Xo. 84-417 

IN THE SUPIQEME COURT OF THE STATE OF MONTANA 

1985 

UNIVERSITY OF MONTANA, 

Plaintiff and Respondent, 

MARK COE, TAMERLY D. COE and 

JORDON COE, 

Defendants and Appellants. 

PEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry Wallace argued, Missoula, Montana 

For Respondent : 

Morales & Volinkaty; Julio K. Morales argued, Missoula, 

Montana 

Submitted: May 2, 1985 

Decided: August 5, 1985 

Filed: Rut; .' 1985 

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

Court. 

This is an appeal from the judgment of the District 

Court of the Fourth Judicial District of the State of 

Montana, County of Missoula, the Honorable John S. Henson 

presiding. This case involves an execution on a bank account 

to recover student loans under the National Direct Student 

Loan Program. 

The appellant, Mark D. Coe, a former Montana University 

student, took out a series of student loans under the 

National Direct Student Loan Program, amounting to $6,437.30. 

For these loans he was required to sign, through the 

University, a promissory note pursuant to the National Direct 

Student Loan Program of the United States. He defaulted on 

the loans and when later requested, made only one payment of 

$20. The University, respondent herein, brought suit and 

obtained a partial summary judgment in the sum of $6,437.30. 

Through one of several executions, the University 

levied against the joint savings account of Mark Coe at the 

First Bank-Western Montana, Missoula. The savings account 

was in the name of "Tammerly or Mark D. Coe" which at the 

time of execution had a balance of $3,179.23. Tammerly Coe 

requested the Bank not to release the funds, claiming that 

the funds did not belong to Mark Coe, but rather belonged to 

her and to Jordan Coe, brother to Tammerly and Mark. 

Pursuant to agreement of counsel, and a stipulation fi1 ed , 

plus to avoid the cost of an interpleader by the bank, the 

funds were deposited with the District Court. A second 

stipulation was filed to allow intervention by Tammerly Coe 

and Jordon Coe. 
Tammerly Coe and her brother, Jordan contend that they 

deposited the money in the bank and that their brother, Mark, 

deposited no funds whatsoever. However, one of the exhibits 

presented to the District Court was a copy of the signature 

card of the account which listed the names of Tammerly Coe or 

Mark D.. Coe, along with their addresses, which stated that 

Mark was "the owner of a joint savings account with his 

sister." Jordan Coe did not sign this account, nor does his 

name appear on the signature card though he claims he owns 

$2,000 of the funds in the account. Jordan alleges he gave 

that amount to Tammerly for safe keeping on his behalf. 

Tammerly claims the remainder of the funds, less the $2,000 

deposited by her brother Jordan, belong to her and that Mark 

Coe, as previously noted, never made a deposit. 

One basic issue and three sub-issues are presented for 

our consideration. Listed as the basic issue is: 

(1) Whether the court erred in declaring all the funds 

in a joint checking account are subject to execution on a 

judgment against one joint tenant. 

Listed as the three sub-issues are the following: 

(2) What portion of a joint checking account, if any, 

is subject to execution on a judgment against one who has 

signed a signature card? 

(3) Was intent of the co-tenants of a joint checking 

account a factor in determining a creditor's right to execute 

a judgment against one co-tenant? 

(4) What, if any, interests of co-tenants in a joint 

checking account are subject to protection? 

As noted in the respondent's brief this case is one of 

first impression addressing the question of whether a joint 

bank account is subject to execution on a judgment against 
only one joint depositor, and if so, to what extent. The 

District Court after having examined statutory case law in 

Montana and elsewhere, as well as the equitable arguments 

raised, concluded that under the present fact the entire 

account was subject to execution. 

The appellants argue that the District Court erred for 

two reasons. The first reason was that the sole issue that 

the court was to decide, as set forth in the stipulation, was 

who owned the money in the account. Based upon that 

determination, the court was to decide what amount was 

subject to execution. Appellants allege the affidavit was 

not supposed to address the issue of intent, as counsel had 

stipulated. They further allege that the only issue, the 

only burden that these depositors had, was to show who owned 

the money in the account. Tarnrnerly and Jordan submitted an 

affidavit that set forth whose money was in the account, 

which the University failed to refute. 

