;;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. 

## MAR211982



## -- ORDER OFSUPREMECOURT

-- 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 isaeilled.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 thisorder.

### No. 80-420 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

PATSY JEANANDERSON, 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.andForsythe,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 certificatesof deposit in a savings and loan association. We reverse. The uncontradicted factsdisclose thatMarie Sanders, who lived on a farm near Ballantine, Montana, opened a savings account and two certificatesof 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 oradded to the account by any one of the parties 

### is and shallbe conclusively intended to be a giftand deliveryat that 

### timeof such funds to the signatory party orparties 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 affidavit indicated that in 1978, three years afterBaker's name had been placed

on the accounts, Baker told t.he officer that the funds in the accounts belonged tohismother and were not hismoney. In 1975, Mrs. Sanders gave the passbook and certificates toBaker. In May, 1978, Mrs. Sanders was hospitalized for about

a week in Billings, Montana, atwhich time her granddaughter, Patsy Jean Anderson, came from Arizona 

### to visither. In early June, afterMrs. Sanders had been released from the hospital shewent toArizona 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 inBillings, 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 thather son, Leo Baker, 

### was wrongfully retaining the two certificatesof deposit and passbook. She asked for their return and thatBaker's name be removed therefrom. In the alternative, she asked for the total sum of $26,182.35 in damages, if the certificatesof deposit and passbook 

### were not returned. Baker filed an answer on October 20, asserting thathe had the right 

### to retain the certificatesof deposit and passbook and further alleging that Sanders 

### was incompetent and acting under coercion and undue influence. On November 18, 1978, Mrs. Sanders died inArizona 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 fordefendant, both sidesmoved for summaryjudgment, 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 fullbalance.The issues on appeal can be stated as follows: 1. Is par01 evidence admissible to show the funds were not intended as a giftby Sanders to Baker? - 2. Is Sanders' suitbarred by the applicable statuteof 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 inher claim and deliveryaction. With regard to the first issue, Baker argues that State Board of Equalization v. Cole (1968), 122Mont, 9, 195 P.2d 989, and Casagranda v. Donahue (1978), 178Mont. 479, 585 P.2d 1286,

arecontrolling. In Cole, the decedent created fivejoint bank accounts between herself and various relatives, allwithin 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 statewas 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 satisfyall 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 firstquestion is the intention of the partiesmaking the deposit. (5Michie, Banks & Banking, p. 101, sec. 46.) Such intention was discussed in Hillv. Badeljy, 107Cal.App. 598, 605, 290 P. 637, 640, where the court declared, 'The question involved in cases of this character is the intention of the partiesmaking the deposit, and where such intention is evidenced by a written agreement, aswas done in the case atbar, thisquestion of intention ceases to be an issue, and the courts arebound by the written agreement.' The above quotation

### was cit.ed and approved by this court inLudwig v. Montana Bank & Trust Co., 109Mont. 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 depositmay 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, atpage 502 of 109Mont., atpage 389 of 98 P.2d. "In thisjurisdiction the signing of the signature card containing an agreement that the depositwas 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." 122Mont. at14-15, 195 P.2d at992. 

### 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 hisdeath, the executrix brought suit. toquiet 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), 109Ariz. 236, 508 P.2d 66, wherein it was held that the 

### mere form of a bank account 

### is not regarded as sufficientto 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 re1iable 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-ionis clearlyexpressed on the face of t-he signature card. Addit-ional evidence is unnecessary. 

# .." 178Mont. at483-484, 585 P.2d at 1288. However, we distinguish the instant case from Cole and Casagranda for the following reason. In neitherCole nor Casagranda 

### was there any attempt made during the lifetime of t-hedonor-depositor, as there was here, to divest the other joint tenant of his or her interest in the account. In spiteof the conclusory giftlanguage contained on the signature card signed by Baker and Sanders, the uncontroverted evidence here shows that

no giftwas intended, i.e., Baker was named as a joint tenant for convenience purposes only. The legal effect of Sanders' claim and deliveryaction, 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 allowBaker to take, solelyon the basis of the language contained on the signature card, would result in a substantial miscarriage of justice. We therefore hold that where, ashere, a depositor during hisor 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 especiallycognizant of the fact that many elderlypeople, 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 atthe other's direction. We are alsomindful 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 hardlybe expected to accuratelyexpress the intentions and relationshipsbetween the joint tenants about which the depository typicallyhas little, if any, knowledge. Where the donor-depositor, as in the instant suit, indicates during her lifetime thather 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), 186F.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 eithermight 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 gifthad been intended

# ." 186F.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), 75Wash.2d 123,



## , 449 P.2d 413, 418. When a depositor opens a savings account atan institution he must accept the forms drafted by the depository and proferred him to sign 

