                                                                       FILED
                                                                   Mar 06 2020, 9:03 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                              ATTORNEY FOR APPELLEES
David L. Jones                                       James D. Johnson
David E. Gray                                        Jackson Kelly PLLC
Craig R. Emig                                        Evansville, Indiana
Jones • Wallace, LLC
Evansville, Indiana
John G. Wetherill
Wetherill Law Office
Rockport, Indiana
Gerald R. Thom
Jasper, Indiana



                                            IN THE

    COURT OF APPEALS OF INDIANA

William H. Deal,                                          March 6, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-TR-2210
                                                          Appeal from the Spencer Circuit
        v.                                                Court
                                                          The Hon. Mark R. McConnell,
                                                          Special Judge
Brenda Sue Gittings and Marc
Richmond Gittings,                                        Trial Court Cause No.
                                                          74C01-1305-TR-27
Appellees-Respondents.




Bradford, Chief Judge.



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


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

      Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020          Page 3 of 18
        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


Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020             Page 4 of 18
        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




Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020           Page 5 of 18
        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


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

Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020         Page 7 of 18
              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.



      Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020                               Page 8 of 18
      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


      Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020             Page 9 of 18
              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

      Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020           Page 10 of 18
      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


      Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020                     Page 11 of 18
       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.



       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020                                  Page 12 of 18
       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.”



       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020                                   Page 13 of 18
               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



       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020          Page 14 of 18
       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


       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020             Page 15 of 18
                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).



       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020                                   Page 16 of 18
       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.



       Court of Appeals of Indiana | Opinion 19A-TR-2210| March 6, 2020             Page 17 of 18
[19]   The judgment of the trial court is affirmed.

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




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