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, andMARYLYN FAYVOGELE and

## -GHdSk&4Ru RAYVOGELE Personally and in their capacity as Personal Representatives of the ESTATE OF ELSIEMAY SCHOCK, Defendants andAppellants.

APPEAL FROM: DistrictCourt of the Seventh JudicialDistrict, Inand for the County of Dawson, TheHonorable R. C. McDonough,Judgepresiding.

COUNSEL OF RECORD:
ForAppellant: 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

ClerkMr. 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 favorofplaintiff JohnVogele. We affirm. The Estatepresents two issues for our review: 1. Did the District Court err in finding that the ownership interest createdby the certificates of depositwas
a joint tenancy? 2. Did the District Court abuse its discretion in grantingVogele's motion for summary judgment? On December 22, 1982,the FirstNationalBank and Trust of Wibaux, Montana, issued two certificates of deposit

(C.D.s) to ElsieMay Schock and her children,John J. Vogele, Jr.

## ,Carla Ray Vogele

## ,and Marylyn FayVogele. One C.D. had

a cash value of $32,050 and the other $22,853. The C.D.s matured in June of 1985. EachC.D. stateson 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 survivorsor survivoras the absolute owner

# ... [Emphasisadded.] 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 ofher 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 thatmay be remaining at the time ofmy death.Elsie Schock died onApril 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 innewC.D.s in the name of the Estate. The interest was deposited into the Estate's regularaccount. 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 tenancywas created at the time of thewritten 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 costsof $67.40.

Issue 1. JointTenancy 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-thatthe 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 summaryjudgment in favor of the surviving joint tenant. This Court affirmed, holding that the joint savings accounts became individualproperty 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 survivorsby right of survivorship. We find that the establishmentof 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 severalaffidavits. The Estate attempts to support its position with Anderson v. Baker

(19821,196Mont. 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,ashere,adepositorduring - his or her lifetime raises the issue of 

### -- ownership of funds in a joint tenancy account,the statementson the signature card are not conclusive and additional evidence may be examined to ascertain the true intentof theparties. (Emphasisadded.) Anderson, 196 Mont. at 500, 641 P.2d at 1038. We distinguish Anderson from the present case. Andersondealtwith 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 awill does not take effect until the death of the testator and is therefore revokable. Something more substantial than a disinheritanceclause 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 theWill. " The Estate also presented several third-party affidavits, which stated that Elsie did not want John to share in any ofher property. However,we need not address theprobative 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 thereforedid not intend to create a joint tenancy. Estate's claim fails. The C.D.s were not accompanied by signature cards. The C.D. formshad 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 anyaffirmative 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 thatElsie's true intentremains in issue and, therefore, summary judgment was inappropriate. On review,wewill 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 amatter 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 onAppeal.'' Accordingly,we findno factualdispute. When the movant has met this initial burden, theparty 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: