No. 87-285 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JOHN J. VOGELE, JR., 

Plaintiff and Respondent, 

-vsTHE ESTATE OF ELSIE MAY SCHOCK, 

and MARYLYN FAY VOGELE and -GHdSk&4Ru 

RAY VOGELE Personally and in their 

capacity as Personal Representatives 

of the ESTATE OF ELSIE MAY SCHOCK, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ira Eakin, Billings, Montana 

Russell L. Culver, Baker, Montana 

For Respondent: 

Richard L. Burns, Glendive, Montana 

Submitted on Briefs: Sept. 3, 1987 

Decided: November 24, 1987 

Filed: Mn\:2/S198t 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Estate appeals the summary judgment of the 

District Court of the Seventh Judicial District, Dawson 

County, in favor of plaintiff John Vogele. We affirm. 

The Estate presents two issues for our review: 

1. Did the District Court err in finding that the 

ownership interest created by the certificates of deposit was 

a joint tenancy? 

2. Did the District Court abuse its discretion in 

granting Vogele's motion for summary judgment? 

On December 22, 1982, the First National Bank and Trust 

of Wibaux, Montana, issued two certificates of deposit 

(C.D.s) to Elsie May Schock and her children, John J. Vogele, 

Jr. , Carla Ray Vogele , and Marylyn Fay Vogele. One C.D. had 

a cash value of $32,050 and the other $22,853. The C.D.s 

matured in June of 1985. Each C.D. states on its face: 

If more than one depositor is named 

above, this certificate and the deposit 

evidenced hereby shall belong to said 

depositors as joint tenants with right 

- of survivorship, but the bank may deem 

and treat either or any of said depositors or the survivors or survivor as the 

absolute owner . . . [Emphasis added.] 

By April of 1983, "hard feelings" had developed between 

Vogele and his mother. On November 30, 1984, Elsie May 

Schock executed her Last Will and Testament. The third 

clause of her Will states: 

At his request, I have made full and 

final settlement with my son, JOHN JIM 

VOGELE, JR., and have paid him what 

would normally be his inheritance, and 

I, therefore, specifically exclude him 

from any share of my estate that may be 

remaining at the time of my death. 
Elsie Schock died on April 27, 1985. In June of 1985, 

the C.D.s were cashed by the personal representatives of 

Elsie's estate, Marylyn Vogele and Carla Vogele. The proceeds, less interest, were deposited in new C.D.s in the name 

of the Estate. The interest was deposited into the Estate's 

regular account. 

John filed a complaint and later moved for summary 

judgment. John contended that he was entitled to one-third 

of the proceeds of the certificates of deposit as a joint 

tenant with Marylyn Vogele and Carla Vogele, John argued 

that the joint tenancy was created at the time of the written 

instrument, and Elsie's will did not raise the issue of 

ownership of the C.D.s during her li-fetime. John concluded 

that the disinheritance clause would not apply to the C.D. 

proceeds because joint tenancy property was not part of 

Elsie's probate estate. 

On March 13, 1987, the District Court granted John's 

motion for summary judgment. On May 5, 1987, the court 

awarded John $20,983.70 plus court costs of $67.40. 

Issue 1. Joint Tenancy 

On appeal, the Estate contends that John was merely 

entitled to one-fourth of the proceeds because he was a 

tenant-in-common. The Estate claims-that the joint tenancy 

language on the C.D.s was only inserted for the benefit of 

the Bank and does not determine John's status as a joint 

tenant. 

In analyzing this issue, we look to Casagrande v. 

Donahue (1978), 178 Mont. 479, 585 P.2d 1286, where a decedent had established joint savings accounts with a friend. 

The executrix of decedent's estate tried to include the bank 

accounts in the estate and thereby defeat the survivor's 

right to the accounts. The District Court granted summary 
judgment in favor of the surviving joint tenant. This Court 

affirmed, holding that the joint savings accounts became 

individual property of the surviving joint tenant upon decedent's death. Casagrande, 178 Mont. at 484, 585 P.2d at 

The plain language of Elsie's C.D.s creates a joint 

tenancy among Elsie, John and his two sisters. The C.D.s 

specifically state that they belong to the survivors by right 

of survivorship. We find that the establishment of the joint 

accounts by Elsie created a right of survivorship in the 

C.D.s for the benefit of the joint tenants named thereon. 

The Estate further contends that Elsie intended to 

eliminate John from the proceeds of the C.D. s, as shown by 

the disinheritance clause and several affidavits. The Estate 

attempts to support its position with Anderson v. Baker 

(19821, 196 Mont. 494, 641 P.2d 1035, where the donor depositor of joint bank accounts sought the return of her funds 

prior to her death. We held: 

[Wlhere, as here, a depositor during - his 

-- or her lifetime raises the issue of 

ownership of funds in a joint tenancy 

account, the statements on the signature 

card are not conclusive and additional 

evidence may be examined to ascertain 

the true intent of the parties. (Emphasis added.) 

Anderson, 196 Mont. at 500, 641 P.2d at 1038. 

We distinguish Anderson from the present case. Anderson dealt with a living depositor making a written demand and 

filing a lawsuit to recover her C.D.s from another joint 

tenant. In the instant case, Elsie made no such attempts. 

The disinheritance clause in Elsie's will is not an affirmative act taken "during her lifetime" because a will does not 

take effect until the death of the testator and is therefore 

revokable. Something more substantial than a disinheritance 
clause must occur to bring the C.D.s within the Anderson 

exception. Furthermore, the disinheritance clause refers 

only to the probate estate. Joint tenancy property is not 

part of a probate estate. As we held in Casagrande, 178 

Mont. at 484, 585 P.2d at 1289, the joint tenant's right of 

survivorship, "which is the essential characteristic of any 

joint tenancy, cannot be defeated by the executrix of decedent's estate, in an attempt to satisfy general devises in 

the Will. " 

The Estate also presented several third-party affidavits, which stated that Elsie did not want John to share in 

any of her property. However, we need not address the probative value of the affidavits because Elsie never took any 

positive action in conformance with the affidavits. At any 

time before her death, Elsie could have asked the Bank to 

reissue the C.D.s without John's name and thereby terminate 

John's interest. Section 32-1-442, MCA. She did not. 

Elsie's conduct controls, not the third-party affidavits. 

Her lack of action never rose to a level of conduct manifesting an intention to eliminate the joint tenancy. 

Finally, the Estate claims that Elsie did not sign the 

C.D.s and therefore did not intend to create a joint tenancy. 

Estate's claim fails. The C.D.s were not accompanied by 

signature cards. The C.D. forms had neither the requirement 

nor the designated space for a signature. Elsie knowingly 

established the C.D.s with the rights of the joint tenants 

clearly set forth in the deposit agreement. 

In conclusion, we note that a joint tenancy account is 

a vehicle for the nonprobate disposition of estate assets. 

The method is quick, convenient, and inexpensive. Elsie's 

ownership interest as a joint tenant ceased upon her death, 

and the joint property immediately passed to the surviving 

joint tenants. Section 70-1-307, MCA. Absent any 
affirmative attempts by Elsie to divest or revoke Vogele's 

interest during Elsie ' s lifetime, we find that the language 

of the C.D.s conclusively establishes Elsie's intention to 

create a joint tenancy with right of survivorship. We hold 

that the District Court correctly awarded judgment to John 

Vogele, Jr. 

Issue 2. Summary Judgment 

The Estate contends that Elsie's true intent remains in 

issue and, therefore, summary judgment was inappropriate. 

On review, we will uphold the summary judgment if there 

is no genuine issue of material fact and the evidence shows 

the moving party is entitled to judgment as a matter of law. 

Sevalstad v. Glaus (Mont. 1987), 737 P.2d 1147, 1148, 44 

St.Rep. 930, 932. 

As the party moving for summary judgment, John had the 

burden of establishing the absence of any genuine issue of 

material fact. He met this burden. John did not challenge 

any of the Estate's facts. He stated in his Respondent's 

Brief: "The facts of this case are accurately set forth in 

Appellant's Brief on Appeal.'' Accordingly, we find no factual dispute. 

When the movant has met this initial burden, the party 

opposing the motion must supply evidence supporting the 

existence of a genuine issue of fact. Fleming v. Fleming 

Farms, Inc. (Mont. 1986), 717 P.2d 1103, 1106, 43 St.Rep. 

776, 779. Rule 56(c), M.R.Civ.P. We find that the evidence 

produced by the Estate is insufficient to show a factual 

dispute. 
We concur: