ... the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it.”). Considering the ineffectiveness of the renunciation that Schirado had Toby make, and the express directions of 38 U.S.C. § 1522 about the use of “the corpus of the estate of the veteran,” quoted in the majority opinion, Toby’s pension status is still uncertain. While the renunciation may not have been necessary to make the gift of land, it was probably important to preserve his pension.
Unable to depend on Elvira Thiel to “provide for [him] for the rest of his life, much as his brother had previously,” Toby should receive enough equitable relief to get the income from the Ramsland farm during his lifetime. With this limited relief, Elvira Thiel will have the land when Toby is gone, as he intended, but she will be made to keep her admitted promise to Toby about the gifts: “I will give you enough money.”
The principles for this relief are generally explained by the Restatement (Second) of Trusts in an Introductory Note to General Principles of Resulting Trusts, Ch. 12, Topic 1, pp. 322-26 (1959). Because the trial court did not recognize its power to grant equitable relief in the form of a resulting trust for Toby on the income from the farmland for his lifetime, I vote to remand with directions to allow that limited equitable relief unless some valid defense exists that was not presented here.