96-235

No. 96-235

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

IN RE THE ESTATE OF

LOU E. HILL,

Deceased.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Garfield,

The Honorable Kenneth R. Wilson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Duncan A. Peete, Moulton, Bellingham, Longo &

Mather, Billings, Montana

For Respondent:

Mark D. Parker, Nicole A. Temkin, Parker Law Firm,

Billings, Montana

Submitted on Briefs: November 21, 1996

Decided: February 6, 1997

Filed:

__________________________________________

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Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

 

 Appellant Louanne Woodford (Louanne) appeals the decision of

the Sixteenth Judicial District Court, Garfield County, holding

that two disputed bank accounts were the property of Lou E. Hillþs

probate estate, and further holding that Lou E. Hill (Hill) had not

intended to leave the disputed accounts to Louanne as his joint

tenant with right of survivorship. We reverse and remand.

 ISSUES

 The following issues are presented on appeal:

 1. Did the District Court err in concluding that the disputed

bank accounts were assets of Hillþs probate estate and not joint

accounts with rights of survivorship between Hill and Louanne?

 2. Did the District Court err in concluding that the

Inventory and Appraisement of Hillþs estate constituted a judicial

admission by Louanne that the disputed accounts were assets of

Hillþs probate estate?

 FACTS

 In 1984, Hill opened a joint checking account with his wife,

Margaret, at the Garfield County Bank. After Margaret died in

1985, Hill executed a new signature card for the account with his

daughter, Louanne. The new signature card was signed by both Hill

and Louanne as authorized signatories and listed the account as a

joint account with right of survivorship. Also in 1985, Hill and

Louanne opened a second checking account at the First National Bank

in Miles City. The signature card for this account also was signed

by both of them and indicated the account was a "joint" one. 

Louanne testified that the accounts were for her fatherþs use

during his lifetime. She further testified that her father told

her that, in the event of his death, she should pay his immediate

expenses from these accounts and then do as she pleased with the

balance of the money.

 In December 1990, Hill died testate in Garfield County. His

daughter, Louanne, and his son, Phil Hill (Phil) were named by his

will as co-personal representatives. Phil and Louanne were also

the major beneficiaries of Hillþs will. After Hillþs death,

Louanne closed the Garfield County Bank joint account and deposited

the remaining funds into an individual account. She also executed

a new signature card at the First National Bank in Miles City,

changing the joint checking account at that bank to an individual

account as well.

 During preparations for the probating of Hillþs estate, a

dispute arose regarding how the two bank accounts should be

treated. The attorney handling the estate notified Louanne and

Phil that he needed to know whether the accounts were estate

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property or Louanneþs property. The treatment of the accounts

dictated whether they would be included in the estateþs inventory

or not. Louanne contended that her right of survivorship meant the

funds in the accounts belonged to her, not to the estate. Phil

contended that Hill had not intended to gift Louanne with the

accounts prior to his death and, therefore, the accounts were

properly included as part of Hillþs estate.

 The attorney presented the parties with copies of the estate

inventory which did not include the accounts as part of the estate. 

At some point, the attorney redrafted the inventory and moved the

accounts from the joint property schedule to the estate property

schedule. Both Phil and Louanne initialed the changes and signed

the inventory, which was subsequently filed with the District

Court. 

 Phil then petitioned the District Court for an accounting of

the location and use of the accounts, which he contended were

estate property. In response, Louanne moved to dismiss Philþs

petition, asserting that the accounts were originally jointly owned

by her and her father and, since his death, were owned by her

alone. She therefore asserted that the estate was not entitled to

an accounting regarding the accounts. After a hearing, the

District Court concluded that the nature of the accounts was

ambiguous, justifying an inquiry into Hillþs actual intent. It

further concluded that Louanneþs name was placed on the accounts

for convenienceþs sake only, and that the accounts were estate

property. Louanne appeals. 

