97-113

 No. 97-113

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

IN THE MATTER OF THE ESTATE OF:

 HARRY ALBERT BOLINGER, III, 

 Deceased. 

APPEAL FROM: District Court of the Eighteenth Judicial District,

 In and for the County of Gallatin,

 The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Charles F. Angel, Angel Law Firm, Bozeman, Montana

 For Respondent Personal Representative:

 John Frohnmayer, Bozeman, Montana

 For Respondent Children:

 Gregory O. Morgan, Bozeman, Montana

 Submitted on Briefs: May 29, 1997

 Decided: August 1, 1997

Filed:

 __________________________________________

 Clerk

Justice James C. Nelson delivered the Opinion of the Court.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (1 of 14)4/16/2007 11:35:54 AM
97-113

 This is an appeal from the December 18, 1996 Findings of Fact, Conclusions of

Law and Order of the Eighteenth Judicial District Court, Gallatin County, determining

by way of summary judgment that Decedent's will created a trust for the benefit of 

his

children; terminating the trust in favor of the children and distributing the corpus 

of the

trust to them; denying the application of Marian Bolinger (Marian) to be appointed

personal representative of Decedent's estate; and appointing Deborah Reichman

(Deborah) as personal representative. We reverse and remand for further proceedings

consistent with this opinion.

 Background

 Harry Albert Bolinger, III, (Decedent), died March 23, 1995. Decedent's estate

was initially commenced as an intestacy proceeding with Deborah being nominated by

Decedent's three adult children (the children) and subsequently being appointed as

personal representative. On July 13, 1995, however, H. A. Bolinger (Hal), father of 

Decedent, filed a petition for formal probate of will and a request to be appointed

personal representative. The November 15, 1984 will so offered for probate devised 

all

Decedent's estate to Hal, or, in the event that Hal predeceased Decedent, to Hal's 

wife

(Decedent's step-mother), Marian. Specifically, the Fifth paragraph of the will, the

language of which is at issue here, provides:

 I intentionally give all of my property and estate to my said father,

 H. A. Bolinger, in the event that he shall survive me, and in the event he

 shall not survive me, I intentionally give all of my property and estate to

 my step-mother, Marian Bolinger, in the event she shall survive me, and

 in that event, I intentionally give nothing to my three children, namely:

 Harry Albert Bolinger, IV, Wyetta Bolinger and Travis Bolinger, or to any

 children of any child who shall not survive me. I make this provision for

 the reason that I feel confident that any property which either my father or

 my step-mother, Marian Bolinger, receive from my estate will be used in

 the best interests of my said children as my said beneficiaries may

 determine in their exclusive discretion.

 The will nominated Hal as personal representative with Marian as the alternate. 

Hal subsequently renounced his right to serve as personal representative and 

suggested

the appointment of Marian, who petitioned to be appointed on November 6, 1995. 

Decedent's children objected, contending, among other things, that the will was void 

as

a matter of law because of undue influence or constructive fraud on the part of Hal, 

and,

in the alternative, that the will created a trust on behalf of the children. 

 The children moved for summary judgment. Marian filed certain deposition and

discovery responses and the court took those into consideration. The court did not 

enter

any findings or conclusions as to undue influence or constructive fraud. However,

following the receipt of additional briefs as to the construction of the Fifth 

paragraph of

the will, and, after taking into consideration (over Marian's objection) an 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (2 of 14)4/16/2007 11:35:54 AM
97-113

affidavit of

John B. Folsom, Professor of English Emeritus, Montana State University, submitted by

the children, the court ruled that the will, through the language in the Fifth 

paragraph

created an express trust in favor of Decedent's children. Because Marian would be 

the

trustee under the Fifth paragraph of the will and because of the admitted hostility 

between

her and the children, the court also ruled that the trust should be terminated and 

the trust

corpus distributed to them with Deborah continuing to act as the personal 

representative.

