No. 13417 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

GLORIA LOIS CARLSON BOATMAN, 

Plaintiff and Appellant, 

-vsHOWARD BERG, 

Defendant and Respondent. 

Appeal from: District Court of the Seventeenth Zudicial 

District, 

Honorable Thomas Dignan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morrison and Ettien, Havre, Pilontana 

J. Chan Ettien argued., Havre, Montana 

For Respondent: 

McKeon and McKeon, Malta, Montana 

John C. McKeon argued, Malta, Montana 

Submitted: January 31, 1978 

Filed: qf-'r( " 2 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court: 

Plaintiff instituted this action in the District Court, 

Phillips County, seeking a declaration that defendant is a 

constructive trustee over certain property transferred from 

plaintiff to defendant. From a judgment of the District Court 

denying such relief and quieting title to the property in 

defendant, plaintiff appeals. 

Plaintiff is Gloria Lois Carlson Boatman. Defendant is her 

older brother, Howard Berg. In 1953, when plaintiff was sixteen 

years of age, she married Clyde Carlson, a farmer and rancher. 

Plaintiff did not work during the marriage, but remained at home 

and cared for their four children. Clyde Carlson died in 1959. 

Plaintiff retained Stephen Granat, a Malta attorney, to 

handle Carlson's estate. The estate was debt ridden and consisted 

almost entirely of real property. Plaintiff acted as administratrix and in that capacity leased the real property in the 

estate to Morrell Tribby, her brother-in-law. The lease originally 

was for a three year term, but was modified by plaintiff to cover 

only the year 1960. Plaintiff testified defendant warned her 

that Tribby was trying to cheat her out of her property, but defendant denied making such statements. Also in her capacity as 

administratrix and on the advice of neighbors, plaintiff had 

several calves which were property of the estate branded with her 

brand and sold. She used the proceeds of the sale partially to 

make a payment on the land, and partially for her own personal 

purposes. She testified she became frightened when her attorney 

informed her this action amounted to embezzlement of estate property. 
For this reason she asked defendant to help her with the 

administration of the estate. 

Defendant agreed to help. He moved onto the property and 

began farming it. He paid his own expenses but did not pay rent. 

Over a period of about five years, plaintiff assigned her interest 

in four separate tracts of land to defendant. These four tracts 

are subject of the instant action for a constructive trust. 

1. The "Mahlum" tract. 

Plaintiff and Carlson had purchased about 160 acres of 

land from Mabel Mahlum as joint tenants on a contract for deed 

dated April 22, 1957. This property is referred to as the Mahlum 

tract. The contract provided for payments in the amount of onefourth of the gross crop, with a minimum of $300 payable in crop 

or cash. Also, 5% interest was charged. 

On June 2, 1961, plaintiff, defendant and Mabel Mahlum met 

in the office of attorney Granat and executed an assignment of 

the contract from plaintiff to defendant. Plaintiff admits that 

her signature is on the assignment, but does not remember such a 

meeting and disclaims any knowledge of the legal effect of the 

assignment. 

At the time he drafted the assignment, attorney Granat 

verified with the escrow that there remained due $5,500 of the 

$6,000 principal, and $275 back interest. The instrument states 

the assignment is for nominal consideration. It is not contested 

that subsequent to the assignment defendant paid the back interest, 

the remaining principal, and received the deed to the property. 

Defendant introduced evidence of additional consideration 

for the assignment. The year 1961 was a drought year on the land 
and defendant, who had farmed the land at his own expense, 

received a federal crop insurance payment of $832.72. Defendant 

paid this amount into the estate. The District Court found this 

payment, along with the payment of back interest when the contract 

was in default, constituted sufficient consideration for the 

assignment. 

2. The State Lease 

At his death in 1959, Carlson held a state lease covering 

about 320 acres of land. This lease expired in 1961, and defendant 

renewed it in plaintiff's name. In 1963, plaintiff executed an 

assignment of the lease to defendant. Again, she admits her 

signature but does not remember signing it. Defendant testified 

that both parties agreed to the assignment, and it was in consideration for defendant's help with the estate. The periodic payments 

were thereafter made by defendant. 

The lease expired in 1971, and defendant took out the new 

lease in his own name. There is no evidence plaintiff made any 

effort to acquire the 1971 lease. 

The District Court took judicial notice of the regulations 

of the Commission of State Lands and Environment prohibiting the 

subleasing of state land for profit. The court found that since 

the lease assigned to defendant had expired, this question is moot. 

We agree and decline to consider the "state lease" issue further. 

