No. 12995 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THELMA MAHAFFEY, as Guardian of the 

Estates of VALARIE and VAUGHN DeLEEUIJ, 

MONTE DeLEEAbJ and BEVERLY DeLEEUW , individually and as Administratrix of 

the Estate of TIEMAN DeLEEVrd, Deceased, 

Plaintiffs and Respondents, 

-vs - 

ANNIE DeLEEUW, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding . Counsel of Record: 

For Appellant : 

Moses, Kampfe, Tolliver and Wright, Billings, Montana 

D. Frank Kampfe argued, Billings, Montana 

For Respondents : 

James J. Palmersheim argued, Billings, Montana 

Submitted: September 29, 1975 

Decided : ' 

Filed: *, 

/' 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment of the district court, 

Yellowstone County, Hon. Charles Luedke, presiding. 

The issue here is whether there was sufficient credible 

evidence to support the district court's findings of fact, conclusions of law and judgment ordering defendant to reconvey 

certain real property to her deceased son's estate and heirs at 

law. She appeals. 

Defendant takes issue with the court's finding of fact 

No. 10 and conclusions of law Nos. 2, 3, and 4, but the principal 

issue is whether'there was sufficient evidence to support the 

district court's decision. 

Defendant Annie DeLeeuw is the mother of Tieman DeLeeuw, 

deceased. Hereinafter he will be referred to as Tim. Tim married 

Thelma Jean Mahaffey in 1946, they had three children, Montey, 

and twins Vala-rie and Vaughn. The marriage ended in divorce in 

November 1966. Tim was later married for a short time to a 

woman named Ginger, which was terminated by an annulment paid for 

by Annie, his mother. On February 18, 1970 he married Beverly, 

the administratrix of his estate and one of respondents here. This 

marriage terminated with ~im's death in June 1971. 

During Thelma and ~im's marriage they developed several 

businesses and acquired both business and residential properties. 

Tim established and operated a private garbage hauling business 

for the Billings suburban area not having municipal services. Each 

year they operated a large Christmas tree business. Much of the 

financing of these businesses was through ~im's mother, Annie. 

Thelma worked in ~im's office answering the telephone and handling 

the books. From the very beginning of their business ventures they 

employed James Hoffman, a licensed public accountant, for their bookkeeping and accounting records and tax matters. 
Sometime ,in 1965 Tim and Thelma separated and in 1966 

she filed for a divorce requesting partition of all real property 

and an equitable division of all property, both real and personal 

that the parties had acquired during the marriage. Immediately 

after the divorce and partition action was filed, Annie filed a 

debt action against both of them alleging some $50,000 of preexisting 

indebtedness. Negotiations between the parties resulted in an 

agreement in November 1966, in which Annie completely released and 

discharged the obligation of Thelma. She dismissed the debt action 

with prejudice, being fully settled on the merits. 

Thelma and Tim settled their property differences by 

partitioning one of their properties, a 14 acre tract called the 

"Rims" property, with Thelma receiving the family home and 8 acres 

and Tim receiving 6 acres. Thelma alleges that she withdrew her 

partition action on all the rest of the property and quitclaimed 

the same to Tim with the understanding that it remain as security 

for their children. There is nothing in writing to this effect. 

The divorce followed with Tim making support payments in the amount 

of $160 per month for the three children. 

Plaintiffs' complaint originally requested that five 

separate parcels of land be reconveyed, but in pretrial discovery 

it was learned that the "Cabin" property and the "~eights" or 

I1 Shop" property had been settled between Tim and Annie and that 

only three properties were at issue: 

#I. Lots 5,6 and 7, B1. 39, 

Orig.. .Town, Billings "Office property" $14,536 

82. NE 114 NE 114, Sec. 29 

R. 26E "~lue Creek" 9,642 

#3. Tract 1,Cert. Survey 

1085 "Rims " 

The record clearly indicates that as to all five properties 

Annie gave either partial or complete financial assistance to Tim's 

efforts to purchase the property. As to the above three properties, 
for the purposes of this opinion we will note here that they 

were both pre and post 1966, the date of the property settlement 

heretofore referred to. 

The "Blue Creek" property involving 40 acres was purchased 

by Tim and Thelma in 1960. Although it was in Tim and ~helma's 

name, the pz~hase money of $4,000 was advanced by Annie. Tim 

was unable to pay Annie and on August 9, 1968, by deed, Tim and 

Thelma transferred the property to Annie. Since that date, she has 

paid the taxes on that property. 

The 'l~ims" consisting of 14.6 acres, was purchased in 1954. 

Although Thelma was vague on where the money came from to purchase 

this property, the record indicates that Annie sold an apartment 

house to raise the money for Tim to make this purchase. None of this 

was repaid to Annie, and Tim and Thelma transferred by warranty 

deed 5.67 acres of this property to Annie on August 9, 1968. The 

remainder of the 14.6 acres had been conveyed to Thelma by the 

property settlement of 1966. 

The third piece of property is what is referred to as the 

"Office Property". This property was purchased in 1951 by Tim 

and the record indicates that over the period of purchasing this 

property Tim became delinquent in his payments and had to call on 

his mother to help make these payments. In 1966, Tim borrowed $6,500 

from Annie with the "Office Property" as collateral and a mortgage 

pursuant to this arrangement was filed. Neither the down payment, 

any interim payments, nor interest had been paid at the time of 

~im's death, except the sum of $650. This property was conveyed 

to Annie by warranty deed on August 9, 1968. 

