Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020 Page 1 of 18

ATTORNEYS FOR APPELLANT

David L. Jones

David E. Gray

Craig R. Emig

Jones • Wallace, LLC

Evansville, Indiana

John G. Wetherill

Wetherill Law Office

Rockport, Indiana

Gerald R. Thom

Jasper, Indiana

ATTORNEY FOR APPELLEES

James D. Johnson

Jackson Kelly PLLC

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

William H. Deal,

Appellant-Petitioner,

v.

Brenda Sue Gittings and Marc 

Richmond Gittings,

Appellees-Respondents. 

March 6, 2020

Court of Appeals Case No.

19A-TR-2210

Appeal from the Spencer Circuit

Court

The Hon. Mark R. McConnell, 

Special Judge

Trial Court Cause No. 

74C01-1305-TR-27

Bradford, Chief Judge.
Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020 Page 2 of 18

Case Summary

[1] Nile and Georgia Richmond were married in 1985. Nile’s daughter from a 

previous marriage is Brenda Gittings, and Georgia’s son from a previous 

marriage is William Deal. While alive, Nile and Georgia executed a series of 

trusts that, inter alia, provided that upon their deaths, interests in certain real 

estate acquired by Nile during his life would be divided, with one-third going to 

Brenda, one-third going to William, and the remining one-third divided equally 

between Nile and Georgia’s grandchildren. 

[2] Nile passed in 1995, and the assets from his inter vivos trust passed into another 

trust, of which Brenda, William, and Georgia were co-trustees. Soon after 

Nile’s passing, Georgia reformed her trust agreements and transferred title to 

the real estate (“the Transfers”) such that Brenda and the grandchildren were no 

longer to receive any interest in it upon her death, which occurred in 1997. The 

Transfers were made without court approval and without disclosing all of the 

material facts to Brenda. 

[3] In around 2010, after the real estate began producing significant amounts of 

income through coal and gas leases, Brenda began asserting an interest in it. In 

2013, William petitioned the trial court to approve the Transfers. After a bench 

trial, the trial court approved the Transfers, but, in 2018, the Indiana Supreme 

Court held that William was not, in fact, entitled to court approval of them and 

remanded the matter to the trial court for further proceedings. In September of 

2019, the trial court declared the Transfers void ab initio and ordered a 

constructive trust to facilitate the transfer of the real estate and income received 
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since the Transfers to Brenda and the other original beneficiaries. William 

appeals, arguing that the trial court clearly erred in declaring the Transfers void 

ab initio and in ordering the creation of a constructive trust. Because we 

disagree, we affirm. 

Facts and Procedural History

[4] Nile was originally from West Virginia and, during his lifetime, acquired 

hundreds of acres of real estate and mineral interests in that state. (Appellee’s 

App. Vol. II p. 10). Further underlying facts of this case were related as follows 

by the Indiana Supreme Court:

Nile and Georgia Richmond married in 1985. They had no 

children together, but each had a child from a previous marriage: 

Brenda Sue Gittings (Nile’s daughter) and William Deal 

(Georgia’s son).

A. The trust agreements.

As part of their estate planning, Nile and Georgia executed two 

trust agreements, each identified by the settlor’s name: the Nile 

D. Richmond Primary Trust Agreement (“NDR Trust 

Agreement”), with Nile as settlor; and the Georgia L. Richmond 

Primary Trust Agreement (“GLR Trust Agreement”), with 

Georgia as settlor. Each settlor, while alive, could modify his or 

her respective agreement, but when Nile and Georgia executed 

the agreements, the terms mirrored one another.

Each agreement set up a Primary Trust, a Trust A, and a Trust B. 

The NDR Trust Agreement thus established the NDR Primary 

Trust, NDR Trust A, and NDR Trust B. And the GLR Trust 

Agreement similarly established the GLR Primary Trust, GLR 

Trust A, and GLR Trust B. After executing the trust agreements, 

Nile and Georgia funded each primary trust with, among other 

assets, undivided one-half interests in land and minerals they 

owned in West Virginia and Indiana.
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The primary trusts were inter vivos trusts, holding Nile’s and 

Georgia’s primary trust estates during each of their lives. Once 

the settlor died, the assets of that primary trust estate would be 

distributed to the respective Trust A and/or Trust B.