3. The "Rueb tract 

Prior to his death, Carlson purchased about 320 acres of 

property on a contract for deed from Reinhold and Alice Rueb. This 

property is referred to as the "~ueb" tract. When Carlson died, 

plaintiff became the owner of a one-third interest with the children 

owning the other two-thirds interest. Plaintiff expressed to attorney 
Granat the desire to sell the property to defendant, but was 

told that she could only dispose of her own one-third interest. 

In January 1965, defendant had a quitclaim deed prepared for the 

purpose , , of conveying plaintiff's one-third interest to him. 

Plaintiff had remarried by this time and was living in Indiana. 

Defendant mailed the deed to her along with a cover letter requesting her to sign the deed and return it. The letter stated, 

in pertinent part: 

"9: * * I am enclosing a deed for you to sign if its 

agreeable with you. 

"I talked to a guy from the Federal Land Bank 

last fall, and he said the only way I possibly could 

borrow the money is to get a deed, so this is where 

1'm starting -- If I can get the money. 

"I will pay off Rinhold and Alice the $3000.00 for 

the 113 interest that is in your name. This would give 

me 113 interest and 213 interest for the kids. I will 

pay the back interest and keep up the taxes for the use 

of there share for 3 crop years, after that I will give 

them 114 of the crop split between them, on there 2/3 

share -- less 213 of the taxes. * * * 

"The main reason I would like to get it payed off is 

that actually Rinhold and Alice could step in and repossess 

it and the kids would end up with nothing. * * *" 

On March 1, 1965, plaintiff signed the quitclaim deed in 

Indiana and returned it to defendant. 

The original contract price for the "~ueb" tract was $5,500. 

At the time of the transfer in 1965, there was a $3,120 remaining 

balance on the principal. The contract was in default and back 

interest and taxes were owing. Subsequent to the quitclaim deed, 

which amounted to a transfer of a 113 interest in the property, 

defendant paid off the entire remaining balance, including the 

back taxes and interest. 

The District Court found : 
"9~ * >There has been no showing that the price paid 

by the defendant at the time of the purchase of said 

113 interest in the '~ueb' tract was less than the 

market value for said 113 interest at the time of the 

purchase and as such,must be considered as fair and 

adequate consideration for the '~ueb' tract .I1 

4. The "Great Northern1' tract 

This property consists of about 17.5 acres adjoining the 

Great Northern Railway. It was owned by Carlson at his death. 

Plaintiff quitclaimed her 113 interest in this property to defendant 

August 10, 1966. 

Defendant testified the consideration for this transfer was 

the cancellation of a preexisting debt of $500. Defendant advanced 

the money for a Buick automobile for plaintiff and Carlson and was 

never repaid. Plaintiff admitted defendant paid for the automobile 

and had not been repaid, but she denied there was ever any bargain 

regarding cancellation of the debt for the transfer of the "Great 

Northern" property. Defendant again does not recall signing the 

quitclaim deed. 

The District Court held the cancellation of the indebtedness 

was fair and adequate consideration for the quitclaim deed. 

The theory of plaintiff's case is that a constructive trust 

should be imposed on all of the above described property for her 

benefit. The imposition of a constructive trust is governed by 

section 86-210, R.C.M.1947: 

'IInvoluntary trust resulting from fraud, etc. 

One who gains a thing by fraud, accident, mistake, 

undue influence, the violation of 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 otherwise 

have had it." 
It is well established in Montana that "in order to recover 

upon the theory of a resulting or constructive trust, the proof 

must be clear, satisfactory, convincing and practically free from 

doubt." Rdbuck v. Dennis, (1967), 149 Mont. 247, 251, 425 P.2d 

327. Also see: Barrett v. Zenisek, (1957), 132 Mont. 229, 237, 238, 

315 P.2d 1001. 

The District Court, in its finding No. 8, stated: 

"Plaintiff has not offered any clear, satisfactory 

and convincing evidence of 'fraud, accident, mistake, 

undue influence, violation of a trust, or other wrongful 

act' by the defendant in the acquisition of these four 

tracts * * *.'I 

However, plaintiff contends the District Court erred in failing 

to make a finding on the issue of whether a confidential relationship existed between plaintiff and defendant. It is argued such a 

finding is necessary because one who voluntarily assumes a relation 

of personal trust and confidence is considered to be a trustee. 

Section 86-205, R.C.M. 1947. Further, if defendant was a trustee, 

he was bound to act in the highest good faith in dealing with the 

trust property, and all transactions between defendant and his 

beneficiary that benefit him are presumed to be entered into under 

undue influence and without consideration. Sections 86-301,86-308, 

R.C.M. 1947. 