 On appeal from this decision, Marian raises three issues:

 1. Whether the District Court erred in its legal conclusion that the Fifth

paragraph of Decedent's will created an express trust for the benefit of Decedent's 

three

children;

 2. Whether the District Court erred in considering the affidavit of John B.

Folsom;

 3. Whether the District Court erred in its Findings of Fact Nos. 20 and 21

regarding an alleged partnership between Hal and Decedent.

 We will address Issues 1 and 2 together. We will not address Issue 3 or the

court's findings and conclusions as to that issue as Marian states in her brief on 

appeal

that Issue 3 is the subject of other proceedings and that she merely brings the 

matter to

our attention here so as to avoid any later waiver argument. 

 Standard of Review

 We review a district court's grant of a motion for summary judgment de novo and

apply the same criteria under Rule 56, M.R.Civ.P., as did the district court. 

Missoula

Rural Fire Dist. v. City of Missoula (Mont. 1997), ___ P.2d ___, ___, 54 St. Rep. 

480,

481. We review the district court's findings of fact to determine whether they are 

clearly

erroneous under the three-part test adopted in Interstate Production Credit v. DeSaye

(1991), 250 Mont. 320, 820 P.2d 1285, and we review the court's conclusions of law

simply to determine whether the court's interpretation of the law is correct, Matter 

of

Estate of Dern Family Trust (Mont. 1996), 928 P.2d 123, 127, 53 St. Rep. 1087, 1089.

 As with the judicial interpretation and construction of any instrument, the 

question

of whether any particular language in a will creates an express trust, given the

circumstances under which the trust was executed, is a question of law for the court 

to

decide. See Klawitter v. Dettmann (1994), 268 Mont. 275, 281, 886 P.2d 416, 420. 

Here, accepting the facts found by the court, we conclude, nevertheless, that the 

District

Court erred as a matter of law in its interpretation and construction of the effect 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (3 of 14)4/16/2007 11:35:54 AM
97-113

of the

language of the Fifth paragraph of Decedent's will.

 Discussion

 On the basis of the discovery responses and depositions provided as part of the

summary judgment proceedings, the District Court found that both Hal and Marian

believed that the language in the Fifth paragraph of Decedent's will created a trust

(although in a second deposition Marian contended that she was mistaken in her 

initial

impression in this regard). The court also found that Marian believed that at the 

time

Decedent's will was drafted and executed, the children were minors and that Decedent

used the language in the will to prevent his ex-wife from obtaining control over his 

estate. 

The court also agreed with Professor Folsom that, when read in its entirety, the 

Fifth

paragraph of the will expressed Decedent's intention that all of his property must 

be used

in the best interests of his children. The court found that the subject or res of 

the trust

was all of Decedent's property and that the testator's purpose in creating the trust 

was to

ensure that his assets would be used in his children's best interests. The court 

then

concluded that Decedent having thus manifested his intention, and, on the basis of 

the

criteria and authorities argued by the children, an express trust for the children's 

benefit

was created under the Fifth paragraph of Decedent's will.

 On appeal from the District Court's decision, Marian argues that proof of an

express trust requires clear and convincing evidence that the trustor intended to 

create a

trust and that devises, bequests and gifts that do not contain any restrictions on 

use or

disposition of the property involved do not create an express trust. She contends 

that the

use of "precatory" words by a testator, that is words which express only a wish or

recommendation as to the disposition of property, are not sufficient to establish an

intention to create a trust. She cites, among other cases, our decision in 

Stapleton v.

DeVries (1975), 167 Mont. 108, 535 P.2d 1267, in support of her position in this 

regard. 

Furthermore, she maintains that the trial court erred in considering the affidavit of

Professor Folsom because the question of whether given language in a will creates an

express trust is one of law, and, as such, is not a proper subject of expert opinion.