The initial trustees were the settlor and the spouse. But if the 

settlor died first, the surviving spouse would not be the sole 

trustee of Trust A and Trust B. The trust agreements made this 

explicit: “In no event shall the surviving spouse serve as sole 

Trustee after the death of [the] Settlor.” Instead, after the 

settlor’s death, the surviving spouse, “along with William H. 

Deal and Brenda Sue Gittings, shall serve as Co-Trustees of Trust 

A and Trust B.”

Trust A—a marital-deduction trust with provisions removing 

certain discretion from the surviving spouse—was designed to 

provide for the surviving spouse’s support, maintenance, and 

health. It was to receive no less than the smaller of $100,000 or 

the balance of the settlor’s primary trust. Once the surviving 

spouse died, assets remaining in Trust A would go into Trust B.

Apart from receiving any Trust A leftovers, Trust B was set up to 

receive two other classes of assets: those transferred directly to 

Trust B by the decedent settlor’s last will, and those remaining in 

the settlor’s primary trust estate after its distribution to Trust A.

Trust B would be distributed after both the settlor’s and the 

spouse’s deaths. Each trust agreement originally instructed that 

the assets collected in its Trust B be distributed in thirds: one 

third to Brenda, one third to William, and one third divided 

equally among Nile’s and Georgia’s grandchildren.

B. The amended agreement and the property transfers.

Nile died in January 1995, leaving Georgia as the surviving 

spouse and co-trustee—with Brenda and William—of NDR 

Trust A and NDR Trust B.

About six months later, Brenda gave birth to her son, Marc. 

Concerned about whether Marc—having been born after Nile’s 

death—was part of the beneficiary class of grandchildren, Brenda 
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asked Georgia for a copy of “the trust.” At this point, although 

Brenda’s understanding was that Nile and Georgia had each 

created a separate trust, she didn’t know details about their terms; 

she had neither received a copy of the NDR Trust Agreement 

from Nile nor seen a copy of the GLR Trust Agreement. Based 

on what her father told her, Brenda thought that “[a]fter [Nile’s] 

death whatever was in his trust would go into Georgia’s for 

safekeeping.”

Soon after Brenda requested “the trust,” Georgia distributed the 

NDR Primary Trust estate to NDR Trust A and NDR Trust B, 

and amended the GLR Trust Agreement, removing Brenda and 

Marc as beneficiaries.

Georgia next sent Brenda a copy of the NDR Trust Agreement 

along with four deeds, a lease assignment, and a note asking 

Brenda to sign and return the deeds and assignment. The deeds 

and assignment referenced the GLR Trust Agreement and 

purported to convey the one-half interests in West Virginia and 

Indiana property from NDR Trust A to “Georgia L. Richmond, 

as Trustee ... under a Trust Agreement ... known as the [GLR 

Trust Agreement].” Georgia did not, however, send Brenda a 

copy of the GLR Trust Agreement, original or amended.

Seeking advice, Brenda turned to legal counsel at the office 

where she worked as a paralegal. Brenda’s counsel sent a letter 

to Georgia’s attorney, explaining that Brenda sought to 

determine “her status under her father’s Will and his Primary 

Trust Agreement,” and acknowledging that Brenda had received 

a copy of “the Trust Agreement” from Georgia. In the letter, 

Brenda’s counsel also asked Georgia’s attorney for documents 

“bearing materially upon Brenda’s interest as trustee or 

beneficiary.”

Georgia’s attorney responded with documents related to the 

NDR trust assets. He listed the assets in NDR Trust A, 

explained that “[NDR] Trust B contains the rest and remainder 

of the Primary Trust,” and set out the assets in Trust B. But he 
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did not include the GLR Trust Agreement, believing that he was 

not authorized to disclose Georgia’s information to a third party.

