No. 91-287 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

FRANCIS J. SEW, Personal Representative 

of the ESTATE OF GARY W. SEMAN, Deceased, 

Plaintiff and Appellant, 

-vsJUDY LEWIS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald J. Beighle argued, Deer Lodge, Montana 

John A. Alexander, Butte, Montana. 

For Respondent: 

Patrick T. Fleming argued, Butte, Montana. 

Submitted: January 2, 1992 

Decided: March 5, 1992 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Second Judicial District Court, 

Silver Bow County, Montana, in which the Honorable James E. Purcell 

granted summary judgment in favor of Judy Lewis, respondent. 

Francis Seman, personal representative of Gary Seman's estate, 

appeals. We affirm. 

The issue presented for our review is whether a bank signature 

card which designates an account as "joint" creates a joint tenancy 

with right of survivorship or a tenancy in common. 

The undisputed facts of the case at bar are as follows: 

Gary Seman died intestate. Appellant, Francis Seman, was 

appointed personal representative of Gary Seman's estate. 

Respondent, a personal friend of Gary Seman, was a co-owner and cosignatory with him on a joint savings account (the Seman/Lewis 

account). 

Approximately five years before he died, Gary Seman added 

respondent's name to his savings account. A bank representative 

completed a new signature card which controlled access to the 

account which was placed in the names of "Gary Seman or Judy 

Lewis.I1 The card indicated that the ownership of the account was 

lljoint.ll Gary Seman and respondent signed this card. 

Deposition and affidavit testimony indicate that Gary Seman 

intended respondent to have full access to the funds in this 

account. Nonetheless, respondent made no deposits in or 

withdrawals from the account prior to Gary Seman's death. Shortly 

after Gary Semanls death, respondent withdrew the balance and 

closed the Seman/Lewis account. 

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Appellant brought the initial action in district court to 

recover one-half of the amount contained in the Seman/Lewis account 

on the date of Gary Seman's death, claiming that respondent and 

Gary Seman held the account as tenants in common. Finding that the 

parties held the account as joint tenants with right of 

survivorship and that the survivor was entitled to the entire 

balance ofthe account, the District Court granted summary judgment 

in respondent's favor. 

Appellant urges reversal of the District Court pursuant to our 

decision in University of Montana v. Coe (1985), 217 Mont. 234, 704 

P. 2d 1029, contending that Gary Seman and respondent held the funds 

as tenants in common, entitling appellant to at least one-half of 

the account balance on the date of Gary Seman's death. We 

disagree. 

In w, this Court found that a signature card designating an 

account as "joint" without language of survivorship created a 

tenancy in common. In the case at bar, the District Court, faced 

with an almost identical signature card, adopted the opposite 

result finding that the joint account was a joint tenancy with 

right of survivorship. Consequently, when Gary Seman died, the 

entire balance in the account transferred to respondent. 

~ Coe is distinguishable. In w we specifically limited our 

holding to the facts of that case, thereby rendering it 

inapplicable to the case at bar. m, 217 Mont. at 240, 704 P.2d 

at 1033. 

Joint bank accounts have a special attribute which allows 

either joint owner, by virtue of a contract with the bank, to 

acquire complete control over the entire account. Casagranda v. 

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Donahue (1978), 178 Mont. 479, 483, 585 P.2d 1286, 1288. 

Nonetheless, the rules governing property ownership remain 

applicable to joint bank accounts. Casaqranda, 178 Mont. at 483, 

585 P.2d at 1288. If bank policy contradicts Montana law, Montana 

law governs. 

The ownership of personal property held by more than one 

person is either of joint interests, partnership interests, or 

interests in common. Section 70-1-306, MCA. Joint interests are 

defined as follows: 

A joint interest is one owned by several persons in equal 

shares by a title created by a single will or transfer, 

when expressly declared in the will or transfer to be a 

joint tenancy or when granted or devised to executors or 

trustees as joint tenants. 

Section 70-1-307, MCA. "An interest in common is one owned by 

several persons, not in joint ownership or partnership." Section 

70-1-313, MCA. Every interest created in favor of more than one 

person is an interest in common unless specifically declared to be 

a joint interest. Section 70-1-314, MCA. 

In the case at bar, Gary Seman and respondent selected a 

"jointv1 account by marking the appropriate box on the applicable 

signature card. Further explanation regarding the significance of 

owning a joint account failed to appear on the signature card. 

Applying Montana's statutory scheme regarding ownership of personal 

property, as set forth above, it appears that Gary Seman and 

respondent held this account as tenants in common because they 

failed to designate the account as a joint tenancy and the 

signature card lacked words of survivorship. However, the use of 

the word Itjointtt and nothing further, creates an uncertainty. 

To clarify this uncertainty we must determine the intent of 

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the account owners since intent is the determinative factor in this 

case. To create a joint tenancy with right of survivorship, the 

requirement is one of clear manifestation of intention, not of 

particular words. Hennigh v. Hennigh (1957), 131 Mont. 372, 381, 

309 P.2d 1022, 1027 (quoting cases). When third party rights are 

involved, extrinsic evidence is inadmissible if the written 

agreement is certain and clear. In such cases, the intent of the 

parties must be gleaned from the signature card alone. Ludwig v. 

Montana Bank and Trust Co. (1939), 109 Mont. 477, 98 P.2d 377. In 

Ludwiq, this Court found: 

"[Wlhere such intention is evidenced by a written 

agreement, . . . this question of intention ceases to be 

an issue, and the courts are bound by the written 

agreement. . . . [Plarol evidence is not admissible to 

change the terms of the legal effect of such a written 

instrument where it is in no respect uncertain or 

ambiguous." (citing cases.) 

Ludwiq, 109 Mont. at 502, 98 P.2d at 389, quoting Hill v. Badeljy 

(Cal. 1930), 290 P. 637, 640, (followed in e, 217 Mont. 234, 704 

P.2d 1029; Casaqranda, 178 Mont. 479, 585 P.2d 1286; and State 

Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989). 

In many prior Montana cases concerning the ownership of joint 

bank accounts, this Court found it unnecessary to look beyond the 

signature card to determine the intent of the depositors. In these 

cases, the signature cards explicitly referred to the owners of the 

accounts as joint tenants, or they explicitly stated that any money 

in the joint account was to be paid to either, both, or the 

survivor upon the other owner's death. See Casaqranda, 178 Mont. 

479, 585 P.2d 1286; Malek v. Patten (1984), 208 Mont. 237, 678 P.2d 

201; and Cole, 122 Mont. 9, 195 P.2d 989. As a result, we have 

concluded that signing a signature card containing such an 

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agreement demonstrated intent to create a joint tenancy with rights 

of survivorship since intent to create a joint tenancy was clearly 

manifested on the face of the agreement. Casaqranda, 178 Mont. at 

483, 585 P.2d at 1288. 

This case is different. The signature card in the case at bar 

provided a method for Gary Seman and respondent to choose the type 

of account they desired. They chose a gljointgl account. In 

addition, the signature card reflects that the account was held in 

the names of "Gary Seman Judy Lewis." The signature card did 

not evidence a clear intention to create a joint tenancy. The 

instant case is identical to Coe without the use of extrinsic 

evidence. 

Extrinsic evidence is only inadmissible if terms in the 

written agreement are uncertain and the extrinsic evidence is being 

presented to contradict the terms of the written agreement. Coe, 

217 Mont. at 238, 704 P.2d at 1032. In m, extrinsic evidence was 

not allowed because its only possible purpose was to contradict the 

express terms of the agreement. The express terms of that 

agreement stated that Mark Coe was an owner of the account with his 

sister, Tammerly. To prevent a judgment creditor from levying on 

the funds in the account, the Coes tried to submit extrinsic 

evidence to prove that Mark did not own any of the funds in the 

account. Clearly, this evidence was intended to contradict the 

plain meaning of the agreement and therefore, inadmissible. 

Accordingly, the only proper evidence before the Court regarding 

intent of the parties was the signature card. Since the signature 

card did not clearly indicate an intent to create a joint tenancy, 

this Court concluded that Mark and Tammerly owned the account as 

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tenants in common, allowing the judgment creditor to levy on Mark's 

half of the account. 

- Coe is distinguishable; extrinsic evidence regarding intent 

was admissible in the instant case because respondent submitted it 

to supplement, rather than contradict, the uncertain terms of the 

signature card. Respondent did not offer this evidence to refute 

ownership in the account. Deposition and affidavit testimony of 

respondent, bank personnel, and the bank vice president was offered 

to indicate Gary Seman's desire to have the funds in the 

Seman/Lewis account revert to respondent upon his death. This 

evidence merely explains Gary Seman's intent regarding the type of 

ownership he desired when acquiring this joint account. 

As neither party has presented any disputed issues of material 

fact and the District Court correctly distinguished Coe from the 

case at bar, the court did not err in granting summary judgment in 

favor of respondent. 

AFFIRMED. 

We concur: 
Justice Terry N. Trieweiler specially concurring. 