 In support of the District Court's decision, the children argue that where the

testator manifests his intention to create a trust, no particular form of words or 

conduct

is necessary, and that, providing that the trustor indicates with reasonable 

certainty the

subject, purpose and beneficiary of the trust, an express trust is created. The 

children

contend that, under the facts here and under these criteria, the language used by 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (4 of 14)4/16/2007 11:35:54 AM
97-113

Decedent

in the Fifth paragraph of his will created an express trust in their favor. They 

maintain

that a trust must be construed in a manner so as to implement the trustor's intent 

and that,

here, Decedent clearly expressed his intention that his property be used for the 

benefit

of his children. The children cite a 1894 New York case, People v. Powers (N.Y.

Sup.Ct.1894), 29 N.Y.S. 950, rev'd on other grounds, 41 N.E. 432 (N.Y. 1895), for the

proposition that a testator's expression of "confidence" that a bequest will be used 

to

benefit another is sufficient to create a trust. Finally, as to the matter of the 

Folsom

affidavit, Decedent's children maintain that the professor did not express an expert

opinion on the ultimate legal question, but, rather, his opinion went simply to "the 

factual

issue of the grammatical construction of [the Fifth paragraph]--not on whether the

language creates an express trust."

 At the outset, we note that there are differences in the statutory law in 

effect at the

time that Decedent executed his will in November 1984 and when he died in March 1995.

While the parties do not take any definitive position as to which body of statutory 

law

applies in this case as to this first issue, the District Judge cites to the law in 

effect at the

time Decedent died and which is presently in effect, 72-33-202, MCA. In this 

regard,

we note that 72-33-102, MCA, provides that after September 30, 1989, the present

"Trust Code" (Title 72, Chapters 33 through 36) applies to all trusts regardless of 

when

they were created and to all proceedings concerning trusts whenever they were

commenced unless, in the opinion of the court, application of a particular provision 

of

the Trust Code would substantially interfere with the rights of the parties and other

interested persons or with the effective conduct of the proceedings. While no such

opinion, one way or the other, explicitly appears in the trial court's decision, as

mentioned, the court did cite to the present version of the code and thus, 

implicitly,

determined that this statutory law applied.

 We also note, however, that various cases cited in the briefs and in the trial 

court's

decision predate the Legislature's 1989 adoption of the present Trust Code and that 

in

certain instances those cases tend to track the statutory language in effect at the 

time the

cases were decided instead of the present statutory law. See e.g., Wild West Motors,

Inc. v. Lingle (1986), 224 Mont. 76, 728 P.2d 412, relied upon by the children and 

the

court, which tracks the language of the pre-1989 statute, 72-20-107, MCA, as to how

a trust is created. Whether those prior decisions simply apply across the board to 

cases

decided under the present Trust Code is not addressed in the briefs; it does appear,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (5 of 14)4/16/2007 11:35:54 AM
97-113

however, that the parties and the trial court assumed that to be true. 

 We will not attempt to address these collateral matters in this opinion, 

leaving their

analysis and resolution to some future case if specifically raised, argued and 

briefed. 

Rather, in the case at bar, we will address the first issue in the context of those 

legal

principles which, we believe, have remained historically constant regardless of the

changes in the statutory law over the time period in question. In this regard, we 

also

note that under the present Trust Code, 72-33-103, MCA, provides that "[e]xcept to

the extent that the common law rules governing trusts are modified by statute, the

common law as to trusts is the law of this state."

 Taking this approach, it is clear that a trust is created only if the testator

demonstrates that he or she intends that a trust be created. This rule, followed in 

Wild

West Motors, was set forth prior to 1989 at 72-20-107, MCA:

 a voluntary trust is created, as to the trustor and beneficiary, by any words

 or acts of the trustor indicating with reasonable certainty: (1) an intention

 on the part of the trustor to create a trust; and (2) the subject, purpose and

 beneficiary of the trust.

Since 1989, under the Trust Code the law is that "[a] trust is created only if the 

trustor

properly manifests an intention to create a trust." Section 72-33-202, MCA.

 Moreover, in our case law, we continue to cite to the general rule that in the

construction of trusts it is the trustor's intent that controls and that to 

determine that intent

we look to the language of the trust agreement. Hauseman v. Koski (1993), 259 Mont.

498, 501, 857 P.2d 715, 717 (citations omitted). In that regard, our rules of 

construction

with respect to testamentary instruments are well settled:

 The words of the instrument are to receive an interpretation which will give

 some effect to every expression, rather than an interpretation which will

 render any of the expressions inoperative. The will is to be construed

 according to the intentions of the testator, so far as is possible to ascertain

 them. Words used in the instrument are to be taken in their ordinary and

 grammatical sense unless a clear intention to use them in another sense can

 be ascertained. In cases of uncertainty arising upon the face of the will, the

 testator's intention is to be ascertained from the words of the instrument,

 taking into view the circumstances under which it was made, exclusive of

 his oral declarations.

 * * * *

 'The object, therefore, of a judicial interpretation of a will is to ascertain

 the intention of the testator, according to the meaning of the words he has

 used, deduced from a consideration of the whole instrument and a

 comparison of its various parts in the light of the situation and

 circumstances which surrounded the testator when the instrument was

 framed.'

In re Strode's Estate (1946), 118 Mont. 540, 545, 167 P.2d 579, 581-82 (quoting 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (6 of 14)4/16/2007 11:35:54 AM
97-113

Blacker

v. Thatcher (1944), 145 F.2d 255, 259, 158 A.L.R. 1, cert. denied 324 U.S. 848, 65 

S.Ct. 686, 89 L.Ed. 1409). Accord In re Hume's Estate (1954), 128 Mont. 223, 226,

272 P.2d 999, 1000.

 Furthermore, "[n]o particular form of words or conduct is necessary for the

manifestation of intention to create a trust," Restatement (Second) of Trusts 24 

(1959),

and "words of trusteeship are not necessarily conclusive," George T. Bogert, 

Trusts 11

at 24 (6th ed. 1987). Nonetheless, we have held that "express trusts depend for 

their

creation upon a clear and direct expression of intent by the trustor," Eckart v. 

Hubbard

(1979), 184 Mont. 320, 325, 602 P.2d 988, 991, and that the burden of proof to 

establish

the existence of a trust is upon the party who claims it and must be founded on 

evidence

which is unmistakable, clear, satisfactory and convincing. First Natþl Bank v. Sant

(1973), 161 Mont. 376, 386, 506 P.2d 835, 841 (citing Bender v. Bender (1965), 144

Mont. 470, 397 P.2d 957, and Platts v. Platts (1959), 134 Mont. 474, 334 P.2d 722). 

See also Bogert, supra 11 at 26 ([i]t is frequently stated by courts that the 

evidence to

establish the existence of a trust must be "clear," "convincing," "explicit," and

"unequivocal"), and Eckart, 602 P.2d at 991 (evidence must be "clear, convincing, and

practically free from doubt").

 Again, for purposes of this opinion, the parties having cited to no authority 

that

would support a conclusion that the law would be different under the Trust Code, we 

will

apply these foregoing legal principles. Therefore, we now turn to the language of 

the

Fifth paragraph of Decedent's will:

 I intentionally give all of my property and estate to my said father,

 H. A. Bolinger, in the event that he shall survive me, and in the event he

 shall not survive me, I intentionally give all of my property and estate to

 my step-mother, Marian Bolinger, in the event she shall survive me, and

 in that event, I intentionally give nothing to my three children, namely:

 Harry Albert Bolinger, IV, Wyetta Bolinger and Travis Bolinger, or to any

 children of any child who shall not survive me. I make this provision for

 the reason that I feel confident that any property which either my father or

 my step-mother, Marian Bolinger, receive from my estate will be used in

 the best interests of my said children as my said beneficiaries may

 determine in their exclusive discretion.

 From this language it is clear that Decedent intended to accomplish several 

things

under this paragraph of his will. First, he "intentionally" devised outright all of 

his

property and estate to his father, and in default of that bequest, then to his stepmother,

Marian. Second, it is also clear that Decedent "intentionally" devised nothing to 

his three

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (7 of 14)4/16/2007 11:35:54 AM
97-113

children. Third, Decedent desired to make some explanation as to why he disposed of

his estate in the foregoing manner. To this end, he added to the otherwise 

unequivocal

language of the first sentence of the Fifth paragraph, a second sentence with the

explanation that he made this provision because he felt "confident" that any property

which either his father or his step-mother, Marian, received from his estate would

["will"] be used in the best interests of his said children as Hal or Marian may 

determine

in their exclusive discretion. It is the language in this second sentence which is 

at issue

and which the District Court determined created an express trust in favor of the 

children.

 The use of this latter sort of qualifying language in a will or instrument is 

referred

to as "precatory" language. As stated in Bogert, supra 19 at 41:

 Usually, if a transferor of property intends the transferee to be a

 trustee, he directs him to act in that capacity, but sometimes he merely

 expresses a wish or recommendation that the property given be used in

 whole or in part for the benefit of another. Words of this latter type are

 called "precatory" and are generally construed not to create a trust but

 instead to create at most an ethical obligation.

 . . ..

 In weighing the effect of precatory expressions the courts consider

 the entire document and the circumstances of the donor, his family, and

 other interested parties.

 The author of this treatise notes that the primary question in construing 

precatory

language is whether the testator meant merely to advise or influence the discretion 

of the

devisee, or himself control or direct the disposition intended. Bogert, supra 19 

at 42. 

Here, in Marian's favor, the author notes that "the settlor must have explicitly or

impliedly expressed an intent to impose obligations on the trustee and not merely to 

give

the donee of the property an option to use if for the benefit of another." Bogert, 

supra

 19 at 42 (emphasis added). Put another way, considering the language of the entire

instrument and the situation of the alleged settlor, his family, and the supposed

beneficiaries at the time the will was executed, "was it natural and probable that 

the

donor intended the donee to be bound by an enforceable obligation or was he to be 

free

to use his judgment and discretion?" Bogert, supra 19 at 42 (emphasis added). 

Moreover, "[w]here a donor first makes an absolute gift of property, without 

restriction

or limitation, and later inserts precatory language in a separate sentence or 

paragraph, the

courts are apt to find that there was no intent to have a trust." Bogert, supra 

19 at 43.

 We have addressed the use of such language in a prior decision relied on by

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (8 of 14)4/16/2007 11:35:54 AM
97-113

Marian. In Stapleton, 535 P.2d at 1268, the decedent's will provided as follows:

 I give, devise and bequeath to my beloved wife, Amanda DeVries,

 all the balance, residue and remainder of my property of whatever nature,

 kind or character which I may own at the time of my death to have and to

 hold as her sole and separate property. I do this with the knowledge that

 she will be fair and equitable to all of my children, the issue of myself and

 my former wife as well as the issue of herself and myself.

When Amanda died leaving all her property to her children and nothing to the 

decedent's

children by his first marriage, the latter sued claiming that a constructive trust 

was

created by decedent's will in their favor. Stapleton, 535 P.2d at 1268. Reversing 

the

trial court's summary judgment in the plaintiffs' favor, we ruled that the language 

was

clear on its face-- Amanda was given decedent's property outright and the remaining

precatory language did not create a trust for the benefit of the children by 

decedent's first

marriage. Stapleton, 535 P.2d at 1268.

 Furthermore, in Stapleton, while rejecting as of "little value" cases cited by 

the

parties and pointing out that precatory trust cases are fact driven, we relied on 

Miller v.