Although neither Brenda nor her counsel had seen the GLR 

Trust Agreement that the deeds and assignment referenced, 

Brenda signed the deeds and assignment, and her attorney sent 

them to Georgia’s counsel. Georgia and William signed similar

deeds—not the same documents that Brenda signed, but ones 

that likewise purported to transfer the West Virginia and Indiana 

property from NDR Trust A to Georgia as trustee under the 

GLR Trust Agreement.

Georgia died in March 1997. Her death triggered distribution of 

the NDR trust estate through NDR Trust B—in thirds to Brenda, 

William, and the grandchildren, including Marc. In June 1997, 

Brenda signed the final account and petition to settle and close 

NDR Trust B. This document showed that the trust estate would 

be completely depleted upon the “final distribution” of the 

“balance in trust” to Brenda, William, Marc, and the other 

grandchildren. Under that distribution—outlined in the 

accounting—Brenda and William each received almost $91,000 

and each grandchild received approximately $22,710 placed in 

individual trusts. 

Not long after Brenda signed the final account, an attorney who 

helped administer NDR Trust B and who handled the 

administration of Georgia’s estate sent Brenda a copy of the 

amended GLR Trust Agreement. When Brenda received it 

around July 14, 1997, she learned that she and Marc had been 

eliminated as beneficiaries and that everything in the GLR trust 

would go to William. As the GLR trust’s sole beneficiary, 

William received the property that the deeds—both the ones that 

Brenda signed and the ones that William and Georgia signed—

purported to transfer in 1995 from NDR Trust A to Georgia as 

trustee of the GLR Primary Trust. 

After receiving the GLR Trust Agreement and learning that she 

and Marc were not beneficiaries, Brenda was “pretty 

downtrodden for quite a while.” But she did not turn to her legal 
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counsel for advice about the GLR Trust Agreement and its 

amendments. Nor did she bring any claims at that time or object 

to the executor’s final account and petition to settle Georgia’s 

estate.

Sometime around that fall at a family gathering, Brenda’s 

husband—with Brenda there—asked William about any more 

inheritance. William responded that there wasn’t anything left 

after Georgia’s medical, nursing home, and funeral bills had been 

paid.

About thirteen years later, in 2010, the property in West Virginia 

that William received from the GLR trust began producing 

significant income—hundreds of thousands of dollars annually—

from oil and gas leases. Over the next couple of years, Brenda 

consulted with an attorney and sent William a letter, making 

claims on the property.

William found among his mother’s things the deeds that Brenda 

signed in 1995 and, after consulting with his own attorney, 

recorded them in June 2012.

C. Court proceedings.

In 2013, William petitioned the trial court to docket the NDR 

Trust Agreement and to grant him declaratory relief by 

approving the transfers of the land and mineral interests from 

NDR Trust A to Georgia as trustee under the GLR Trust 

Agreement. He also asked the court to find that Brenda knew 

about and consented to the transfers, and—based on that consent 

and the statutes of limitations—to preclude Brenda from bringing 

claims for breach of trust and for recovery of real estate.

The court allowed Marc Gittings (Brenda’s son) to intervene, and 

the Gittingses responded to William’s petition with defenses and 

counterclaims. They alleged in part that the property transfers 

violated the terms of the NDR Trust Agreement, making the 

transfers void or voidable, and that Brenda’s actions did not 

validate the transfers because Georgia and William transferred 

the property without giving Brenda all material information. 

They also asked the court to—among other things—deny 
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William court approval of the transfers, void the transfers, and 

award the Gittingses compensation for acts that led to William’s 

sole receipt of the property. 

After a bench trial,[

1

] the court issued findings of fact and 

conclusions of law and entered judgment in William’s favor. It 

determined that the property transfers were proper under the 

terms of the NDR Trust Agreement and under Indiana law. It 

also concluded that the Gittingses’ counterclaims were time 

barred. The Gittingses appealed.

A panel of the Court of Appeals affirmed judgment for William, 

concluding that the statutes of limitations bar the Gittingses’

claims. Gittings v. Deal, 84 N.E.3d 749, 761 (Ind. Ct. App. 2017).