With this background as to the three parcels of property 

in question, we now return to the November 1, 1966, out-of-court 

settlement between Annie, Tim and Thelma and how it affected Tim 

and Annie's fiscal operations after that date. By that agreement 

Thelma was relieved of any fiscal obligations, but Tim assumed the 
obligations to his mother. Tim was required by the agreement to 

11 convey the Shop" property to Annie; to pay all the remaining 

mortgage obligations; and to pay Annie $100 per month until the 

mortgage terminated. He failed to pay either the mortgage or the 

$100 per month, resulting in cash disbursements by Annie of over 

$10,000. On November 29, 1966, Tim signed a promissory note along 

with the mortgage, and received $6,500 for the "Office" property. 

This sum never was repaid. 

Shortly thereafter in 1967, Annie paid ~im's second wife, 

Ginger, the sum of $1,300 for what appears to be a settlement in 

an annulment of the second marriage. During the two years after 

the divorce from Thelma through 1968, it appears from checks 

introduced at the trial and other records introduced that Annie 

financed Tim in amounts alleged to range from $30,000 to $50,000. 

In late 1968, an agreement was made between Tim and Annie, 

previously noted, where Tim in an effort to settle with his mother, 

conveyed over to Annie the five parcels of land. This settlement 

was handled by Attorney Charles F. Moses and his testimony indicated 

that it was a business transaction, voluntary on the part of both 

parties, with no undue influence, fraud or deceit involved by either 

party. Mr. Moses, who drew up the agreement, made no reference to 

any trust agreement or any possible reconveyance of the property. 

It was a final agreement to settle a debt situation between the 

parties and in the record we can find no proof of any force, coercion 

or undue influence on the part of Annie in this transaction. 

From that date on Annie paid all the property taxes, due 

and past due, and from that date to the time of ~im's death Annie 

continued to help Tim in his business. 

Defendant alleges the district court erred in its conclusion^ 

of law. We agree. Conclusion No. 4 found that a "resultant trust" 

was created by the conveyances with the defendant as a constructive 

trustee. 
Section 86-210, R.C.M. 1947, provides: 

11 Involuntary trust resulting from fraud, etc. 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 otherwise have had it. 11 

From the reading of section 86-210, it is obvious that 

if we are to sustain the district court by imposing a constructive 

trust on these properties, then fraud must be found. This the 

trial court failed to do and we note that neither the pleadings 

nor proof show a finding of an "accident", "mistake", "undue 

fluence", "violation of a trust, or other wrongful act" as to 

come within the provisions of section 86-210. 

In McReynolds v. McReynolds, 147 Mont. 476, 482, 414 

P.2d 531, a case involving transfers of property within a family, 

Justice Castles sa.id: 

"Just as the written statements of the defendants 

were not admissible to vary the terms of the deeds, 

neither are their oral statements. Where there is 

nothing ambiguous or uncertain in the terms of a deed 

it speaks for itself, and par01 evidence tending to show 

a prior or contemporaneous oral agreement or tacit 

understanding with respect to the terms of the conveyance 

is inadmissible. I I 

In Bodine v. Bodine, 149 Mont. 29, 39, 422 P.2d 650, 

this Court said: 

"The deed here must be construed as it is written. 

We can neither put words into the deed which are not 

there, nor can we put a construction on words contrary 

to their obvious meaning. 23 Am.Jur.2d Deeds, $161, 

pp. 209-210." 

In its findings of fact Nos. 5 and 10 and its conclusion 

of law No. 3, the court found that there existed between Annie and 

Tim, "a mutual relationship of confidence, trust and financial 

transactions unique to close, personal intra-family ties." As a 

result of this trust relationship, according to the court, Annie 

induced Tim to transfer certain properties to her. The record does 

not support either the findings or the conclusion of law. This Court 
in McReynolds is in accord with authority that a confidential 

relationship between grantor and grantee who are relatives is not 

sufficient enough to find undue influence on the part of the 

grantee. Mollendorf v. Derry, 95 Idaho 1, 501 P.2d 199; Dickey v. 

Clarke, 65 Idaho 247, 142 P.2d 597. 

Under Montana law and the facts here, we hold the district 

court erred in its findings of fact and conclusions of law that 

defendant induced her son to transfer certain properties to her 

and that a resultant trust was created making her a constructive 

trustee for said property. 

The cause is returned to the district court to comply 

with this opinion. 

P ' 2 ,I 

, * * <- 

b? .. .... L;. k. . >*- &- $. t % .. -. Chief JustYce 

Justices. 
Mr. Justice Frank I. Haswell, 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 findings 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, ~im's first wife to whom he was married for 20 

years, and from the death certificate listing acute alcoholism 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 ~im's and Annie's 

income tax returns. Hoffman testified that in 1968 Annie told him 

that the Foperty 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 recorded indebtedness of Tim 

to Annie had been completely paid and discharged. 

Beverly DeLeeuw Pulver, ~im's widow, testified she asked 

Annie why "the property was in her name, ~im'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 awed money and 

if he had it in his name then he would get a lien against him * Jc *.I1 

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. 11 

(4) The fourth finding is supported by the foregoing 

testimony of the accountant, Hoffman; his ledger and accounting 

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 testimony 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, etc. 

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 otherwise have had it." 

Whether the circumstances here are characterized as 

constructive fraud, undue influence, or violation of a trust is 

beside the point. 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, V. 1, 544.2. 

In my view, the majority here has cut off the inheritance 

a 

rights of the widow and children by making/factual determination 

contrary to that of the district court. Therefore, I dissent. 

Justice.