Walker Bank & Trust Co. (1965), 17 Utah 2d 88, 404 P.2d 675, as being factually

similar. Stapleton, 535 P.2d at 1268-69. In Miller, the precatory language at 

issue was:

 I give, devise and bequeath to my beloved wife, Nettie Knudsen Miller, all

 of my property, whether the same be real or personal or mixed, and I do

 this acknowledging all my children hereinafter named, and for the reason

 that I know that my beloved wife will care for my children from the

 remainder of my estate, if there be any, share alike . . ..

We quoted with approval the Utah court's conclusion that this precatory language did 

not

create a constructive trust, specifically emphasizing that part of the court's 

decision that

"[w]here there is a clear and unequivocal devise, the statement of the reasons for 

doing

so does not limit or restrict the testamentary gift." Stapleton, 535 P.2d at 1269. 

We

noted, further, that there was nothing in the Stapleton record to support any 

conclusion

that the decedent intended to create a trust through the precatory language used. 

Stapleton, 535 P.2d at 1269.

 Similarly, in the case at bar, the language used by Decedent clearly and

unambiguously makes an outright gift to his father, and in default of that gift, to 

his stepmother and specifically excludes his children. Then, in a separate sentence, Decedent

explains the reason for this distribution, expressing his "confidence" that the 

devisees will

use his estate for the children's "best interests" in the devisees' "exclusive 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (9 of 14)4/16/2007 11:35:54 AM
97-113

discretion." 

This language does not impose any sort of clear directive or obligation (other than,

perhaps, a moral or ethical one) on either Hal or Marian. The purported trustee is 

given

no direction as to how the supposed settlor intends his estate to be used to further 

the

"best interests" of the children and neither does Decedent provide any guidance as to

what those best interests might include. Decedent imposes no restrictions on the

purported trustee, but, rather, leaves in that person the "exclusive discretion" as 

to how

the estate will be used for the children's best interests, expressing his 

"confidence" that

will be accomplished. Decedent's statement of reasons for devising his estate to 

Hal and

Marian, neither limits nor restricts the gift to them any more than did the language 

at

issue in Stapleton and in Miller limit or restrict the bequests made in those cases. 

Stapleton, 535 P.2d at 1269. The bottom line is that, under the precatory language 

used

by Decedent, his devisees had complete discretion as to how to use the property given

them outright.

 Furthermore, as in Stapleton, the facts found by the court and relied on by the

children in the case at bar do not support the conclusion that Decedent intended 

that his

expression of confidence in his father and step-mother would create a legally 

enforceable

express trust. First, the trial court and the children focus on deposition 

testimony of

Marian that she (initially at least) and Hal believed that the will created a 

trust. How

Marian and Hal may have construed the language is not the issue, however. The real

issue is what Decedent intended when he used the language which he did. 

Unfortunately,

neither Marian's nor Hal's conclusory interpretation of the meaning of the language 

in

the Fifth paragraph of the will assists in divining Decedent's intent one way or the 

other. 

Second, while Marian believed that Decedent may have been concerned that his first 

wife

would obtain control over his estate while the children were minors, her personal 

belief

of what motivated Decedent is not evidence of what Decedent actually intended. Even

Marian's testimony on this point was equivocal and speculative:

 Bud [Decedent] was flying around a good deal in those days because of his

 being an officer in the Pinsgauer [sic] Association, and I think he got

 worried about his kids. And by that time, his father had given him the 240

 acres up south, and so he probably did not want Fae to have anything to do

 with it, is what my own personal feeling is. And he certainly made it clear. 

 [Emphasis added.]

 Third, as to Professor Folsom's affidavit, he first recites the entire Fifth 

paragraph

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (10 of 14)4/16/2007 11:35:54 AM
97-113

of Decedent's will. He then analyzes various words and phrases in the paragraph as 

parts

of speech and in the context of grammar and sentence structure. Professor Folsom 

then

reaches the conclusion that "[w]hen read in its entirety, the paragraph expresses the

intention that the property must be used in the best interest of the children." 

