MCCAFFREY v LAURSEN
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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 Montana & Bostock; William A. Douglas, Libby, Submitted on Briefs: Feb. 8, 1985 Decided: March 26, 1985 Clerk Mr. Justice John C. Court. This suit was Sheehy delivered the Opinion of the 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. attorney, was appointed conservator by On July 21., to McCaffrey, an Oregon the Oregon court. 1981, T.K. executed a deed which purported 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: trusts and involuntary trusts. involuntary trust is one Section 72-20-103, MCA. arising out voluntarily of a be created personal accepted by may express Section 72-20-1.01, MCA. by operation of An law. A voluntary trust is an obligation one Section 72-20-102, MCA. trust voluntary confidence reposed for the benefit of in and another. Intent to establish a voluntary or implied. However, clear convincing evidence establishing intent is required. and 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. governs as to the trustee. Section 72-20-108, MCA, They provide: as to "72-20-107. Voluntary trust--how created - 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. as to "72-20-108. Voluntary trust--how created - 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: a written instrument subscribed by the " (1) 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. action, is that of Laursen, the appellant in this trustee. property of T. K. Laursen. He was entrusted with the Exhibit. R previously set forth herein and signed by appellant ack-nowledges that T.K. willreceive 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 if to T.K. 's demanding its return. estate T.K. should die without These promises show appel.lantlsintent to act as trustee for his father's property. testimony concerning his document. He stated that the purpose of the transaction was estate planning. intent was Appellant's consistent with the We hold appellant met the requirements of ยง 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 requirements are met by $ 72-24-102, MCA. Once those 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:
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