NO. 91-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF 

RAYMOND W. GEORGE TRUST, 

SHIRLEY G. BRAGG, Trustee 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dan Yardley; Yardley & Yardley, ~ivingston, Montana 

John T. Jones; Moulton, Bellingham, Longo & Mather, 

Billings, Montana. 

Robert Baldwin; Goetz, Madden & Dunn, 

Bozeman, Montana. 

For Respondent: 

Joseph T. swindlehurst; Huppert & Swindlehurst, 

Livingston, Montana 

Filed: 

Submitted on Briefs: March 26, 1992 

Decided: May 12, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

Shirley Bragg, Trustee of the Raymond W. George Trust (Trustee 

Bragg) appeals from an order of the Sixth Judicial District, Park 

County. The ~istrict Court denied Trustee Braggls motion to 

withdraw her previously granted petition for declaration of right 

and authority to sell real property held in the trust to Double AA 

Corporation (Double AA) . The court further ordered that Trustee 

Bragg proceed with the sale to Double AA and enjoined her from 

permitting logging operations on the ranch property. Intervenor, 

James W. Sievers (~ievers) , and Trustee Bragg appeal. We affirm in 

part and reverse in part. 

We will address the following issues: 

I. Did the District Court err by granting Trustee Bragg the 

right and authority to sell real property held in trust? 

I. Did the District Court err by ordering Trustee Bragg to 

proceed with the sale to Double AA? 

111. Did the District Court err by enjoining Trustee Bragg 

from permitting any logging to occur on the subject property? 

In addition to the issues as stated above, there is a motion 

before the Court to take judicial notice of admissions requested 

and unanswered in previous litigation involving this trust. We 

generally will not allow a party, Sievers as intervenor in this 

case, to introduce additional evidence once a case has been brought 

for appeal. Downs v. Smyk (1979), 185 Mont. 16, 604 P.2d 307. In 

Sm~k, we refused to examine a deposition given in a proceeding 

previously decided by this Court because the deposition was 
extraneous to the record on appeal. 

Here, the admissions we are asked to consider were filed in an 

action in United States District Court by Sievers in his attempt to 

remove Bragg as Trustee. The instant case arises from a petition 

filed by Trustee Bragg in the Sixth Judicial District Court 

requesting a declaration of right and authority to proceed with 

sale of trust real property to Double AA. The requested admissions 

were not considered by the trial court in this matter and will not 

be considered on appeal, "In equity cases and in matters and 

proceedings of an equitable nature, the supreme court shall review 

all questions of fact arising upon the evidence resented in the 

record..." [emphasis supplied] 53-2-204(5), MCA. Sievers' motion 

to take judicial notice of the requested admissions is therefore 

denied. 

Raymond W. George died in April 1974. His will, probated in 

the Sixth Judicial District, Park County, created a testamentary 

trust, the corpus of which includes the real property that is the 

subject of this action. His widow, Olga George, was named as 

income beneficiary; Raymond's children were named as remaindermen; 

and Maxine George, one of Raymond's children, was named as trustee. 

Appellant, Shirley Bragg, another of Raymond's children, became 

successor trustee following Maxine George's death. Maxine ' s 

remainder interest in the trust passed at her death to Cleto 

McPherson, Maxine's husband and sole heir. 

Leo Ray George, another of Raymond's children, and Cleto 

McPherson conveyed their remainder interest in the trust, by 
separate deeds, to intervenor James W. Sievers. Sievers currently 

holds a 5/9 interest as beneficiary in the remainder of the trust. 

Trustee Bragg initiated this action after entering an 

agreement with Double AA Corporation to sell the real property held 

in the trust for $l,3OO,OOO, and other benefits. The court entered 

an order granting Trustee Bragg permission to sell the trust 

property. Thereafter, Trustee Bragg filed a motion requesting to 

withdraw her petition and to cancel the sale to Double AA. The 

District Court denied the motion and ordered that the sale proceed. 

The court further granted Double AA's motion to enjoin logging or 

any other waste from occurring on the property. Trustee Bragg and 

Sievers appeal. 

Despite Trustee Braggls initial request for court approval of 

sale of the subject ranch property, Bragg now contends that such 

sale is impermissible because it is inconsistent with the 

testator's intent and against the best interests of the 

beneficiaries. This action was filed pursuant to 972-35-301, MCA, 

which provides the court equitable jurisdiction, upon application 

of the trustee or any beneficiary, to approve discretionary acts of 

the trustee. The appellants contend that a review of Raymond 

George's will as a whole reveals that he intended to preserve the 

ranch unless sale was necessary to maintain the health and 

maintenance of his widow, Olga. 

The will, and the trust instrument incorporated therein, 

expressly provides the trustee the power and necessary authority to 

sell the real property held in trust. However, the appellants 
contend that regardless of any expressed provision granting 

specific powers to the trustee, 5 72-34-130(1), MCA, mandates that 

a trustee: 

. . . shall act in accordance with fiduciary principles 

and may not act in disregard of the purposes of-the 

trust. 

The appellants rely on various references to the trust as "real 

property", throughout the will, as demonstrating Raymond George's 

intent to maintain the corpus of the trust as real property. The 

appellants further rely on Paragraph V (the portion of the will 

which creates the trust), part b of the will which provides: 

The Trustee may, in her sole and absolute discretion, 

invade the principle of the Trust and pay so much thereof 

as may be necessary, to or for the benefit of my wife, 

for her health and maintenance, if all other sources of 

property of my wife shall be exhausted. 

The above language is argued to limit the sale of property to 

circumstances where such sale is necessary for the health and 

continued maintenance of Olga George. Because there is no such 

necessity in the instant case, it is argued that the sale is beyond 

the discretionary powers of the trustee. 

We agree with the appellants that: 

The intention of the testator should control the 

disposition and the intent shall Itbe found from all parts 

of the will.. . construed in relation to each other . . . to 

form one consistent whole." 

Estate of Evans (1985), 217 Mont. 89, 94, 704 P.2d 35, quoting In 

the Matter of the Estate of Erdahl (1981), 630 P.2d 230, 231, 38 

St-Rep. 978, 980. However, we do not agree with the conclusion 

that Trustee Bragg would be acting beyond her discretion by 

exercising her power of sale of the property. 
Paragraph V, part b, quoted above, does not limit the 

trustee's authority to sell the property. The words of limitation 

relied on by the appellants refer specifically to invasion of the 

corpus of the trust. There is no indication that Trustee Bragg 

intends to invade the corpus of the trust, her request is merely to 

change the character of the trust investment from land to cash. 

The powers exercisable by the trustee include the discretion to 

sell the ranch or any other asset held by the trust. 

Numerous provisions of the trust instrument provide clear 

support for sale of the real property. For example, section r of 

I1Powers Exercisable By Trusteen provides the trustee the power: 

To sell publicly or privately, for cash or on time, 

without an order of the court, upon such terms and 

conditions as to her shall seem best, any property, real 

or personal, included in the estate ... 

The bulk of the trust Iestate', as intended and created by Raymond 

George, is the ranch property. There is no doubt that the trustee 

was authorized to sell the ranch consistent with her fiduciary 

duties. We conclude that Trustee Bragg had the right and authority 

to sell the ranch and the District Court is affirmed on this point. 

The District Court noted, in its original order, two issues 

necessary for resolution of the action filed by Trustee Bragg; 

whether or not Trustee Bragg has the legal authority to sell the 

ranch (addressed above) and whether or not the proposed sale to 

Double AA is fair and equitable. The ~istrict Court found Double 

AA1s offer of $1,300,000, and other benefits, to be very fair and 

reasonable. This finding is supported by the evidence, is not 

clearly erroneous, and is therefore affirmed. 

6 
We turn now to whether or not the District Court erred by 

ordering Bragg to proceed with the sale to Double AA. During the 

proceedings, the District Court specifically noted in an order 

that: 

It does not appear to the court at this point that this 

action on the petition to approve sale of the trust 

property is the proper vehicle to determine the merits of 

any claim of Double AA against the trustee and other 

interested persons for specific performance, breach of 

contract, or damages. 

Later, the District Court, in an effort to avoid further 

litigation, did in fact order specific performance of the sale. 

Rule 54(c) M.R.Civ.P., allows the court to grant relief to 

which a party is entitled even if such relief was not demanded in 

the party's pleading. However, the court may not grant relief not 

specifically requested when the facts and issues necessary to 

support such relief have not been tried and proven at trial. smith 

v. Zepp (1977), 173 Mont. 358, 567 P.2d 923. Long ago we stated 

that the court could grant "any relief to which the plaintiffs are 

entitled upon the allegations of the complaint and the roof 

introduced at trial1'. [emphasis supplied], Merk v. Bowery Mining 

Co. (1904), 31 Mont. 298, 78 P. 519. 

This is neither a proceeding for specific performance nor an 

action to litigate the rights between the trust and Double AA. No 

opportunity was ever provided to the parties to present evidence 

relative to the enforcement of the agreement. The validity of the 

contract between the trust and Double AA and any rights of the 

parties resulting from the contract were not the subject of the 

litigation. The evidence presented only regarded the fairness and 

7 
reasonableness of Double AA1s offer and the agreement that the 

parties entered. Whether or not any or all of the conditions of 

that agreement have been met such that specific performance is 

appropriate is beyond the scope of both the pleading and proof 

introduced. 

Double AA contends the court's order to proceed with the sale 

to Double AA was a proper exercise of its equitable supervisory 

authority over the internal affairs of the trust. Section 72-35- 

301, MCA. However, it remains that any relief provided by the 

court must be based on evidence presented before the court. The 

equitable question of specific performance was not properly raised 

and litigated. Therefore, we conclude that the District Court's 

order to proceed with the sale was in error and the District Court 

is reversed on this point. 

The final issue for our review is whether or not the court 

erred by enjoining logging operations on the ranch. On May 29, 

1991, Double AA applied for an order restraining Trustee Bragg from 

logging trust property. The motion was granted June 5, 1991. No 

hearing has ever been held regarding the injunction. 

Section 27-19-314, MCA, provides that an injunction issued 

without a hearing is a temporary restraining order. By law, a 

temporary restraining order expires in 10 days. Section 27-19- 

316(4), MCA. The District Court in its order and accompanying 

memorandum stated that it was granting the injunction regardless of 

whether the order strictly complies with the injunction statutes. 

We conclude that the District Court acted beyond its discretion and 
contrary to the statutory mandates regarding injunctive relief. 

Therefore, we reverse the court and dissolve the injunction. 

The District Court is affirmed in part and reversed in part.