We do not agree a finding on this issue was necessary because 

there is insufficient proof that defendant violated even the high 

standards imposed upon a trustee. The existence of a confidential 

relationship between a grantor and grantee is insufficient, in and 

of itself, to support the imposition of a constructive trust. 

Mahaffey v. DeLeeuw, (1975), 168 Mont. 274, 280, 542 P.2d 103. 

Clearly, some wrongful act must still be shown. In Roecher v. Story, 

(1931), 91 Mont. 28, 45, 5 P.2d 205, the Court stated: 
"* * * If the evidence which is introduced to prove a 

fiduciary relationship at the same time shows that the 

actions of the trustee were done in good faith and for 

the benefit of the cestuique trust,there is no room for 

a presumption of wrongdoing on the part of the trustee." 

Here, the record fails to show defendant improperly used his 

influence or took advantage of any trust relationship. All of the 

transactions were handled through plaintiff's attorney. There is 

no proof of any broken promise on the part of defendant to reconvey 

any of the property. plaintiff's claim throughout is simply that 

she signed the various instruments without knowledge of their 

contents or legal effect. 

In the case of the "Rueb" property, however, there was evidence 

plaintiff expressed a desire to sell the property to defendant 

prior to the assignment. The letter defendant sent to plaintiff 

accompanying the deed clearly explains: "This would give me 113 

interest and 2/3 interest for the kids." The "Mahlum" assignment 

was executed at a meeting of all the parties to the transaction and 

plaintiff's attorney. With respect to these transactions, attorney 

Granat testified, on examination by the court: 

"THE COURT: And as to Mrs. Boatman here, when she 

came into your office did she discuss with you papers 

that you had drawn for her or would she just sign them 

outright? A. Like every other client, I would try to 

explain what the documents were, Your Honor. 

"THE COURT: Did she understand them? A. To the best 

of my knowledge, yes. 

"THE COURT: Did or would you say that the Defendant 

was being trusted by the Plaintiff in this case, that 

she trusted him? A. Far as I can recall these conversations were -- well matters were discussed and we 

tried to the best of our ability to make both parties 

understand what they were getting into and what the 

result of the transactions would be. I was with them, 

and trying to explain what the legal consequences would 

be of these transactions that these two parties were 

getting into, Your Honor." 
Considering all of the circumstances, we find no showing 

defendant breached even the duties of a trustee or committed any 

other wrongful act in the inducement of these transactions. 

We further conclude the evidence supports the court's finding 

that there was consideration for the transfers. The contracts on 

both the "Mahlum" tract and the "Rueb" tract were clearly in default when they were assigned to defendant. While the evidence is 

conflicting regarding the amount of plaintiff's equity in the 

"~ahlum" property, it was at most $1,000, and there is ample evidence to support the District Court finding that it was $500. 

For this defendant paid more than $800 in federal crop insurance 

payments into the estate, of which plaintiff was clearly a 

beneficiary. Additionally, he paid defendant's debt to Mahlum 

of $275 in back taxes and interest. For a 1/3 interest in the 

''~ueb" tract, defendant paid the entire remaining principal of 

$3,120. Not only was this more than adequate for a 113 interest, 

but plaintiff also had a strong interest in protecting the property 

rights of her children, which could have been lost had the default 

not been cured by defendant's payment. Nor is it disputed that 

the cancellation of a $500 debt was more than adequate for the 

transfer of a 113 interest in the "Great Northern" tract. Plaintiff merely argues there was no such agreement. Defendant testified 

such an agreement did take place, and this Court will not review 

determinations of weight and credibility of testimony of witnesses 

made by the trial judge as a trier of fact. Kartes v. Kartes, 

(1977), Mont . , 573 P.2d 191, 195, 34 St.Rep. 1576; 

Miller v. Fox, (1977), Mont . , 571 P.2d 804,807, 34 St. 

(1973) , Rep. 1367; Hellickson v. Barrett Mobile Home Transport, Inc.,/l61 

Mont. 455, 459, 507 P.2d 523. 
In summary, this Court will sustain the findings of fact of the 

trial court unless there is a decided preponderance of evidence 

against them. Earrett v. Zenisek, supra. Here the findings of 

fact are clearly supported by the evidence. Nor are the conclusions 

of law inadequate. There was no need for a specific finding on 

the issue of the existence of a confidential or fiduciary relationship, because there was insufficient proof of wrongdoing on the part of 

defendant even if he is considered to be a voluntary trustee. 

The judgment of the District Court is affirmed. 

We Concur: 

- - 

Chief Justice