I concur with the opinion of the majority. 

I disagree with the conclusion of the dissenters that 

5 70-1-306, MCA, requires use of the word "tenancy" in order to 

create a joint ownership in property with rights of survivorship. 

My interpretation of 5 70-1-306, MCA, is that joint forms of 

ownership must be designated as joint ownership, as opposed to some 

other form of ownership. That is exactly what the signature card 

signed by Gary Seman and Judy Lewis did. I am satisfied that the 

legislature intended nothing so literal as suggested by the 

dissenters in this case. 

However, neither am I in accord with everything that is said 

in the majority opinion. 

I believe that the result arrived at by the majority is 

required by our earlier decision in First Westside National Bank v. Llera 

(1978), 176 Mont. 481, 580 P.2d 100. In that case, we addressed 

the form of ownership for an automobile where the certificate of 

ownership indicated that the owners were "Edith S. Tynes and/or 

Allen R. Llera." There was no language indicating that the 

automobile was owned in "joint tenancy." However, we held that: 

[I]t has come to be widely accepted, particularly in the 

consumer goods industry, that ownership documents which 

carry the names of two or more persons with the phrase 

"and/or" does in fact create a joint tenancy estate. 

Moreover, this Court held in Marshall v. Minlschmidt (1966), 

148 Mont. 263, 269, 419 P.2d 486, that the names of three 

owners shown on a recorded cattle brand, joined by the 

word llor,lg was in fact a joint tenancy interest in the 

brand, and therefore of the cattle bearing such brand. 

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Following Marshall, therefore, we may assume that in 

Montana an ownership document showing title in two or 

more persons lland/or" has the effect of creating a joint 

tenancy estate with right of survivorship. This applies 

to personal property, not real estate. See: ?j 67-310 

R.C.M. (1947). 

First Westside National Bank, 580 P. 2d at 103. 

In this case, the signature card indicated that the owners of 

the account were "Gary Seman or Judy Lewis." In addition, the 

owners made a conscious indication on that card that ownership of 

the account was "joint." The owners did more than was required in 

the First Westside National Bank case to establish ownership of this 

account in the form of a joint tenancy. 

An apparently inconsistent result was arrived at in the case 

of University of Montana v. Coe (1985), 217 Mont. 234, 704 ~.2d 1029. 

However, nowhere in the majority opinion of the Coe decision is First 

Westside National Bank discussed, overruled, or modified. The only 

reference to it is in Justice Weber's dissent where he discusses 

both the Marshall and First Westside National Bank cases and then concludes 

as follows: 

The foregoing cases have not been overruled. 

Based on the foregoing authority, I conclude that we 

must class the present bank account as a joint tenancy 

bank account, with each of the two account holders having 

all the rights of joint tenants with right of 

survivorship. 

COe, 704 P.2d at 1036-37 (Weber, J., dissenting). 

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I agree. I would follow the First Westside NationaI Bank case, and 

to the extent that the Coe case is inconsistent, I would overrule 

that decision. 

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Justice Karla M. Gray, dissenting. 

I respectfully dissent from the opinion of the majority. I 

agree with the majority that Gary Seman and Judy Lewis intended to 

create a joint tenancy in the account. It is my opinion, however, 

that an appropriate analysis of this case requires the application 

of statutory requirements rather than rules of contract 

interpretation. 

Section 70-1-307, MCA, is clear: no joint interest exists 

unless the ownership by several people in equal shares is 

ltextxesslv declared in the . . . transfer to be a joint tenancy." 

(Emphasis added.) The majority correctly concludes that, the 

statutory requirements not having been met, Gary and Judy "appear" 

to have been tenants in common. In my view, the majority should 

have held at that point that the District Court erred in granting 

summary judgment to the respondent. The statutory requirement that 

a joint interest must be expressly declared in the creating 

instrument to be a joint tenancy could not be more clear. Absent 

such an express declaration, no joint tenancy can exist. 

Inexplicably, the majority verges off on rules of contract 

interpretation. Finding an ltuncertaintylg on the face of the 

signature card, it decides it must determine the intent of the 

account owners and goes on to discuss the admissibility of 

extrinsic evidence in vintage contract interpretation terms. The 

result is to ignore the legislature's clearly stated intent as to 

what is necessary to create a joint interest, as a matter of law, 

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and to elevate the intent of the parties to an agreement over 

specific statutory requirements. I cannot agree. 

Chief Justice J.A. Turnage and Justice Fred J. Weber join in the 

foregoing dissent of Justice Karla M. Gray. 

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