### or go elsewhere. Wehave 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), 176Mont. 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 extrinsicevidence 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 consideredascontaining 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 ortowhich it relates, as 

### ---- - described in 1-4-102, or otherevidence to explain anextrinsic ambiguity or to establish illegalityor 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 alsobe 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 thatno giftwas intended by Sanders to Baker when the cards

### were signed. In a similar situation involving unambiguous lienwaivers, parol evidence was held admissible to show the circumstances of the parties and their real purpose in executing and receiving the lienwaivers. Fillbach v. Inland Construction Corp. (1978), 178Mont. 374, 584 P.2d 1274. There a subcontractor signed a seriesof lienwaiver 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 filemechanics liens against the premises. Nonetheless we held parol evidence admissible to show that the lienwaivers were executed to enable the subcontractor to receive money from the owner from timeto time and were not intended to constitutepayment 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 heldthat 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 orwhether the release was actually intended to constitute fullcompensation in the face of unambiguous language to that effect in the release form. Other jurisdictions have similarlyendorsed 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 lit-tle

sense to refuse parol evidence t.o rebut the presumption. In Murray v. Gadsden (D.C.Cir. 1952), 197F.2d 194, 33 ALR2d 554, the court examined the parol evidence rule exception, which allows an inquiry into the object of the parties inexecuting the instrument, and admitted the parol evidence. See Annot., Par01 Evidence Rule AsApplied toDeposit of Funds inName 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 actionwas taken, the depositor died. The Harrington court found that the filingof the suitby the donor-depositor cut off any survivorship rightsof 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 toprove t.hat the decedent intended a giftof at least part of the account t.o the survivor. In t-he case atbar, however, there is uncontradicted evidence apart from the signature card that Sanders never intended a giftof 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 Brennanv. Timrnins (1963), 104 N.H. 384, 187A.2d 793 and Brennen v. Timrnins (1964), 105N.H. 464, 202 A.2d 229. In two cases wherein courtshave construed language almost. identical to that atissue here, additional evidence was allowed. In Graves v. Graves (1963), 42 Ill.App.2d 438, 192N.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 giftwas 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 giftto the otherjoint. tenant. In this case atbar, however, the evidence is exactly to the contrary. See Annot., Creationof Joint SavingsAccount.or - Savings Certificate as GifttoSurvivor (1972), 43 ALR3d 971, 1018. With regard to the second issue, Sanders1action 

### is not barred by the two-year statute of limitations, section 27-2-207, MCA. This statutedoes not begin to run until after there has been a demand and refusal of delivery. InterstateManufacturing Co. v. Interstate Products Co. (1965), 146Mont. 449, 408 P.2d 478. Here, the statutebegan to run atthe 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, 

### wellwithin the required time. The doctrine of laches has no application to the present

case. Laches requires negligence in the assertion of a 

### claim and existswhen there has been an unexplained delay of such duration as to render the enforcement of t.he right inequitable. Brabender v. KitManufacturing Co. (1977), 174Mont. 63, 67-68, 568 P.2d 547, 549. There is no evidence here thatMrs. Sanders

was negligent in prosecuting her claim. As stated above, shewaited 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 hisown 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 atthe time of its conversion with the interest from that time,

# .." Accord, Galbreath v. Armstrong (1948), 121Mont. 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 atthe statutory rate from November 30, 1978 to date of judgment, and costs.

Chief Justice

We concur:

## .............................. Justices

### Mr. JusticeJohn 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 summarizemy reasons for dissenting to the majority opinion, and then Iwill supportmy 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 samedepository instruments, she created a joint tenancy in the remainder of the funds, giving Leo B. Baker a rightof survivorship to all of the deposit if she predeceased him. By the creation of the joint tenancy,Marie Sanders gave Leo B. Baker thepower to acquire dominion over the entire accountby withdrawing the same. Leo B. Baker could have acquired the whole account by withdrawal, or by surviving Marie Sanderswhile the joint tenancywas in full force and effect. The legal result of the depository instrumentswas that Baker owned one-half of the deposited fundsby gift, and further interest as a joint tenantwith right of survivorship in the other half of the deposits. This joint tenancy, like any other, depended upon the coexistence of the fourunities of a joint tenancy: title, interest, time, and possession. A 

### joint tenant's right of survivorship isnot irrevocably fixed upon the creation of the estate. The survivorship rightbecomes 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 deathof any joint tenant, any action by one joint tenant which serves tosever orterminate the joint tenancy destroys theright of survivorship. Examples are:

a voluntary conveyance by one party of hisjoint interest; a partition proceedings; or, as inthiscase, thedemand or actionby Marie Sanders toterminate the title injoint tenancy. When a joint tenancy is severed, thepartieshold the property astenants incommon. (Ajoint tenancy isdistinguished from a tenancy by the entiretyby the fact that a tenancy by the entiretyrequires a fifthunity, that of person. Husbands and wives only can hold astenants by the entirety.) Here, Marie Sanders terminated the right of survivorship asto the funds rightfully belonging toher. One-half of the funds, belonging toher as a part of her estate, are subject todistribution by her

### will. Thus, Baker isentitled toone-half of the deposited fundsby gift. Hewould be entitled toone-half of the remaining half of thejoint tenancy funds had severance of thejoint tenancy occurred sincehe would then be a tenant incommon. But because thejoint tenancy was terminated, not severed, during the lifetime of Marie Sanders, he isnot entitled toany of theremaining half of the funds unless he participates as an heir inthe distribution of Marie's estate. The statuteof limitations applies against the action of Marie toset asidethegifttoLeo Baker. The statute didnot run againsther right toterminate the survivorship inthe joint tenancy, sinceinthiscase allthe funds were hers and shecould terminate the rightof survivorship at any 

### timeduring her lifetime.

### That ismy summary. Following aremy reasons: Marie Sandersmade a gift at the time that she executed the signaturedocumentswith the savings and loan association. The instrumentprovides in significantpart as follows: "It is agreed by the signatoryparties with each other and by the parties with the Association that any fundsplaced in

# . . . the account

# ... shallbe conclusively intended to be a gift and delivery at that time of such funds to the signatoryparty 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 interestas "oneowned by several persons in equal sharesby a title created by a singlewill or transfer, when expresslydeclared in thewill or transfer to be a joint tenancy 

# . . ."All that the law requires in a signature agreement establishing a joint tenancybank 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 fromwhat is normally or usually required in the establishmentof a 

### joint tenancy account. A sample of sufficient language is found inNichols, 2 Cyclopedia of Legal Forms, § 

### 2.1422 (1978): "Theaccount listed on reverse side of this signaturecard is a joint and several account. All fundsnow orhereafter deposited in account by either or any of depositors shall be the property of depositors jointlywith 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 otherwithdrawal 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 inNichols and that used by the savingsand loan association in the case atbar demonstrates

a vast difference: Nichols' form establishes a joint tenancy account; in the case atbar, 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 onlywhen one of the joint tenants deposits a disproportionate amount in the account that the signature card here comes intoplay. If each of two joint tenants contributed equally to a joint tenancy account, the signature card would have no gift application. In StateBoard of Equalizationv. Cole (1948),122 Mont. 9, 

### 16, 195 P.2d 989, 993,we held that, for inheritance tax purposes, themere 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 isnot set forth inCole. The discussion of the court is in general termswith respect to the creation of a joint tenancy. Based on Cole, however, and buttressed by the additional language in the signatureagreementwhich is before us in the case atbar, there canbe no doubt that the legal effect of the depositby Marie Sanderswas to make a completed gift of one-half of the deposit to Leo B. Baker. We said:

### "Ifthe intentwas 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 transferwas valid, notwithstanding the donor retained a right to draw upon the fund atwill. She thereby completelydivested herself of the title transferred to the defendant. Itdid not take effect upon her death, and was not enlargedby 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, 122Mont. at 17, 195 P.2d at 993. As to the intentofMarie Sanders,we have no indication in this record that she intended any other thing but the gift and the joint tenancy interestthat the signature form created. In Casagrandav. Donahue (1978), 178Mont. 479, 483-484, 555 P.2d 1286, 1288,we said: "Cole stood for the proposition that, inMontana, signing a signature card containing an agreement that the deposit ispayable 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),109Ariz. 236, 508 P.2d 66,wherein itwas held that themere form of a bank account isnot regarded as sufficient to establish the intent of the depositor to give another a joint interest in or ownershipof it. We find the Montana rule representsamore reliable manner for determining questions concerning the ownershipof jointbank 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 signaturecard. Additional evidence isunnecessary." In Casagranda, supra,we set out the form of the signature card used by that institution. 178Mont. at 484, 585 P.2d at 1288-1289. Itmerely 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 depositmade 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 astothe balance of the deposit made by Marie Sanders, above the one-half gifted, was that itwas deposited subjecttoa joint tenancy with right of survivorship between herself and Leo Baker. By the signature card, she gave Baker thepower toacquire dominion over the entire account by withdrawing the same. He could have alsoacquired right tothe entire account if shehad predeceased him because then thewhole of the joint tenancy property would have vested inhim as of themoment of her death. In order todeterminewhat should become of the onehalf of the deposited funds under the factsof this case, 

### we should examine the inherentqualitiesof a joint tenancy. Wehave referred above tosection 70-1-307, MCA, which states that a joint interestisone owned by severalpersons inequal shares. Our courthas said that the effect of that statuteistoinclude allof theincidentsof a joint tenancy estateunder common law. Hennigh v. Hennigh (1957), 131 Mont. 372, 377, 309 P.2d 1022, 1025. The cases reflect two divergentviews as tothe effect of the ownership interest of a joint tenant. One view holds that forthedurationof thejoint tenancy, each party owns the undivided whole of theproperty, and not a fractional part thereof. See Merrick v. Peterson (1980), 25 Wash.App. 248, 606 P.2d 700, 706. The better view inMontana, inview of the language of section 70-1-307, MCA, is thateach joint tenant owns an undivided equal shareof the joint tenancy estate, with a right tosurvivetothewhole of thejoint tenancy property if he is the ultimate survivor. Aswas noted inInReEstates of Carlson (1968), 201 Kan. 635, 443 P.2d 339, 347, a "jointtenancy" existswhere a single estateinproperty, real orpersonal, is owned by two or

### more persons, under one instrument or act of the parties; the grand incidentof 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. Jointbank accounts, however, present a problem because eitherparty can acquiredominion over thewhole of the property by simply withdrawing the funds. This was noted in Cole, supra, 122Mont. at 17-18, 195 P.2d at 993-994,where this Court said: "TheCalifornia courthas declared that the identical California statute created the same estate known as joint tenancy or common law



# .

# . . While the jointbank account does differ from other types of joint tenancies ithas 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 estatebecame a tenancy in common. The special featuredistinguishing joint tenancy from other joint interestswas the attribute of survivorship. So long as both co-tenants remained alive any transferby one co-tenant only resulted in a transfer of half theproperty. But either joint owner of a jointbank account by virtue of the special contract with the bank can acquire dominion over the entire accountby drawing a proper order on the bank. This feature is a special attributeof a joint bank account. Nevertheless a-jointbank account is otherwise subject

### --- to the same rules - 

### as otherjoint tenancies



# .

# .." (Emphasisadded.) Where, as here, the joint owners of a bank account have not acted to withdraw the fundsdisproportionately, 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 fourunities are essential to an estate in joint tenancy: unity of interest, unity of time,unity of title, and unity of possession. Tenhetv. Boswell (1976),133 Cal.Rptr. 10, 554 P.2d 330, 334. If an essentialunity is destroyed, the joint tenancy is severed and a tenancy in

common results. Tenhet, 331 P.2d at 334. Thus, in Firstwestside

### 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 tenantbecame 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 actwhich is inconsistentwith its continued existence. Shackeltonv. Sherrard (Okla. 19631, 385 P.2d 598, 902. Ordinarily the inconsistent actwill 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 fundswhich were in the joint tenancy portion of the deposit were hers. In other words, shemoved to end the right of survivorshipwhich was enjoyed at that time by Leo B. Baker. Her effort was more than a severance, itwas a termination of the joint tenancy by a party having a right to terminate because shewas 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 inArizona. The legal effect thereforewas to terminate the one-half portion of 

### the deposit thatwas subject to the joint tenancy rules. As for the statuteof 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 ormistake, or incapacity, none of which appear here. Even so, the limitation on those grounds is two years under section 27-2-203,MCA. The statutewas 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 formsand the statuteof limitations

ran from themoment of the execution of those instruments. With respect to the joint tenancy portion of the deposit, however, the statuteof limitationsdid not run or her action did not accrue until shemade demand under section 27-2-301, MCA. Therefore, thatportion of her claim is not outlawed. The action of themajority in resorting to parole evidence to set aside awritten instrument is a good example of why courts should be chary in allowing extrinsic evidence to overcome the legal effect of awriting. Assuming that parole evidence should be allowed here, itwould 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 inArizona in July 1978, is the only evidence available as

&VI~*Z, 

### to her

# -. She seems to be saying that the signature cardswere never signed by her: "Q. 

### Have you ever authorized him to appear on the savings certificatesas a joint tenant with you? A. No. "Q. 

### If thebank signature cards for these savings certificates showsyour signature on there, would it be your position that those signatureswould be forgeries? A. 

### Idon't know. I'd have to see it, look into them first. "Q. Am I correct, though, thatyouhave no knowledgewhatsoever ofmaking him your joint tenant? Letme 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 Iwould hold that, in this case, Leo B. Baker is entitled to summary judgment as to one-half of the deposited funds; Patsy JeanAnderson is entitled to the remaining one-half of the funds as the PersonalRepresentative of the estate of Marie Sanders. Again, for those reasons, Iwould affirm the ~istrict Court.

Mr. Justice Frank B. Morrison concurring: I concur in the 

### dissent.

## n