Although the panel found the statutes-of-limitations issue 

dispositive, it nonetheless addressed the validity of the property 

transfers, out of concern about the trustees’ conduct. Id. at 758.

In doing so, it concluded that the transfers were improper under 

the NDR Trust Agreement and the Trust Code. Id. at 759–61.

The Gittingses petitioned to transfer. After hearing oral 

argument, we granted transfer—vacating the Court of Appeals 

decision, Ind. Appellate Rule 58(A)—and referred the case to 

mediation, App. R. 20. The parties participated in mediation but 

did not reach an agreement.

Gittings v. Deal, 109 N.E.3d 963, 967–70 (Ind. 2018) (footnote omitted). 

[5] The Indiana Supreme Court ultimately concluded that (1) the Gittingses’ claims 

were barred by the relevant statute of limitations to the extent that they sought 

affirmative relief but not to the extent that they sought to defeat or diminish 

William’s claim to declaratory judgment, (2) fraudulent concealment did not 

1 During the trial, which was held between August 31 and September 2, 2015, William testified that he had 

received more than $3,000,000.00 in royalties, bonuses, and rents related to the West Virginia holdings. 
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render the Gittingses’ claims for affirmative relief timely, and (3) William was 

not entitled to court approval of the transfers of the land and mineral interests 

from NDR Trust A to Georgia as trustee under the GLR Trust Agreement (“the 

Transfers”). Id. at 971. The Court determined that William was not entitled to 

court approval of the Transfers because Georgia did not seek court approval 

despite a clear conflict of interest, Georgia failed to provide all material facts 

regarding the Transfers to Brenda, and Brenda’s consent (even if it occurred) 

was no defense to liability for breach of trust in this case. Id. at 976–77. The 

Indiana Supreme Court affirmed the trial court in part, reversed in part, and 

remanded for further proceedings consistent with its opinion. Id. at 978. 

[6] On September 13, 2019, the trial court issued its order on remand, which 

provides, in full, as follows:

This matter was remanded to the trial court for proceedings 

consistent with the opinion rendered by the Indiana Supreme 

Court in Cause No. 18S-TR-231. 

This Court therefore declares that any transfer of real estate or 

any interests therein made by any trustee or co-trustee of the 

[NDR] Trust A to Georgia L. Richmond as trustee of the [GLR]

Primary Trust is void ab initio.

It is further ordered that William H. Deal shall cause a copy of 

this order to be recorded in the Office of the Recorder in any 

county in Indiana and West Virginia in which any record of the 

transfer of real estate or rights therein by any trustee or co-trustee 

of the [NDR] Trust A to Georgia L. Richmond as trustee of the 

[GLR] Primary Trust exists.

The Court further declares that the portion of such real estate that 

should have been conveyed to Brenda Sue Gittings and Marc 

Richmond Gittings and any income generated from said real 
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estate is deemed to have been held in constructive trust on behalf 

of said beneficiaries by Georgia L. Richmond or William H.

Deal. 

It is further ordered that William H. Deal is enjoined from 

directly or indirectly, disposing, encumbering or otherwise 

engaging in any transaction concerning the assets of the [NDR]

Trust A or Trust B except as expressly provided under the terms 

of said Trusts.

It is further ordered that William H. Deal provide an accounting, 

within ninety (90) days of the date of this order, of all property 

held in trust on behalf of the [NDR] Trust A and the [NDR]

Trust B including the real estate referenced above and any rights 

to future payment related thereto, as well as any income 

generated from the assets from the time of the transfer until the 

present.

It is further ordered that the property held in the [NDR] Trust A 

and the [NDR] Trust B be distributed per the terms of the Trusts 

as called for in the event of Georgia L. Richmond’s death, so as 

to restore Brenda Sue Gittings and Marc Richmond Gittings to 

the status quo, had no transfer occurred.

Appellant’s App. Vol. II pp. 24–25. 

