Sustaining the judgment of the Court below in the instant case, there is more than the proverbial “scintilla of evidence,” or, in the even more ancient idiom of the common law, more than “the shadow of a shade”.

The testimony supporting the District Court’s finding that the appellant obtained the execution of the deed in controversy “through undue influence and constructive fraud” is sufficient to dispel any suspicion that, in the language of the Gypsum case, infra, “a mistake has been committed”.

1. Statement of the Case

The appellant’s brief contains no adequate statement of the case, as required by our Rule 18(2) (c), 28 U.S.C.A. Although his brief carries the opening caption, “Statement of Case”, it contains only one sentence that deserves that designation; namely, that the action was commenced by the appellee, to cancel a deed executed by the decedent, Dan L. Harley, conveying real property in Montana to the appellant. The rest of the so- called “Statement” sets forth jurisdictional facts and then argumentatively summarizes a small portion of the evidence. Nowhere does the “Statement of Case” narrate the following proceedings below:

The case was tried to the Court without a jury. The District Court made Findings of Fact and Conclusions of Law, and gave judgment ordering the appellant to “execute and acknowledge” a grant deed conveying the real property in question to the Estate of Dan L. Harley. The Court also ordered the appellant to pay the appellee the sum of $2,-981.07, representing the net amount of rents collected by the appellant from the property in suit, including interest thereon.

From that judgment the present appeal was taken.

2. The Findings of Fact

Neither party has submitted “a clear statement of * * * facts to be discussed”, as required by our Rule 18(2) (e). The appellant has quoted, largely verbatim, some of the testimony, with no attempt at either a logical or chronological arrangement. The appellee has subdivided the testimony into that of “(A) Montana Friends of Appellant” and “(B) Appellant’s Other Witnesses”, with no attempt whatever to classify or arrange the testimony of his own witnesses, parts of which are scattered throughout the brief.

Accordingly, we will summarize the District Court’s orderly Findings of Fact, and will then assess the parties’ arguments thereon.

Dan L. Harley, hereinafter Harley, died on July 30, 1955, at the age of 77 years. For several months prior to his death he was critically ill and bed-ridden, and suffered from heart trouble, chronic chest difficulties, arteriosclerosis, general physical debility, exhaustion, and fatigue.

For several months prior to Harley’s death, the appellant acted as business agent and attorney in fact for the decedent, and in such capacity attended to the latter’s financial and business affairs.

On May 16, 1955, and for a long time prior thereto and thereafter until Harley died, the appellant bore a confidential relationship toward the decedent, who reposed trust and confidence in the appellant. During all of that time the appellant had knowledge of and accepted the trust and confidence of the decedent, and acted thereon.

On May 16, 1955, the appellant caused a grant deed to be prepared under his supervision and directions by a public stenographer. The deed conveyed from the decedent to the appellant certain real property in the city of Deer Lodge, Montana.

No consideration passed from the appellant to Harley for the execution of that deed, which execution was obtained by the appellant from the decedent “through undue influence and constructive fraud practiced by [the appellant] on the decedent”. The latter was not incompetent at the time he executed the deed; namely, May 16,1955.

It was not the intention of the decedent in executing and delivering the deed to the appellant, to make a gift of the real property to the appellant. It was Harley’s intention to vest the title to the property in the appellant only as trustee for the decedent.

The appellant has collected rents from the property involved herein since June 1, 1955, in the sum of $235 per month for each month subsequent to June 1, 1955, to and including November 1, 1956, or a total of $4,230.

The appellant has expended for necessary repairs and maintenance of the real property, and for insurance and taxes, since June 1, 1955, the sura of $1,498.93.

The appellant holds the title to the real property in question as trustee for the Estate of Dan L. Harley, deceased.

3. The Specification of Errors

In summary, the appellant specifies as error that the District Court found that:

1. The appellant obtained the execution of the deed by the decedent through undue influence and constructive fraud.

2. It was not the intention of the decedent to make a gift of the property described in the deed, but to vest the title to the realty in the appellant only as trustee for the decedent.

3. The appellant holds the title to the property as trustee for the estate of Harley.

4. The appellee is entitled to judgment against the appellant awarding the total sum of $2,931.07, and ordering the appellant to execute a grant deed conveying the property to the estate of Harley.

4. The Federal Rules of Civil Procedure, and Not State Decisions, Govern the Weight To Be Given to the Findings of the District Court.

In his opening brief, the appellant refers to not a single decision by a Federal Court, but relies upon certain cases decided by state courts of California dealing with the weight that an appellate court should give to the findings made by the trier of fact.

California decisions, however, are not controlling on that point. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., alone is applicable:

As it happens, however, California jurisprudence is in accord with the Federal rule. No useful purpose would be served by a citation of cases to this effect.

5. The Appellant Does Not Deny That He “Bore a Confidential Relationship” Toward Harley, or That the Latter “Reposed Trust and Confidence” in Him.

As we have seen, there was a confidential relationship between Harley and the appellant. That relationship is fully set forth in Finding No. 2, the only sentence of which objected to by the appellant is “That the defendant obtained the execution of said deed by the decedent through undue influence and constructive fraud practiced by [the appellant] on the decedent”.

The part of Finding No. 2 dealing with the relationship between Harley and the appellant is as follows:

The above finding describes a classical relation of trustee and beneficiary under California law. Nor does the appellant deny that a close personal and business relationship existed between the decedent and himself. On the contrary, the appellant states at the very outset of his brief:

The appellant’s testimony was to the same effect. He stated that he came to know Harley “very intimately”; that “we did business together in different ways”; that they lent each other money; that up to the time that Harley left Montana, the appellant saw him “practically every day”.

6. There Is Substantial Evidence That Harley Deeded the Montana Property to the Appellant to Keep It From Being Involved in Certain Litigation.

Joseph H. Edgar, an attorney who assisted Harley in making a will, testified that on July 16, 1955, two weeks before Harley died, he had a conversation with the appellant at Harley’s home, in the presence and within the hearing of the decedent, regarding Harley’s reason for deeding the Deer Lodge tract to the appellant.

Edgar’s testimony on this point is as follows:

It should be explained that Tessie Harley was Harley’s deceased wife.

That a desire for certain secrecy underlay the appellant’s acquisition of the deed is evident from his own testimony:

It should be explained “this trial of Benifer” evidently referred to a suit filed on or about April 1, 1955, by Mrs. Catherine Benifer and Mrs. Agnes Kelley, sisters of Harley’s deceased wife, to declare Harley “incompetent”. The suit was filed by Mrs. Benifer and Mrs. Kelley on or about April 1, 1955. Harley was declared competent.

Counsel for the appellant did not contend that Edgar had perjured himself, and he conceded that Edgar had not testified “by mistake”. Upon what other grounds can his testimony be assailed?

After hearing all the testimony, and observing the manner of the witnesses while they were on the stand, the District Judge said:

We cannot say that there is no rational basis for the District Court’s interpretation of all the evidence. We are not disposed to disturb that interpretation.

However rigid and formal may have been the creation of voluntary trusts under the common law, in California a trust may come into existence quite informally. Following are the pertinent provisions of .the Civil Code (West’s Annotated California Codes, 1954 edition):

The above provisions of the Civil Code of California read squarely upon the relationship and the dealings between Harley and the appellant.

In Re Estate of Arbuckle, 1950, 98 Cal.App.2d 562, 568-569 , 220 P.2d 950, 954 , 23 A.L.R.2d 372 , hearing by the State Supreme Court denied, the Court said:

See also, on the high standard of good faith exacted of a trustee, the magnificent statement by Mr. Justice Cardozo in Meinhard v. Salmon, 1928, 249 N.Y. 458 , 164 N.E. 545 , 62 A.L.R. 1, 5 .

7. Conclusion

The appellant quotes at considerable length from United States v. United States Gypsum Co., 1948, 333 U.S. 364, 394-395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746, which contains the following gloss on the words “clearly erroneous”, as used in Rule 52(a), supra:

A careful study of the record, read in the light of the applicable - California statutes, has left us with no such conviction.

Accordingly, the judgment is affirmed.