Regardless

of whether Professor Folsom's affidavit was admissible or not on the issue of 

Decedent's

intent, we conclude simply that, either on a stand-alone basis or in conjunction with

Marian's deposition testimony, this affidavit does not provide substantial evidence, 

much

less clear and convincing evidence, of Decedent's intent. Without belaboring the 

point,

nothing here suggests that Decedent chose his nouns, verbs and adverb prepositional

phrases with the surgical precision that Professor Folsom concludes adds up to an

expression of intention that the property "must" (Professor Folsom's word, not

Decedent's) be used in the best interest of the children. Arguably, had Decedent 

given

the sort of considered thought to his choice of words that is suggested by the 

affidavit and

had he clearly intended to create an express legal trust, it is more likely that he 

would not

have used the sort of precatory language that he did. 

 Furthermore, we note that the Third paragraph of Decedent's will makes an

unconditional, outright devise of all of Decedent's estate to Hal and that the Fourth

paragraph of the will makes an unconditional, outright devise of the same property to

Marian, should Hal die before Decedent. Also, we note that the Sixth paragraph of 

the

will appoints Hal as the personal representative with Marian as the alternate, both 

without

bond, and gives both unrestricted power to sell any or all of the estate property 

without

court order at public or private sale, with or without notice. Again, Decedent's

unequivocal, outright and unrestricted gifts to Hal and alternatively to Marian, and 

his

appointment of them as the personal representative and alternate without bond and 

without

restriction on their powers, supports the conclusion that the one precatory sentence 

in the

Fifth paragraph was advisory only and was not intended to create a legal, express 

trust

obligation.

 While the children and the trial court rely upon Wild West Motors and In Re

Marriage of Malquist (1988), 234 Mont. 419, 763 P.2d 1116, as generally describing 

the

creation of a voluntary trust, neither case is particularly helpful in resolving the 

specific

question of Decedent's intent and the construction of the language in his will at 

issue

here. In the former case the existence of a trust was admitted, Wild West Motors, 

728

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (11 of 14)4/16/2007 11:35:54 AM
97-113

P.2d at 415, and in the latter case the issue was whether certain real property was

included in an already existing trust, Malquist, 763 P.2d at 1117. 

 Furthermore, the children's and the court's citation to Powers, an 1894 New York

case, is not persuasive. The case is cited for the proposition that the testator's 

expression

of "confidence" that a bequest will be used to benefit another is sufficient to 

create a

trust. We conclude that, while such an expression may be considered as part of the

evidence of a testator's intention, in and of itself, the use of that word is not 

dispositive

of this issue. Whether a trust will be found from the use of any precatory word or

phrase, whether that be "desire," "wish," "hope," "recommend," "in confidence" or

"rely," cannot be concluded merely from the particular word or phrase used. Bogert,

supra 19 at 41-42. Importantly, and while other courts may interpret precatory

language more liberally, our case law precedent is clear and we decline to depart 

from

it on the facts here. Stapleton, 535 P.2d at 1268-69.

 In short, we conclude that, reviewing Decedent's will as a whole, taking the 

words

and phrases used by Decedent in their ordinary and grammatical sense and considering

the facts found by the District Court, there was not the sort of "unmistakable," 

"clear,"

"convincing," "explicit," "unequivocal" and "practically free from doubt" evidence 

that

would support a legal conclusion that Decedent clearly and directly expressed his

intention to create an express trust in favor of the children through his use of 

precatory

language in the Fifth paragraph of his will. Eckart, 602 P.2d at 991; First Natþl 

Bank,

506 P.2d at 841; Platts, 334 P.2d at 727; Stapleton, 535 P.2d at 1269.

 Finally, as an aside, we note that both Stapleton and Miller addressed whether 

the

precatory language at issue created a constructive trust, as opposed to the claim in 

the

case at bar that the trust created was an express trust. Express trusts depend upon

intention and implied trusts, i.e., constructive or resulting trusts, arise by 

operation of the

law. Platts, 334 P.2d at 727. See also 72-33-201, -219 and -220, MCA. With

regard to the latter trusts, intent may be presumed or implied or intent may not 

even be

an issue. Eckart, 602 P.2d at 991. Nevertheless, for purposes of this opinion, we 

do not

believe that this distinction as to the type of trust created is of particular 

importance,

where the central issue--whether the testator's intent is manifest from the language 

used

and the facts found--is the same and is governed by the same principles of law. 