Discussion and Decision

[7] Pursuant to the Indiana Uniform Declaratory Judgment Act (the “Act”), 

declaratory judgments have the “force and effect of a final judgment,” Ind. 

Code § 34-14-1-1, and are therefore reviewed in the same manner as other

judgments. Because the proceedings before the trial court on remand in this 

case consisted of briefings, a de novo standard of review applies. See Title Servs., 

LLC v. Womacks, 848 N.E.2d 1151, 1154 (Ind. Ct. App. 2006) (applying de novo

standard of review where trial court ruled based on a paper record). In applying 

the standard, the trial court’s order should be affirmed on any legal theory the 
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evidence of record supports. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 

2001). 

[8] The Act is remedial, and its purpose is to “settle and afford relief from 

uncertainty and insecurity with respect to rights, status, and other legal 

relations; and is to be liberally construed and administered.” Ind. Code § 34-14-

1-12. Pursuant to Indiana Code section 34-14-1-14, a trial court may make 

declarations of rights or legal relations

(1) to ascertain any class of creditors, devisee, legatees, heirs, 

next of kin, or others;

(2) to direct the executors, administrators, or trustees to do or abstain 

from doing any particular act in their fiduciary capacity; or

(3) to determine any question arising in the administration of the 

estate or trust, including questions of construction of wills and 

other writings.

(Emphasis added). Declaratory relief should furnish an adequate and complete 

remedy, effectively solve the problem involved, and provide a resolution that 

will cause a just and more expeditious and economical determination of the 

entire controversy. Ferrell v. Dunescape Beach Club Condos. Phase I, Inc., 751 

N.E.2d 702, 708 (Ind. Ct. App. 2001) (internal citations omitted). William 

appeals, arguing, as restated, that the trial court erred in granting the Gittingses 

affirmative relief and in declaring the Transfers to be void ab initio. 

I. Whether the Trial Court Improperly 

Granted the Gittingses Affirmative Relief

[9] William contends that the trial court improperly granted the Gittingses 

affirmative relief to which they were not entitled because claims for affirmative 
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relief were time-barred. Although we acknowledge that the Indiana Supreme 

Court’s decision prevented the Gittingses from obtaining affirmative relief on 

remand, this is not what occurred. “A claim is a ‘pure defense’—to which 

statutes of limitations do not apply—when it contests the opposing party’s 

claim; but if a claim is a basis for affirmative relief, then it ‘form[s] a foundation 

for a counterclaim or cross complaint,’ and is thus subject to statutes of 

limitations.” Gittings, 109 N.E.3d at 971 (quoting Robinson v. Glass, 94 Ind. 211, 

216 (1884)). 

[10] In William’s petition to docket the NDR Primary Trust, he sought to have the 

Transfers approved by the court. The Gittingses countered William’s petition

with their claim that the Transfers were contrary to law and therefore void. 

This is not a new claim for affirmative relief but a response in opposition to 

William’s, denying its merits. The fact that the trial court adopted the 

Gittingses’ counter-argument does not mean that it granted the Gittingses 

affirmative relief.2 

II. Whether the Trial Court Properly Ordered 

Equitable Relief to the Gittingses

[11] William also argues that the trial court was without authority to declare the 

Transfers void ab initio or create a constructive trust. Given the Indiana 

Supreme Court’s holding that William was not entitled to court approval of the 

2

 The Gittingses did seek some affirmative relief in the trial court, making such counter-claims as tortious 

interference with expectancy interest and conversion. The Gittingses no longer pursue these claims, 

however, conceding that they are time-barred. 
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transfers, and in light of a probate court’s equitable powers, we must again 

disagree. 

In Indiana, probate courts possess general equity powers. Powell 

v. North (1859), 3 Ind. 392. Those powers include the authority 

to supervise and control the administration of trusts. See State ex 

rel. Anderson-Madison County Hospital Development Corp. v. Superior 

Court of Madison County (1964), 245 Ind. 371, 199 N.E.2d 88; 

Messner v. DeMotte (1948), 119 Ind. App. 273, 82 N.E.2d 900, 

trans. denied; Hulet v. Crawfordsville Trust Co. (1946), 117 Ind. App. 

125, 69 N.E.2d 823; Newlin v. Newlin (1944), 114 Ind. App. 574, 

52 N.E.2d 503, trans. denied. The Indiana Trust Code does not 

pretend to limit the equity power of probate courts except as it 

specifically provides. See IND. CODE 30-4-3-30.[

3

] 

Matter of Trust of Loeb, 492 N.E.2d 40, 43 (Ind. Ct. App. 1986), trans. denied. 

[12] William points to no provision in the Indiana Trust Code—either as it existed 

in 1995 when the Transfers occurred or in its current form—that would prevent 

the trial court from using its equitable powers to declare unauthorized property

transfers void, and we are aware of none. Consequently, we review the trial 

court’s disposition for clear error:

When reviewing cases of equity, the trial court’s findings and 

judgment will be reversed only if clearly erroneous, that is, only if 

we are left with a definite and firm conviction that a mistake has 

been made. Burnett v. Heckelman, 456 N.E.2d 1094, 1097 (Ind. 

Ct. App. 1983). We look only to the evidence and inferences 

therefrom supporting the judgment, neither reweighing the 

evidence nor judging the credibility of witnesses, and will reverse 

3

 Indiana Code section 30-4-3-30 provides that “[e]xcept as otherwise provided in this article, the article shall 

not be construed to limit the general equity powers of the court over the administration of trusts.”
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only where the evidence leads to a conclusion directly opposite to 

that reached by the trial court. Indiana High School Athletic Ass’n, 

Inc. v. Schafer, 598 N.E.2d 540, 557 ([Ind. Ct. App.] 1992), trans. 

denied.

Ind. Lawrence Bank v. PSB Credit Servs., Inc., 706 N.E.2d 570, 572 (Ind. Ct. App. 

1999), trans. denied. “[T]he very first maxim with which we meet in equity is 

that it will regard that as done which in good conscience ought to be done.” 

Sourwine v. Supreme Lodge Knights of Pythias of the World, 12 Ind. App. 447, 452, 

40 N.E. 646, 647 (1895) (citation omitted). 

[13] The equities of his case, briefly stated, are that the Transfers occurred without 

the required court approval despite a clear conflict of interest and without 

disclosure to Brenda of all the material facts. As a result of the illegal Transfers, 

the Gittingses, along with any other beneficiaries, have been denied hundreds of

thousands of dollars to which they were entitled, while William has received 

hundreds of thousands of dollars to which he was not. Against this backdrop, 

we address separately whether the trial court committed clear error in declaring 

the Transfers void ab initio and in ordering the real estate and payments that 

should have gone to the Gittingses to be held in a constructive trust. 

A. Voiding the Transfers

[14] William argues that the Transfers were, at most, voidable and that the trial 

court’s determination that they were void ab initio was clearly erroneous. If 

anything, however, the Supreme Court’s disposition and relevant statutory 

language would seem to allow for no other result. In 1995, Indiana Code 

section 35-4-3-5(a) provided that “[i]f the duty of the trustee in the exercise of 
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any power conflicts with his individual interest or his interest as trustee of 

another trust, the power may be exercised only with court authorization.” (Emphasis 

added). While the statute most likely contemplates situations in which

permission is sought before the exercise of power, its language is not limited to 

those circumstances. Indiana Code section 35-4-3-5’s plain language indicates 

that the Transfers could only have taken place with court authorization, which 

did not occur then and will not occur now. While we are not entirely certain

that the trial court could have reached any other result, we can say, at the very 

least, that its declaration that the Transfers were void ab initio was not clearly 

erroneous. 

[15] It is worth noting that this result is consistent with how self-dealing is treated in 

the similar context of property transfers by an estate’s personal representative. 

In that context, there is long-standing authority indicating that self-dealing 

transfers by a personal representative are void ab initio, as opposed to merely 

voidable. See, e.g., Williamson v. Williamson, 714 N.E.2d 1270, 1273 (Ind. Ct. 

App. 1999) (“In some jurisdictions purchases of estate assets by personal 

representatives at their own sales are merely voidable. However in this 

jurisdiction, in the absence of a family settlement or agreement, such purchases 

are void.”), trans. denied. The justification for this rule was stated by the Indiana 

Supreme Court in Matter of Garwood’s Estate, 272 Ind. 519, 400 N.E.2d 758, 

(1980): 

“It matters not that there was no fraud contemplated and no 

injury done. The rule is not intended to be remedial of actual 

wrong, but preventive of the possibility of it. It is one of those 
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processes derived from the system of trusts by which a court of 

chancery turns parties away from wrong, and from the power of 

doing wrong, by making their act instantly inure in equity to 

rightful purposes. The cases are uniform in declaring that it 

matters not how innocent and bona fide and free from suggestion 

of fault the transaction may be, nor how harmless or even 

beneficial the interference of the trustee may have been, the 

trustee can never, by his own act, shake off the equity of the cestui 

que trust[

4

] to have the benefit of all that he does in the scope of 

the trust; and the cestui que trust may come into equity as of 

course; and, without the imputation of either fraud or injury, ask 

for a re-sale of the property; and whether the property was or was 

not worth more than the amount of the trustee’s bid, is never 

inquired into.” 

Id. at 528, 400 N.E.2d at 764 (quoting Potter v. Smith, 36 Ind. 239–40 (1871)). 

[16] In this case, just as in cases like Williamson and Garwood’s Estate, a trustee has 

control over property that is to be used for the benefit of another, creating 

obvious opportunities for mischief. Consequently, we find that the goal of 

preventing the possibility of fraud to be equally compelling in either case. We 

conclude that the trial court did not clearly err in declaring the Transfers to be 

void ab initio. 

B. Constructive Trust

[17] William also challenges the trial court’s order that a constructive trust be 

established. A constructive trust is more in the nature of a an equitable remedy

than an independent cause of action, Zoeller v. E. Chicago 2d Century, Inc., 904 

4 The “cestui que trust” is an alternate name for the beneficiary of a trust, literally meaning “the one for 

whom [is] the trust[.]” BLACK’S LAW DICTIONARY 277 (10th ed. 2014) (second set of brackets supplied). 
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N.E.2d 213, 221 (Ind. 2009), and “may be imposed where a person holding title 

to property is subject to an equitable duty to convey it to another on the ground 

that he or she would be unjustly enriched if permitted to retain it.” Demming v. 

Underwood, 943 N.E.2d 878, 895 (Ind. Ct. App. 2011), trans. denied. As the 

Indiana Supreme Court has stated, 

[a] constructive trust is imposed where a person holding title to 

property is subject to an equitable duty to convey it to another on 

the ground that he would be unjustly enriched if he were 

permitted to retain it. The duty to convey the property may rise 

because it was acquired through fraud, duress, undue influence 

or mistake, or through a breach of a fiduciary duty, or through 

the wrongful disposition of another’s property. The basis of the 

constructive trust is the unjust enrichment which would result if 

the person having the property were permitted to retain it.

Melloh v. Gladis, 261 Ind. 647, 656, 309 N.E.2d 433, 438–39 (1974) (citation 

omitted). 

[18] We have little trouble concluding that constructive trust is appropriate in this 

case, given that the Transfers out of the NDR Trust A were illegal and the 

Gittingses have been denied hundreds of thousands of dollars in income 

thereby. William has legal title in trust property that he must now convey to 

beneficiaries, and if William retained possession of the trust property, he might

be further unjustly enriched, the beneficiaries further damaged, or both. 

Contrary to William’s argument, a constructive trust is not affirmative relief 

granted to the Gittingses; it is a remedy to ensure that trust property is 

appropriately conveyed pursuant to the terms of the trust agreement. See 

Zoeller, 904 N.E.2d at 221. 
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[19] The judgment of the trial court is affirmed. 

Robb, J., and Altice, J., concur.