The second reason was that appellants were never given 

an opportunity to argue the issue of intent. The court 

looked to the argument outside the stipulation of counsel, 

which appellants contend constituted error. They claim, 

under the circumstances of this case, the issue of the 

judgment creditor's rights to funds in the joint account 

never hinged on the issue of intent. 

We find that the first two issues are the controlling 

issues in this case. These two issues can be properly 

restated whether this is a joint tenancy account with right 

of survivorship, or whether it is a tenancy in common. Both 

the appellants and the respondent rely on previous case law 

in Montana that addresses issues involving joint bank 

accounts regarding rights of inheritance and inheritance 
taxes. Malek v. Patten (Mont. 1984), 678 P.2d 201, 41 

St.Rep. 305; Anderson v. Baker (Mont. 1982), 641 P.2d 1035, 

39 St-Rep. 273; In the Matter of Sinclair (Mont. 1982), 640 

P.2d 918, 39 St.Rep. 331; Casagranda v. Donahue (1978), 178 

Mont. 479, 585 P.2d 1286; Patterson v. Halterman (1973), 161 

Mont. 278, 505 P.2d 905; State Board of Equalization v. Cole 

(1948), 122 Mont. 9, 195 P.2d 989; In Re Sullivan's Estate 

(1941), 112 Mont. 519, 118 P.2d 383. 

Appellants direct our attention to cases outside this 

jurisdiction, claiming this particular set of circumstances 

has not previously been answered by Montana case law. Purma 

v. Stark (Kan. 1978), 585 P.2d 991; Walnut Valley State Bank 

v. Stova11 (Kan. 1978), 574 P.2d 1382; Yakima Adjustment 

Services v. Durand (Wash.App. 1981), 622 P.2d 408. 

Appellants argue these out of state jurisdictional cases 

state the majority rule. We find that the Montana rule set 

forth in our case law as to joint tenancy and tenancy in 

common, represents a more reliable manner of determining 

questions concerning the ownership of joint accounts. As 

Justice Sheehy very ably noted in this Court's opinion in 

Casaqranda v. Donahue, supra, that rule was set forth and 

reiterated in Ludwig v. Montana Bank & Trust Co. (1939) , 109 

Mont. 477, 98 P.2d 377, wherein this Court quoted with 

approval from Hill v. Badeljy (Ca.App. 1930), 290 P. 637 at 

640: 

"The question involved in cases of this 

character is the intention of the 

parties . . . and when such intention is 

evidenced by a written agreement, as was 

done in the case at bar, this question of 

intention ceases to be an issue, and the 

Courts are bound by the written 

agreement . . . Furthermore . . . parol 

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.'' 98 P.2d 

at 389. 

In our most recent case, Malek v. Patten, supra, this 

Court again reasserted that it "preferred" the Montana rule 

even though the donee/joint owner never signed the signature 

card. In Montana's cases involving third parties, one joint 

owner is truly an owner with an unquestionable right to 

withdraw the entire funds. It is only where one joint tenant 

seeks to take advantage of the other without third party 

rights being affected, that this Court has allowed evidence 

beyond the joint account signature card and its legal 

consequences. 

In the instant case such third party rights are the 

primary consideration and therefore no extrinsic evidence was 

admissible. Mark Coe, Tammerly Coe and Jordan Coe all admit 

in their affidavit that Mark was an owner of the joint 

account. 

The second issue considers whether the joint account is 

distinguished from a traditional common law fractional share, 

and a creditor of one depositor can execute on the whole 

account. The statutes that control in this matter cover the 

property and ownership thereof and ownership of joint bank 

accoun.ts in Montana. That section, 70-1-101, MCA, provides 

as follows: 

"Property defined--ownership. The 

ownership of a thing is the right of one 

or more persons to possess and use it to 

the exclusion of others. In this code, 

the thing of which there may be ownership 

is called property." 

Section 32-1-442, MCA, concerning ownership of joint 

bank accounts in Montana, provides in pertinent part: 

"When a deposit has been made or shall 

hereafter be made in any bank transacting 

business in this state in the names of 
two or more persons, payable to either or 

payable to either or the survivor, or any 

survivor, such deposit, or any part 

thereof, or any interest or dividend 

thereon, may be paid to any of said 

persons whether the other or others be 

living or not . . . " 

Section 70-1-306, MCA, provides: 

"Ownership by several persons--types. 

The ownership of property by several 

persons is either of: 

" (1) joint interests; 

" (2) partnership interests; 

"(3) interests in common." 

As previously noted in consideration of the controlling 

issues in this case, numbers 1 and 2, the question is whether 

this is a joint account under our statutory and case law, or 

a tenancy in common with no survivor. This Court in Ivins v. 

Hardy (1947), 120 Mont. 35, 179 P.2d 745, held that a tenancy 

in common is created whenever the instrument bringing an 

estate of two or more persons into existence does not 

specifically state that the estate created is other than a 

"tenancy in common." The facts situation concerning the 

signing of the signature card in Casagranda v. Donahue, 

supra, and the facts situation in this case are different. 

The card signed in the joint account in Casagranda 

specifically said: 

"The undersigned hereby open an account 

in your bank as joint tenants and not as 

tenants in common, and, upon the death of 

either or any of us, all monies then in 

this account shall be paid to the 

survivor or survivors as his, her, or 

their individual property. All monies 

hereafter deposited in this account shall 

likewise be joint tenants and not tenants 

in common. You are hereby directed to 

honor checks or orders on this account 

signed by either or any of us, or 

survivors of either or any of us." 
Under that facts situation in Casagranda, we held that 

the savings account became the individual property of 

respondent upon the decedent's death. Right of survivorship, 

which is an essential characteristic of any joint tenancy, 

cannot be defeated by the executrix of defendant's estate, 

and any attempt to satisfy the general devises in a will. 

In the case at bar the signature card signed by 

Tammerly D. Coe or Mark D. Coe noted: 

"The signature of each person authorized 

to sign on this account appears on the 

reverse side of this card and signifies 

agreement that the account is subject to 

all applicable rules of this bank now 

existing or hereafter adopted. I 

acknowledge receipt of a copy of the 

Bank's Rules and Regulations Governing 

Bank Accounts." 

The reverse side of the signature card had the following 

notated at the bottom: 

"The undersigned depositor, whose bank 

account is described on the reverse side, 

hereby appoints the person(s) whose 

specimen signature (s) appears above, 

agent (s) of the undersigned with respect 

to said bank account with the authority 

specified in the Bank's posted General 

Rules and Regulations Governing Bank 

Accounts. l1 

We find that the major distinguishing characteristic of 

a joint tenancy as opposed to a tenancy in common is a right 

of the survivor of each of the co-tenants. We hold, under 

the facts of this case, that this is a tenancy in common and 

that the creditor, University of Montana, is entitled to 

one-half, not the total amount levied against the account 

currently being held by the Clerk of the Court of the Fourth 

Judicial District. 

Ha.ving decided the first two issues which are 

controlling, it is unnecessary to consider the remaining 

issues presented by the respondent, that being whether 

appellants had failed to establish an intent not to make 
Mark Coe an owner and whether equitable considerations favor 

the appellants. 

The judgment of the District Court is modified and 

remanded with direction to comply with the provisions of this 

opinion. 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I respectfully dissent from what I find to be a bewildering rationale in the majority opinion. 

In stating the facts, the majority notes: 

"Through one of several executions, the 

University levied against the joint 

savings account of Mark Coe at the First 

Bank-Western Montana, Missoula." 

With little explanation, the majority concludes its opinion 

by finding that the account is not a joint account, but 

rather a tenancy in common. Apparently, the majority's 

conclusion rests upon the fact that the signature card did 

not contain a clear designation of ownership, nor was there a 

reference to survivorship; therefore, the Court deems the 

funds in the account to be held by the account designees as 

tenants in common rather than joint tenants. 

This is a case of first impression in Montana. In 

Casagranda v. Donahue (1978), 178 Mont. 479, 585 P.2d 1286, 

relying on State Board of Equalization v. Cole (1948), 122 

Mont. 9, 195 P.2d 989, this Court held that where depositors 

sign a signature card containing an agreement that the deposit is payable to one of the co-depositors or the survivor, 

the question of donative intent is settled and the funds in 

the account are a joint tenancy. However, in both Casagranda 

and Cole, one of the people whose names appeared on the 

signature card had died. This Court made an exception to 

that rule in Anderson v. Baker (1981), 196 Mont. 494, 641 

P.2d 1035. In Anderson, the donor/depositor attempted in her 

lifetime to divest the alleged joint tenant of any interest 

in the account. This Court held that the donor/depositor had 

exclusive ownership of the funds in the joint account and 

that the signature card was not conclusive under Montana law. 

The distinguishing feature from Casaqranda and Cole was that 
the donor/depositor was alive and donative intent was 

assertainable. 

In the case at bar, there is no agreement for these 

funds to be owned in any certain manner. Therefore, the 

question of ownership must remain open. 

The unrefuted facts in this case show that the funds in 

the account were owned by Tammerly Coe and Jordan Coe. Mark 

Coe, under facts which are not contested, had no ownership in 

the funds. 

it should be noted that a bank account itself can be 

held in a different ownership than the funds deposited in the 

account. Two lawyers may have a joint account as partners 

and deposit a client's money in the account. Those monies do 

not automatically become the property of the named account 

owners. It is true that, as between the bank and the depositors, the bank is without liability when it releases funds to 

those named an the account. However, if the funds in the 

account belong to another, the account owners must hold the 

money in trust for the rightful ownpr. 

In O'Hair v. O'Hair (Ariz. 1973), 508 P.2d 66, the 

Arizona court dealt with a similar question. Under the facts 

of that case, the court was involved in determining ownership 

of $150,000 deposited by husband in husband and wife's joint 

bank account. The court stated: 

"While as between the bank and the depositor the contract of deposit is conclusive, the mere form of the bank account 

is not regarded as sufficient to establish the intent of the depositor to give 

another a joint interest in or ownership 

of the deposit. Bolton v. Bolton, 306 

111. 473, 138 N.E. 158 (1923) ; Ball v. 

Forbes, 314 Mass. 200, 49 N.E.2d 898 

(1943); Hodgins v. Zabel, 7 Misc.2d 484, 

166 N.Y.S.2d 135 (Sup.Ct. 1.957); Industrial Trust Co. v. Taylor, 69 R.I. 62, 30 

A.2d 853 (1943) . As the court said in 

Cashman v. Mason, 72 F.Supp. 487, 492 

(D.Minn. 1947) : 
"'Joint accounts are a common method of 

handling funds in a bank as between 

husband and wife and others for mutual 

convenience and economy, but without 

necessarily intending to bestow any 

present interest in the fund on the one 

who is joined for the convenience of the 

owner of the moneys deposited.' 

" ' [TI he intention of the depositor is 

controlling.' McNabb v. Fisher, supra, 

38 Ariz. at 295, 299 P. at 681." 508 

P.2d at 68. 

Unfortunately, the precedent of this case is incredibly 

far-reaching and will effectuate absurd results. Despite 

actual evidence of ownership including the intent of depositors, funds in a bank account are joint tenancy funds if the 

account provides for survivorship and tenancy in common funds 

if the account is silent as to survivorship. Under the 

authority of this case, the ownership of all funds will be 

automatically transferred to reflect the ownership designated 

on the account itself. 

Although the majority opinion is not clear as to what 

disposition occurred in the District Court, the fact is that 

the District Court allowed execution upon all of the funds in 

the joint bank account. I would reverse and remand with 

directions to dismiss. 
Mr. Justice Fred J. Weber dissents as follows: 

I respectfully dissent from the majority opinion. While 

this dissent adds no authority, I trust it will help to raise 

questions not yet answered by the majority opinion and 

Justice Morrison's dissent. For clarity in the discussion, 

following is Exhibit 6, the signature card for this account: 

r! 

CIV /LfS A4 Stata ~&?hone No 7aJ - =.\- 

Soclai Secur~ty or 5- 3 1 . ( . . 3 P~J~CCUD~IIO~ Taxpayer Ident. No 7 LJ or Employer 

First Bank (N.A.) -Western Monlana Mlssoula 

Ylt.oula, Uontaru 69807 

Membar Flnt Bank Syncem 

Savln~l 0 SpeClll Sevlngs 0 Check~ng Specla1 Checklng Con~merclal 0 T~me Certlficetaa., 

0 Psnnerrnip u Unlform Gilt to M~nora 0 Indtvldual 0 Soc~ety or Organizat~on 

63 Jo~nl 0 Truatee CJ Mulllple Trustee I. 

Onicer'r Inltlrlr - 

2.2-10s 

Slpneturar raqulred on all checks or wllhdrewala 

I 

I 

POWER Of ATTORNEY 

In a number of the decisions of this Court discussing 

bank accounts, the account cards indicated an express 

intention to create a joint tenancy with right of 

survivorship. The foregoing only indicates an intent to 

establish a "Joint" account. 

Ttle undersloned deposllor. whose bank aCCOUnl Is de¶crlbad on reverse slda, hereby apuolnts (ha peraon(aJ rhoae rpeclmen aignatureIaJ apPaars above, aganl(rJ of lha undarrlgned wllh raapect to rald 

, bank rccounl w~lh Iha euthorlly @pecll~ad In tna Bank'@ Postad Ganrrrl Rular and Ragulallona Qovarnlnp 8ank AccounU. cy 
Section 32-1-442, MCA, in substance provides that when a 

deposit is made payable to either of two persons, such 

deposit may be paid to either of such persons, whether 1-iving 

or not. As a result, from the Bank's standpoint, this 

account is treated as a joint tenancy with right of 

survivorship. 

In contrast, S 70-1-307, MCA, in substance provides that 

a joint tenancy is one owned by several persons in equal. 

shares by a title created by a single transfer when expressly 

declared in the transfer to be a joint tenancy. The 

signature card does not contain a declaration of intent to 

create a joint tenancy. In a similar manner, § 70-1-314 in 

substance provides that every interest created in favor of 

several persons is an interest in common unless declared in 

its creation to be a joint interest as provided in 

§ 70-1-307, MCA. These code sections suggest that the 

account in question should be classed as a tenancy in common. 

However, in Marshall v. Minlschmidt (1966) , 148 Mont. 

263, 419 P.2d 486, this Court concluded that a brand with an 

"or" designation established a joint tenancy. Following is 

the form of ownership and conclusion of the Court: 

"The ownership of the brand as of December 7, 1954, 

was in the name of 'Wm. L. or Etta M. Minlschmidt 

or Vern Field . . . Then, on July 10, 1958, 

during the deceased's last il lness, the brand was 

transferred to the names of 'Wm. L. or Etta M. 

Minlschmidt . . .' 

"The recorded brand signifies a joint interest in 

the brand, the several persons having equal shares. 

Section 67-308, R.C.M. 1947. [Now S 70-1-307, 

MCA. ] I' 

Marshall was subsequently followed by this Court in First 

Westside Nat' 1 Bank v. Llera, Tynes & Fisher (1978) , 176 

Mont. 481, 580 P.2d 100. There the Court concluded that 

following Marshall, in Montana an ownership document showing 

title in two or more persons "and/orV has the effect of 

creating a joint tenancy estate with right of survivorship. 

This applied to personal property, not real estate. The 
Court then considered the nature of the interest of a joint 

tenant in joint tenancy property and referred to what is now 

S 70-1-307, MCA, to conclude that the effect of the statute 

is to include all of the incidents of a joint tenancy estate 

at common law. The Court then stated: 

"Thus, accepting the 'and/or1 title as having 

created a joint tenancy in this case, the legal 

result is that Allen R. Llera owned an equal share 

in the automobile, and the right of survivorship 

with his mother." 

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 of 

the rights of joint tenants with. right of survivorship. 

Our next consideration is the effect of the levy of 

execution upon the interest of Mark D. Coe in the joint 

account. As pointed out, § 32-1-442, MCA, clearly gives to 

Mark D. Coe the right to withdraw all of the funds from time 

to time in the account, and obligates the Bank to pay any 

amounts drawn from the account by him. That code section was 

construed in Ludwig v. Montana Bank & Trust Co. (1939), 109 

Mont. 477, 98 P.2d 379, where the Court was faced with the 

withdrawal of all of the funds from an account by one joint 

party without the consent of the other. The Court cited with 

approval Hill v. Badeljy, 117 Cal.App. 598, 290 P. 637, 640 

stating: 

" 'The question involved in cases of this character 

is the intention of the parties making the deposit, 

and where such intention is evidenced by a written 

agreement, as was done in the case at bar, this 

question of intention ceases to be an issue, and 

the courts are bound by the written agreement . . . Furthermore, in any action between the depositors 

or the bank during the lifetime of both depositors, 

in the absence of fraud or mistake, par01 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.'" 

There is no evidence in the record to indicate any contrary 

intent on the part of the parties. 
I would conclude that the execution creditor can 

properly attach all of the funds in the bank account in the 

same manner that Mark Coe could have withdrawn all of the 

funds from the same account. 

The undersigned Justice William E. Hunt, Sr. joins in 

the foregoing dissent. / 

---- 

Justice