 We hold that the District Court erred in its legal conclusion that the Fifth

paragraph of Decedent's will created an express trust for the benefit of Decedent's 

three

children. Accordingly, we reverse and remand for further proceedings consistent with

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (12 of 14)4/16/2007 11:35:54 AM
97-113

this opinion. 

 Reversed and remanded.

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

Justice W. William Leaphart, dissenting.

 I dissent.

 The majority, relying principally upon our decision in Stapleton v. DeVries 

(1975),

167 Mont. 108, 535 P.2d 1267, holds that the language used in the Bolinger will is 

only

precatory. In Stapleton, the will provided as follows:

 I give, devise and bequeath to my beloved wife, Amanda DeVries,

 all the balance, residue and remainder of my property of whatever nature,

 kind or character which I may own at the time of my death to have and to

 hold as her sole and separate property. I do this with the knowledge that

 she will be fair and equitable to all my children, the issue of myself and my

 former wife as well as the issue of herself and myself.

Stapleton, 535 P.2d at 1268.

 In the present case, the Bolinger will provides:

 I intentionally give all of my property and estate to my said father,

 H.A. Bolinger, in the event that he shall survive me, and in the event he

 shall not survive me, I intentionally give all of my property and estate to

 my step-mother, Marian Bolinger, in the event she shall survive me, and

 in that event, I intentionally give nothing to my three children, namely:

 Harry Albert Bolinger, IV, Wyetta Bolinger and Travis Bolinger, or to any

 children of any child who shall survive me. I make this provision for the

 reason that I feel confident that any property which either my father or my

 step-mother, Marian Bolinger, receive from my estate will be used in the

 best interests of my said children as my said beneficiaries may determine

 in their exclusive discretion.

 The language used in the Bolinger will is distinguishable from and more 

conclusive

than that used in Stapleton. In Stapleton, the decedent's will devised the property 

to the

beneficiary "to hold as her sole and separate property." Such a "sole and separate

property" provision is absent in the Bolinger will. Secondly, in Stapleton, the 

testator

made the devise knowing that the beneficiary would be fair and equitable to all his

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (13 of 14)4/16/2007 11:35:54 AM
97-113

children (i.e. children from both marriages). The beneficiary was thus under no

obligation to segregate the devised property or to treat it any differently than her 

sole

property. In contrast, Bolinger provided that "any property" received from his 

estate was

specifically tagged for use "in the best interests of [his] children." In other 

words, his

father or step-mother were not to commingle the property with their own property, nor

were they to treat it as their sole and separate property with some vague 

understanding

that they would then be fair and equitable to all concerned. Rather, Bolinger was

confident that this specific property "will be used in the best interests of my 

children." 

The language in the Bolinger will is more than precatory, it is peremptory. 

 As the court recognizes, no particular form of words is necessary for the

manifestation of an intent to create a trust, Restatement (Second) of Trusts 24, 

and

express trusts depend upon a clear and direct expression of intent by the trustor. 

Eckart

v. Hubbard (1979), 184 Mont. 320, 325, 602 P.2d 988, 991. Bolinger clearly intended

that the property passing maintain its separate identity and that his father or stepmother,

as trustees, use the property solely for the benefit of his children, who were, at 

the time

of the will, minors. 

 I would affirm the decision of the District Court. 

 /S/ W. WILLIAM LEAPHART

Justice William E. Hunt, Sr., joins in the foregoing dissent of Justice W. William

Leaphart.

 /S/ WILLIAM E. HUNT, SR.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-113%20Opinion.htm (14 of 14)4/16/2007 11:35:54 AM