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 & Bostock; William A. Douglas, Libby, 

Montana 

Submitted on Briefs: Feb. 8, 1985 

Decided: March 26, 1985 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This suit was 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. McCaffrey, an Oregon 

attorney, was appointed conservator by the Oregon court. 

On July 21., 1981, T.K. executed a deed which purported 

to 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-ocuments and 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: voluntary 

trusts and involuntary trusts. Section 72-20-1.01, MCA. An 

involuntary trust is one created by operation of law. 

Section 72-20-103, MCA. A voluntary trust is an obligation 

arising out of a personal confidence reposed in and 

voluntarily accepted by one for the benefit of another. 

Section 72-20-102, MCA. Intent to establish a voluntary 

trust may be express or implied. However, clear and 

convincing evidence establishing intent is required. 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. Section 72-20-108, MCA, 

governs as to the trustee. They provide: 

"72-20-107. Voluntary trust--how created - as - to 

trustor. Subiect to the ~rovisions of 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. 

"72-20-108. Voluntary trust--how created - as - to 

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: 

" (1) a written instrument subscribed by the 

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. Laursen, the appellant in this 

action, is that of trustee. He was entrusted with the 

property of T. K. Laursen. 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 to T.K. 's estate if T.K. should die without 

demanding its return. These promises show appel.lantls intent 

to act as trustee for his father's property. Appellant's 

testimony concerning his intent was consistent with the 

document. He stated that the purpose of the transaction was 

estate planning. We hold appellant met the requirements of § 

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 $ 72-24-102, MCA. Once those 

requirements are met by 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 (21 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: