;;4 hps~ ~UPREL~IE COURT OF THE STATE OF MONTANA 

PATSY JEAN ANDERSON, as Personal 

kepresentative of the Estate of 

?IARIE SANDERS, deceased, 

Plaintiff, Cross-Appellant, 

and Respondent, 

LEO B. 3AKERr 

Defendant, CSOS~-APP~~~~~~, 

and Respondent. MAR 21 1982 

- - 

ORDER OF SUPREME COURT 

-- 

PER CUR1A:II: 

Patsy Jean Anderson, as personal representative of 

the estate of Marie Sanders, deceased, the plaintiff, crossappellant and respondent, has filed herein a petition for 

rehearing. Leo B. Baker, defendant, cross-appellant, and 

respondent has filed objections thereto. The Court has 

examined and considered the same. 

IT IS ORDERED: 

1. The final paragraph of the majority opinion I 

appearing on page 280 of 39 State Reporter, is stricken and 

the following paragraph substituted therefor: 

"Reversed and remanded to the District Court 

for entry. of judgment for plaintiff and 

cross-appellant Anderson in the principal sum 

of $26,182.35 plus accrued interest on the 

two certificates of deposit and savings 

account from July 30, 1978 to November 30, 

1978, to bo calculated by the District Court, 

together gith interest at the statutory rate 

on the foregoing total sum from November 30, 

1.978 to date of judgment, and costs." 

2. As so modified, the petition for rehearing is 
aeilled. 

3. i'he C?err< 1s clirecteci to 111ail true copy of this 

order to counsel of record for the respective parties and to 

the Cler~ of tne District Court of the Thirteenth Judicial 

Districtl of the State of Montana, in and for the County of 

Yellowstone. 

DATED tnis day of March, 1982. 

24 Ad. Sk..d4 

Chief Justice 

Mr. Justice John C. Sileehy and Mr. Justice Frank £3. 

Morrison, Jr., do not join in this order. 
No. 80-420 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

PATSY JEAN ANDERSON, as Personal Representative 

of the Estate of Marie Sanders, Deceased, 

Plaintiff, Cross-Appellant and Respondent, 

-vsLEO B. BAKER, 

Defendant, Cross-Appellant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowst~ne, The Honorable 

William J. Speare, Judge presiding. 

Counsel of Record: 

For Plaintiff, Cross-Appellant and Respondent: 

Holmstrom, Dunaway & West, Billings, Montana 

Vicki Dunaway argued, Billings, Montana 

For Defendant, Cross-Appellant and Respondent: 

Hauf.and Forsythe, Billings, Montana 

John Hauf argued, Billings, Montana 

Submitted: November 30, 1981 

~ecided :fEe j I gpl 

. . 

Clerk' 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This is an appeal and cross-appeal from a summary judgment 

in a claim and delivery action. The District Court of 

Yellowstone County awarded each party one-half of t.he mnies in a 

savings account and two certificates of deposit in a savings and 

loan association. We reverse. 

The uncontradicted facts disclose that Marie Sanders, who 

lived on a farm near Ballantine, Montana, opened a savings 

account and two certificates of deposit in 1972 and 1974 at 

Security Federal Savings and Loan in Billings, Montana. On 

October 28, 1975, the name of her son, Leo B. Baker, who was 

buying the farm from Sanders, was added as a joint tenant. to the 

three accounts which, by July 30, 1978, (through various deposits 

and interest accumulation) had come to total $26,182.35. 

The signature cards for the three accounts, signed by 

Baker and Sanders contained the following language: 

" . . . It is agreed by the signatory parties 

with each other and by the parties with the 

Association that any funds placed in or added to 

the account by any one of the parties is and 

shall be conclusively intended to be a gift and 

delivery at that time of such funds to the 

signatory party or parties to the extent. of his 

or their pro rata interest in the account ." 

The facts indicate that Mrs. Sanders did not intend to gift any 

portion of the savings accounts to Baker and that his name was 

placed on the account so he could withdraw money for her 

expenses, if needed. Also, a bank officer's af f idavit indicated 

that in 1978, three years after Baker's name had been placed 

on the accounts, Baker told t.he officer that the funds in the 

accounts belonged to his mother and were not his money. 

In 1975, Mrs. Sanders gave the passbook and certificates 

to Baker. In May, 1978, Mrs. Sanders was hospitalized for about 

a week in Billings, Montana, at which time her granddaughter, 

Patsy Jean Anderson, came from Arizona to visit her. In early 

June, after Mrs. Sanders had been released from the hospital she 
went to Arizona to see her granddaughter. 

On June 29, 1978, Mrs. Sanders executed her will, giving 

the bulk of her estate to Anderson (except for a few cash 

bequests) and named Anderson as her personal representative. On 

July 7, Sanders, through her attorney in Billings, made a written 

demand on Baker for the return of the passbook and certificates 

so she could withdraw the money. Baker refused and on August 3, 

1978, Sanders filed the instant suit for their return. 

Thus Marie Sanders commenced this action on August 3, 

1978, alleging that her son, Leo Baker, was wrongfully retaining 

the two certificates of deposit and passbook. She asked for 

their return and that Baker's name be removed therefrom. In the 

alternative, she asked for the total sum of $26,182.35 in 

damages, if the certificates of deposit and passbook were not 

returned. 

Baker filed an answer on October 20, asserting that he had 

the right to retain the certificates of deposit and passbook and 

further alleging that Sanders was incompetent and acting under 

coercion and undue influence. On November 18, 1978, Mrs. Sanders 

died in Arizona and on November 30, Baker withdrew all the money 

from the three accounts. 

Af ter Sanders death the personal representative, Patsy 

Jean Anderson, was substituted as plaintiff. On March 5, 1979, 

the defendant filed an amended answer, raising the additional 

defenses of statute of limitations, laches and equitable estoppel. 

After a substitution of counsel for defendant, both sides moved 

for summary judgment, each seeking the total amount on deposit. 

On July 10, 1980, the District Court entered judgment 

granting each of the parties one-half of the total funds on 

deposit. Baker now appeals, contending he is entitled to all of 

the accounts as the surviving joint tenant. Anderson 

cross-appeals, claiming that she, as residuary legatee of 

Sanders, is entitled to the full balance. 
The issues on appeal can be stated as follows: 

1. Is par01 evidence admissible to show the funds were 

- not intended as a gift by Sanders to Baker? 

2. Is Sanders' suit barred by the applicable statute of 

limitations, laches, or equitable estoppel? 

3. Is the plaintiff entitled to interest calculated from 

the date Baker withdrew all funds from the three bank accounts? 

We reverse the trial court and find that the plaintiff 

personal representative should have been granted summary judgment 

in her claim and delivery action. 

With regard to the first issue, Baker argues that State 

Board of Equalization v. Cole (1968), 122 Mont, 9, 195 P.2d 989, 

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

are controlling. In Cole, the decedent created five joint bank 

accounts between herself and various relatives, all within three 

years of her death. After the decedent's death, the trial court 

imposed an inheritance tax measured by one-half of the value of 

the accounts. The questions presented on appeal included whether 

the state was entitled to an inheritance tax on the full amount of 

the joint bank accounts, or just one-half of the accounts, The 

court, in finding that the half-interest in the bank account 

which the joint tenants received was taxable as a transfer in 

contemplation of death, made the following statements: 

"Of course if the transfer by the donor to the 

joint account be regarded as a gift it has to 

satisfy all the requirements of a valid gift 

inter vivos. The essential requisites of a gift 

inter vivos are delivery, accompanying intent, 

and acceptance by the donee. (Citing cases.) 

"The first question is the intention of the parties making the deposit. (5 Michie, Banks & 

Banking, p. 101, sec. 46.) Such intention was 

discussed in Hill v. Badeljy, 107 Cal.App. 598, 

605, 290 P. 637, 640, where the court declared, 

'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.' The above quotation 
was cit.ed and approved by this court in Ludwig 

v. Montana Bank & Trust Co., 109 Mont. 477, 502, 

98 P.2d 377, 379. 

"The Montana court also said, quoting from 9 

C.J.S., Banks & Banking, sec. 286, 'Where no other 

evidence of intent is available, the form of the 

deposit may control; but when such intent is 

evidenced by a written agreement, the question 

of intention ceases to be an issue and the 

courts are bound by the agreement.' Ludwig v. 

Montana Bank & Trust Co., supra, at page 502 of 

109 Mont., at page 389 of 98 P.2d. 

"In this jurisdiction the signing of the signature card containing an agreement that the deposit was payable to either of the co-depositors 

or the survivor settled the question of the 

donative intent. of the donor to make a gift in 

joint tenancy. See In re Sullivan's Estate, 112 

Mont. 519, 118 P.2d 383." 122 Mont. at 14-15, 

195 P.2d at 992. 

In Casagranda, supra, the decedent placed funds in two 

savings accounts, naming himself and t-he defendant as joint 

tenants with the right of survivorship. After his death, the 

executrix brought suit. to quiet title in the accounts and the 

court awarded the money to the defendant, as the surviving joint 

tenant. 

The court elaborated on the Cole holding with the 

following language : 

"Cole stood for the proposition that, in 

Montana, signing a signature card containing an 

agreement that the deposit is payable t.o either 

of the co-depositors or the survivor settles the 

question of donative intent to make a joint 

tenancy. Appellant. cites an Arizona decision, 

O'Hair v. O'Hair (1973), 109 Ariz. 236, 508 P.2d 

66, wherein it was held that the mere form of a 

bank account is not regarded as sufficient to 

establish the intent of the depositor to give 

another a joint interest in or ownership of it. 

We find the Montana rule represents a more 

re1 iable manner for determining questions concerning the ownership of joint bank accounts. 

This should not be mistakenly understood to mean 

we have no concern for the depositor's 

intentions. Intent-ion is clearly expressed on 

the face of t-he signature card. Addit-ional evidence is unnecessary. . ." 178 Mont. at 483-484, 

585 P.2d at 1288. 

However, we distinguish the instant case from Cole and 

Casagranda for the following reason. In neither Cole nor 

Casagranda was there any attempt made during the lifetime of t-he 
donor-depositor, as there was here, to divest the other joint 

tenant of his or her interest in the account. In spite of the 

conclusory gift language contained on the signature card signed 

by Baker and Sanders, the uncontroverted evidence here shows that 

no gift was intended, i.e., Baker was named as a joint tenant for 

convenience purposes only. The legal effect of Sanders' claim 

and delivery action, filed during her lifetime, was to establish 

judicially her exclusive ownership to the funds in the account 

cutting off Baker's right of survivorship and to allow Baker to 

take, solely on the basis of the language contained on the signature card, would result in a substantial miscarriage of justice. 

We therefore hold that where, 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. We are especially cognizant 

of the fact that many elderly people, whose means of transportation is limited or whose physical condition is deteriorating, 

execute the signature card in conjunction with a younger relative 

so the younger person may make withdrawals at the other's 

direction. 

We are also mindful that the signature cards are forms 

containing language drafted by the depository institution. While 

the language thereon may very well describe the agreements between the depositor and the depository, it can hardly be expected 

to accurately express the intentions and relationships between 

the joint tenants about which the depository typically has 

little, if any, knowledge. Where the donor-depositor, as in the 

instant suit, indicates during her lifetime that her intent is 

other than that revealed on the signature card, we hold such evidence admissible. 

Other courts have stated this same thought in a similar 

manner. For example, in Harrington v. Emmerman (D.C. Cir. 
1950), 186 F.2d 757, which involved two female joint tenants, it 

was said: 

"To be sure, the deposit agreement described the 

two women as joint owners ' and provided that 

either might draw on the account; but the 

agreement was on a printed form supplied by the 

building association, presumably for its own 

purpose and protection. Some such form probably 

would have been required by it to safeguard its 

own interests even had Miss Emmerman then stated 

the arrangement was merely for the convenience 

of Mrs. Carlin. The writing was conclusive as 

between the two women on the one hand and the 

building association on the other, but was not 

conclusive between the individuals as to whether 

a present gift had been intended ." 186 F.2d at 

761. 

The Washington Supreme Court stated it thus: 

" . . . [TI he signature card is invariably in a 

form provided by the depository institution 

which has undoubtedly drafted it to protect the 

institution rather than express the terms of an 

agreement between the depositors." In re 

Guardianship of Matt (1969), 75 Wash.2d 123, 

, 449 P.2d 413, 418. 

When a depositor opens a savings account at an institution he must accept the forms drafted by the depository and proferred him to sign or go elsewhere. We have held in other 

"take-it-or-leave-it" situations, where adheison contracts are 

involved, that the terms are to be construed against. the drafter 

and any ambiguities are to be resolved in favor of the party 

having no voice in arriving at t.he document's terms, Fitzgerald 

v. Aetna Ins. Co. (1978), 176 Mont. 186, 577 P.2d 370. We feel 

this reasoning also supports our conclusion that the language of 

the signakure cards signed by Baker and Sanders should not be the 

"only word" on what their actual relationship was intended by 

them to be. 

Further, the par01 evidence rule in Montana is not an 

obstacle for the introduction of evidence other than simply 

the signature card language. Section 28-2-90 5, MCA, provides in 

pertinent part: 

"When extrinsic evidence concerning a written 

agreement -- may be considered. (1) whenever the 

terms of an agreement have been reduced to 

writing by the parties, it is to be considered 
as containing all those terms. Therefore, there 

can be between the parties and their representatives or successors in interest no evidence of 

the terms of the agreement other than the contents of the writing except in the following 

cases: 

"(2) This section -- does not exclude other evidence -- of the circumstances under which the 

agreement ---- was made or to which it relates, - as 

described in 1-4-102, or other evidence to 

explain anextrinsic ambiguity or to establish 

illegality or fraud." (Emphasis added .) 

Section 1-4-102, MCA, in turn provides: 

"Consideration of circumstances surrounding execution. For theproper construction of an 

instrument, the circumstances under which it was 

made, including the situation of the subject of 

the instrument and of the parties to it, may 

also be shown so that the judge be placed in the 

position of those whose language he is to 

interpret." 

The circumstances under which the signature cards were executed 

here shows that no gift was intended by Sanders to Baker when the 

cards were signed. 

In a similar situation involving unambiguous lien waivers, 

parol evidence was held admissible to show the circumstances of 

the parties and their real purpose in executing and receiving 

the lien waivers. Fillbach v. Inland Construction Corp. (1978), 

178 Mont. 374, 584 P.2d 1274. There a subcontractor signed a 

series of lien waiver forms in which he acknowledged receipt of 

specified sums of money in full payment for labor and materials 

furnished by him to a specified date and waived all rights to 

file mechanics liens against the premises. Nonetheless we held 

parol evidence admissible to show that the lien waivers were executed to enable the subcontractor to receive money from the owner 

from time to time and were not intended to constitute payment in 

full to the specified date as stated in the release. 

Likewise in Kussler v. Burlington Northern Inc. (1980), 

Mont. , 606 P.2d 520, 37 St.Rep. 240, we adopted prospectively 

the rule from Restatement of Torts, Second, Sec. 885, and held 
that in the future unless a general release form specifically 

states otherwise, parol evidence is admissible to show whether 

the parties intended to release other parties or whether the 

release was actually intended to constitute full compensation in 

the face of unambiguous language to that effect in the release 

form. 

Other jurisdictions have similarly endorsed the use of 

parol evidence in joint bank account situations. In Matt, supra, 

the court found that the execution of the signature card raised a 

rebuttable presumption of joint tenancy and it would make li t-tle 

sense to refuse parol evidence t.o rebut the presumption. In 

Murray v. Gadsden (D.C.Cir. 1952), 197 F.2d 194, 33 ALR2d 554, 

the court examined the parol evidence rule exception, which 

allows an inquiry into the object of the parties in executing the 

instrument, and admitted the parol evidence. See Annot., Par01 

Evidence Rule As Applied to Deposit of Funds in Name of Depositor 

and Another (1954), 33 ALR2d 569. 

The case of Harrington, supra, is similar to the case at 

bar. In Harrington, the donor-depositor continued to treat the 

joint account as her own during her lifetime and, subsequent to 

the creation of the account, her representative filed suit 

because the other joint tenant would not surrender the passbook. 

After an answer had been filed, but before any further action was 

taken, the depositor died. 

The Harrington court found that the filing of the suit by 

the donor-depositor cut off any survivorship rights of the other 

joint tenant and whatever interest the depositor had passed to 

her executor. The case was then remanded for the survivor to t.ry 

to prove t.hat the decedent intended a gift of at least part of 

the account t.o the survivor. In t-he case at bar, however, there 

is uncontradicted evidence apart from the signature card that 

Sanders never intended a gift of any part of the accounts to 

Baker, that Baker was named as a joint tenant for convenience 

purposes only, and that Baker understood this. See also Brennan 
v. Timrnins (1963), 104 N.H. 384, 187 A. 2d 793 and Brennen v. 

Timrnins (1964), 105 N.H. 464, 202 A.2d 229. 

In two cases wherein courts have construed language almost. 

identical to that at issue here, additional evidence was allowed. 

In Graves v. Graves (1963), 42 Ill.App.2d 438, 192 N.E.2d 616, 

the court examined evidence other than merely the words in the 

agreement, finding that the record, in addition to the 

agreements, showed that a gift was intended. In Estate of Macak 

(1973), 14 Ill.App.3d 261, 302 N.E.2d 436, the court similarly 

looked at the evidence on the record, finding no evidence to 

rebut the presumption in favor of the surviving joint t.enant. It 

should be noted t.hat in both Graves and Macak there was evidence 

that the donor-depositor intended a gift to the other joint. 

tenant. In this case at bar, however, the evidence is exactly to 

the contrary. See Annot., Creation of Joint Savings Account. or - 

Savings Certificate as Gift to Survivor (1972), 43 ALR3d 971, 

1018. 

With regard to the second issue, Sanders1 action is not 

barred by the two-year statute of limitations, section 27-2-207, 

MCA. This statute does not begin to run until after there has 

been a demand and refusal of delivery. Interstate Manufacturing 

Co. v. Interstate Products Co. (1965), 146 Mont. 449, 408 P.2d 

478. Here, the statute began to run at the time Sanders made 

written demand on Baker for the return of the passbook and 

certificates, i.e. July 7, 1978, and Sanders filed her suit less 

than one month later, well within the required time. 

The doctrine of laches has no application to the present 

case. Laches requires negligence in the assertion of a claim 

and exists when there has been an unexplained delay of such 

duration as to render the enforcement of t.he right inequitable. 

Brabender v. Kit Manufacturing Co. (1977), 174 Mont. 63, 67-68, 

568 P.2d 547, 549. There is no evidence here that Mrs. Sanders 

was negligent in prosecuting her claim. As stated above, she 
waited less than a month after her written demand was refused 

before filing suit. 

Similarly, equitable estoppel does not apply here. This 

principle requires that the party claiming it relied on a representation or promise to his detriment, Carroccia v. Todd (1980), 

-- Mont. , 615 P.2d 225, 37 St.Rep. 1437. Baker has not shown 

any reliance to his prejudice, and thus cannot have a legitimate 

defense based on equitable estoppel. 

With regard to the third issue, the trial court correctly 

calculated interest from the date that the three accounts were 

closed by Leo Baker and the proceeds converted to his own use, 

which was November 30, 1978, The applicable statute is section 

27-1-320, MCA, which provides in pertinent part : 

"Conversion of personal property. (1) The 

detriment caused by the wrongful conversion of 

personal property is presumed to be: 

"(a) the value of the property at the time of 

its conversion with the interest from that 

time, . ." 

Accord, Galbreath v. Armstrong (1948), 121 Mont. 387, 193 P.2d 

Reversed and remanded to the District Court for entry of 

judgment for plaintiff and cross-appellant Anderson for the sum 

of $26,182.35, interest thereon at the statutory rate from 

November 30, 1978 to date of judgment, and costs. 

Chief Justice 

We concur: 
.............................. 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I would affirm the decision of the District Court, 

which gave one-half of the joint deposits to each of the 

contending parties. 

I will first summarize my reasons for dissenting to the 

majority opinion, and then I will support my summary by a 

more extended discussion of the applicable law. 

Marie Sanders, by executing the unique depository 

instruments through a savings institution made a gift to her 

son, Leo B. Baker, of one-half of the funds deposited. By 

law, she could not revoke that gift. In addition, by the 

terms of the same depository instruments, she created a 

joint tenancy in the remainder of the funds, giving Leo B. 

Baker a right of survivorship to all of the deposit if she 

predeceased him. 

By the creation of the joint tenancy, Marie Sanders 

gave Leo B. Baker the power to acquire dominion over the 

entire account by withdrawing the same. Leo B. Baker could 

have acquired the whole account by withdrawal, or by surviving 

Marie Sanders while the joint tenancy was in full force and 

effect. 

The legal result of the depository instruments was that 

Baker owned one-half of the deposited funds by gift, and further 

interest as a joint tenant with right of survivorship in the 

other half of the deposits. 

This joint tenancy, like any other, depended upon the 

coexistence of the four unities of a joint tenancy: title, 

interest, time, and possession. A joint tenant's right of 

survivorship is not irrevocably fixed upon the creation of 

the estate. The survivorship right becomes fixed only if the 

joint tenant survives, and then only if the four unities of 

the joint tenancy estate have continued to exist to the 

moment of survival. 
Before the death of any joint tenant, any action by one 

joint tenant which serves to sever or terminate the joint 

tenancy destroys the right of survivorship. Examples are: 

a voluntary conveyance by one party of his joint interest; a 

partition proceedings; or, as in this case, the demand or 

action by Marie Sanders to terminate the title in joint 

tenancy. 

When a joint tenancy is severed, the parties hold the 

property as tenants in common. (A joint tenancy is distinguished 

from a tenancy by the entirety by the fact that a tenancy by 

the entirety requires a fifth unity, that of person. Husbands 

and wives only can hold as tenants by the entirety.) Here, 

Marie Sanders terminated the right of survivorship as to 

the funds rightfully belonging to her. One-half of the 

funds, belonging to her as a part of her estate, are subject 

to distribution by her will. 

Thus, Baker is entitled to one-half of the deposited 

funds by gift. He would be entitled to one-half of the 

remaining half of the joint tenancy funds had severance of 

the joint tenancy occurred since he would then be a tenant 

in common. But because the joint tenancy was terminated, not 

severed, during the lifetime of Marie Sanders, he is not 

entitled to any of the remaining half of the funds unless he 

participates as an heir in the distribution of Marie's 

estate. 

The statute of limitations applies against the action 

of Marie to set aside the gift to Leo Baker. The statute 

did not run against her right to terminate the survivorship 

in the joint tenancy, since in this case all the funds were 

hers and she could terminate the right of survivorship at 

any time during her lifetime. 
That is my summary. Following are my reasons: 

Marie Sanders made a gift at the time that she executed 

the signature documents with the savings and loan association. 

The instrument provides in significant part as follows: 

"It is agreed by the signatory parties with 

each other and by the parties with the 

Association that any funds placed in . . . the account . . . shall be conclusively intended 

to be a gift and delivery at that time of such 

funds to the signatory party or parties to the 

extent of his or their pro rata interest in the 

account . . ." 

A gift is a transfer of personal property made voluntarily 

and without consideration. Section 70-3-101, MCA. A gift, 

other than a gift in view of death, cannot be revoked by the 

giver. Section 70-3-103, MCA. 

The language in the depository agreement above goes 

much further than is necessary to establish a joint tenancy 

with right of survivorship. Section 70-1-307, MCA, defines 

a joint interest as "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 . . ." All that the law requires in a signature 

agreement establishing a joint tenancy bank account or 

deposit is an express declaration that the monies are held 

in joint tenancy. No more is required under section 70-1-307, 

MCA . 

I distinguish this depository agreement from what is 

normally or usually required in the establishment of a joint 

tenancy account. A sample of sufficient language is found 

in Nichols, 2 Cyclopedia of Legal Forms, § 2.1422 (1978): 

"The account listed on reverse side of this 

signature card is a joint and several account. 

All funds now or hereafter deposited in account 

by either or any of depositors shall be the 

property of depositors jointly with right of 

survivorship. Each depositor shall have complete 
and absolute authority over account during joint 

lives of depositors and may withdraw any part of 

such funds on checks or other withdrawal orders 

signed by either or any of depositors and by survivor 

or survivors in case of death of any thereof." 

A comparison of the form set out in Nichols and that used by 

the savings and loan association in the case at bar demonstrates 

a vast difference: Nichols' form establishes a joint tenancy 

account; in the case at bar, the form established an absolute 

gift of one-half of the deposit in this case in addition to 

creating a joint tenancy. As a matter of legal effect, it 

is only when one of the joint tenants deposits a disproportionate 

amount in the account that the signature card here comes 

into play. If each of two joint tenants contributed equally 

to a joint tenancy account, the signature card would have no 

gift application. 

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

Mont. 9, 16, 195 P.2d 989, 993, we held that, for inheritance 

tax purposes, the mere creation of a joint tenancy account 

constituted a gift to a joint tenant of one-half of the 

deposit, even though the donor retained the right to exercise 

control over the deposited funds. The contention was made 

there that no gift occurred because the donor had not completely 

divested herself of the title transferred to the donee. 

This Court held that the creation of the joint tenancy was a 

completed gift transferring an interest in the deposit to 

the donee. The form of the depository or signature agreement 

is not set forth in Cole. The discussion of the court is in 

general terms with respect to the creation of a joint tenancy. 

Based on Cole, however, and buttressed by the additional 

language in the signature agreement which is before us in 

the case at bar, there can be no doubt that the legal effect 

of the deposit by Marie Sanders was to make a completed gift 

of one-half of the deposit to Leo B. Baker. We said: 
"If the intent was to confer upon the defendant a 

present right to draw upon the fund, either without 

limitation or for and to the extent of described 

purposes, the transfer was valid, notwithstanding 

the donor retained a right to draw upon the 

fund at will. She thereby completely divested 

herself of the title transferred to the defendant. 

It did not take effect upon her death, and was not 

enlarged by that event. Such title as the defendant 

had vested at the time of the entries upon the 

books. It was a present right and presently enjoyable." 

Cole, supra, 122 Mont. at 17, 195 P.2d at 993. 

As to the intent of Marie Sanders, we have no indication 

in this record that she intended any other thing but the gift 

and the joint tenancy interest that the signature form created. 

In Casagranda v. Donahue (1978), 178 Mont. 479, 483-484, 555 

P.2d 1286, 1288, we said: 

"Cole stood for the proposition that, in Montana, 

signing a signature card containing an agreement 

that the deposit is payable to either of the codepositors or the survivor settles the question 

of donative intent to make a joint tenancy. 

Appellant cites an Arizona decision, OIHair v. 

O'Hair (1973), 109 Ariz. 236, 508 P.2d 66, wherein 

it was held that the mere form of a bank account is not 

regarded as sufficient to establish the intent of 

the depositor to give another a joint interest in 

or ownership of it. We find the Montana rule 

represents a more reliable manner for determining 

questions concerning the ownership of joint bank 

accounts. This should not be mistakenly understood to mean we have no concern for the depositor's 

intentions. Intention is clearly expressed on the 

face of the signature card. Additional evidence 

is unnecessary." 

In Casagranda, supra, we set out the form of the signature 

card used by that institution. 178 Mont. at 484, 585 P.2d at 

1288-1289. It merely established a joint tenancy, and had no 

language in it respecting the conclusive gift of one-half of 

the deposit. 

It is inescapable, therefore, that as to one-half of the 

deposit made by Marie Sanders, under the signature cards which 

she executed at the time, she made a conclusive gift of one-half 

of the deposit to her son, Leo B. Baker. She cannot revoke that 

gift. Section 70-3-103, MCA. 
The legal effect as to the balance of the deposit made 

by Marie Sanders, above the one-half gifted, was that it was 

deposited subject to a joint tenancy with right of survivorship 

between herself and Leo Baker. By the signature card, she 

gave Baker the power to acquire dominion over the entire 

account by withdrawing the same. He could have also acquired 

right to the entire account if she had predeceased him 

because then the whole of the joint tenancy property would 

have vested in him as of the moment of her death. 

In order to determine what should become of the onehalf of the deposited funds under the facts of this case, we 

should examine the inherent qualities of a joint tenancy. 

We have referred above to section 70-1-307, MCA, which 

states that a joint interest is one owned by several persons 

in equal shares. Our court has said that the effect of that 

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

estate under common law. Hennigh v. Hennigh (1957), 131 

Mont. 372, 377, 309 P.2d 1022, 1025. 

The cases reflect two divergent views as to the effect 

of the ownership interest of a joint tenant. One view holds 

that for the duration of the joint tenancy, each party owns 

the undivided whole of the property, and not a fractional 

part thereof. See Merrick v. Peterson (1980), 25 Wash.App. 248, 

606 P.2d 700, 706. The better view in Montana, in view of 

the language of section 70-1-307, MCA, is that each joint 

tenant owns an undivided equal share of the joint tenancy 

estate, with a right to survive to the whole of the joint 

tenancy property if he is the ultimate survivor. As was 

noted in In Re Estates of Carlson (1968), 201 Kan. 635, 443 

P.2d 339, 347, a "joint tenancy" exists where a single 

estate in property, real or personal, is owned by two or 
more persons, under one instrument or act of the parties; 

the grand incident of joint tenancy is the right of survivorship, 

by which the entire tenancy on decease of any joint tenant 

remains to the survivors, and at length to the last survivor. 

Joint bank accounts, however, present a problem because 

either party can acquire dominion over the whole of the 

property by simply withdrawing the funds. This was noted in 

Cole, supra, 122 Mont. at 17-18, 195 P.2d at 993-994, where 

this Court said: 

"The California court has declared that the 

identical California statute created the same 

estate known as joint tenancy or common law . . . While the joint bank account does differ 

from other types of joint tenancies it has not 

been treated differently from other joint ownership . . . For example either co-tenant of a joint tenancy 

in real property could sever the estate by conveying 

his interest to a third party and as between the 

remaining co-tenant and the transferee the new 

estate became a tenancy in common. The special 

feature distinguishing joint tenancy from other 

joint interests was the attribute of survivorship. 

So long as both co-tenants remained alive any 

transfer by one co-tenant only resulted in a transfer 

of half the property. But either joint owner of 

a joint bank account by virtue of the special contract 

with the bank can acquire dominion over the entire 

account by drawing a proper order on the bank. This 

feature is a special attribute of a joint bank account. 

Nevertheless a- joint bank account is otherwise 

subject --- to the same rules - as otherjoint tenancies . . ." (Emphasis added.) 

Where, as here, the joint owners of a bank account have 

not acted to withdraw the funds disproportionately, the 

joint tenancy account is subject to the same rules as any 

other joint tenancy. 

The rules of joint tenancy include the common law 

requirement that four unities are essential to an estate in 

joint tenancy: unity of interest, unity of time, unity of 

title, and unity of possession. Tenhet v. Boswell (1976), 133 

Cal.Rptr. 10, 554 P.2d 330, 334. If an essential unity is 

destroyed, the joint tenancy is severed and a tenancy in 

common results. Tenhet, 331 P.2d at 334. Thus, in First westside 
Nat. Bank of Gr. Falls v. Llera (1978), 176 Mont. 481, 486, 

580 P.2d 100, 103, we held that where one joint tenant in an 

automobile encumbered his interest in the automobile as 

security for a loan to the bank, and defaulted, the action 

of the bank in collecting its security through the automobile 

created a severance, with the result that the bank and the 

other joint tenant became the owners of the automobile as tenants 

in common. In other words, the unity of interest, an essential 

of a joint tenancy estate, had been destroyed. 

A joint tenant can terminate the joint tenancy by any 

act which is inconsistent with its continued existence. 

Shackelton v. Sherrard (Okla. 19631, 385 P.2d 598, 902. Ordinarily 

the inconsistent act will result in a destruction of one of 

the four unities of a joint tenancy and a tenancy in common 

results. Here, however, Marie Sanders moved to end the 

joint tenancy because all of the funds which were in the 

joint tenancy portion of the deposit were hers. In other 

words, she moved to end the right of survivorship which was 

enjoyed at that time by Leo B. Baker. Her effort was more 

than a severance, it was a termination of the joint tenancy 

by a party having a right to terminate because she was the 

true owner of the funds. Baker by his action recognized the 

her right to do so in his statements to the savings and 

loan association officers, and in not appearing to contest 

her deposition in Arizona. The legal effect therefore was to 

terminate the one-half portion of the deposit that was 

subject to the joint tenancy rules. 

As for the statute of limitations, it, of course, 

applies to the gift which was made by virtue of the execution 

of the signature agreements. Her gift could only be set 
aside for fraud or mistake, or incapacity, none of which 

appear here. Even so, the limitation on those grounds is 

two years under section 27-2-203, MCA. The statute was not 

tolled by section 27-2-301, relating to the accrual of an 

action, until she made demand. Her right, if any, to demand 

to set aside the gift portion accrued immediately upon the 

execution of the signature forms and the statute of limitations 

ran from the moment of the execution of those instruments. 

With respect to the joint tenancy portion of the deposit, 

however, the statute of limitations did not run or her 

action did not accrue until she made demand under section 

27-2-301, MCA. Therefore, that portion of her claim is not 

outlawed. 

The action of the majority in resorting to parole 

evidence to set aside a written instrument is a good example 

of why courts should be chary in allowing extrinsic evidence 

to overcome the legal effect of a writing. Assuming that 

parole evidence should be allowed here, it would present a 

question of fact to intent. Yet the majority decides 

Marie Sander's intent as a matter of law, purportedly upon 

"uncontroverted" evidence. Marie Sanders' deposition, taken 

in Arizona in July 1978, is the only evidence available as 

&VI~*Z, 

to her -. She seems to be saying that the signature 

cards were never signed by her: 

"Q. Have you ever authorized him to appear on 

the savings certificates as a joint tenant with 

you? A. No. 

"Q. If the bank signature cards for these savings 

certificates shows your signature on there, would 

it be your position that those signatures would be 

forgeries? A. I don't know. I'd have to see it, 

look into them first. 

"Q. Am I correct, though, that you have no 

knowledge whatsoever of making him your joint 

tenant? Let me ask the question again. 
"Mrs. Sanders, am I correct that you have never 

authorized him to sign on those certificates? 

A. No, I have never. 

"Q. Have you ever given Leo B. Baker your general 

power of attorney? A. No." 

It is a better practice for appellate courts to leave 

the resolution of fact questions to the district courts. In 

my view of the case, however, it is not necessary to decide 

questions of fact at this level. The legal position of the 

parties is determined, as I have said, by the language of 

the signature cards, and by Marie Sander's action to terminate 

the joint tenancy. 

For the foregoing reasons I would hold that, in this 

case, Leo B. Baker is entitled to summary judgment as to 

one-half of the deposited funds; Patsy Jean Anderson is 

entitled to the remaining one-half of the funds as the 

Personal Representative of the estate of Marie Sanders. 

Again, for those reasons, I would affirm the ~istrict Court. 

Mr. Justice Frank B. Morrison concurring: 

I concur in the dissent. n