 STANDARD OF REVIEW

 This Court reviews a district courtþs findings of fact to

determine whether they are clearly erroneous. In re Estate of

Parini (Mont.1996), 926 P.2d 741, 743, 53 St.Rep. 1062, 1063

(citing Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904,

906). This Court reviews a district court's conclusions of law to

determine whether the court's interpretation of the law was

correct. Parini, 926 P.2d at 743 (citing Stratemeyer v. Lincoln

County (1996), 276 Mont. 67, 79, 915 P.2d 175, 182).

 As a general rule, construction and interpretation of written

agreements is a question of law for the court to decide. Klawitter

v. Dettman (1994), 268 Mont. 275, 281, 886 P.2d 416, 420 (citing

First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont.

148, 152-53, 818 P.2d 384, 387). Likewise, it is a question of law

whether ambiguity exists in a written agreement. Klawitter, 886

P.2d at 420 (citing Audit Services, Inc. v. Systad (1992), 252

Mont. 62, 65, 826 P.2d 549, 551).

 DISCUSSION

 1. Did the District Court err in concluding that the disputed

bank accounts were assets of Hillþs probate estate and not joint

accounts with rights of survivorship between Hill and Louanne?

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 The disposition of the disputed bank accounts in this case

depends on how the accounts are classified, whether as joint

tenancies with rights of survivorship; as tenancies in common; or

as personal accounts of Lou E. Hill. The District Court concluded

the accounts were the personal property of Lou E. Hill and,

therefore, became part of his estate upon his death.

 The creation of a joint tenancy (or joint interest) with right

of survivorship is governed by statute. Section 70-1-307, MCA,

provides:

 A joint interest is 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 or when granted or devised to executors or

 trustees as joint tenants.

Under the plain language of the above statute, a right of

survivorship may only be created by the inclusion of an express

declaration indicating the partiesþ intent to create it. A tenancy

in common is also statutorily defined:

 Every interest created in favor of several persons in

 their own right, including husband and wife, is an

 interest in common unless acquired by them in partnership

 for partnership purposes or unless declared in its

 creation to be a joint interest, as provided in 70-1-307,

 MCA.

Section 70-1-314, MCA.

 When the classification of a bank account is in dispute, the

court first looks at the signature card accompanying the account in

order to resolve the problem. Casagranda v. Donahue (1978), 178

Mont. 479, 483, 585 P.2d 1286, 1289 (citing State Board of

Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989). The

court must then determine whether the signature card complies with

the statutory requirements, set out above, for creating a joint

tenancy with right of survivorship or a tenancy in common. Estate

of Lahren (1994), 268 Mont. 284, 286, 886 P.2d 412, 413.

 a. The Garfield County Bank account.

 The signature card for the Garfield County Bank account lists

the account in the name of Lou E. Hill alone. However, both Hill

and Louanne signed as authorized signatories and the account is 

denominated as a "joint" account. In addition, the Garfield County

Bank signature card explicitly set forth a paragraph describing the

account as a "joint account, with right of survivorship." Both

Hill and Louanne again signed the signature card below this

paragraph, acknowledging that they had read and understood it.

 The District Court, however, focused on the fact that the

account was listed in the name of Lou E. Hill alone and, on that

basis, determined that the signature card was ambiguous. As noted

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above, the determination of whether an agreement is ambiguous is a

question of law which this Court reviews for correctness. 

Klawitter, 886 P.2d at 420. Given the statutory parameters for the

creation of a joint tenancy with right of survivorship, we conclude

that the District Courtþs determination of ambiguity was incorrect.

 Section 70-1-307, MCA, requires an express declaration of the

intent to create a joint tenancy. The Garfield County Bank

signature card expressly declared that the account created was a

joint tenancy with right of survivorship. Both Hill and Louanne

signed the signature card below the paragraph setting forth this

declaration. In so doing, they both indicated that they understood

and agreed that the account should carry a right of survivorship. 

The language used could hardly be clearer, and the failure of the

bank to list the account in both their names cannot overcome it. 

Since the signature card followed the statutorily mandated

procedure for creating a joint tenancy with right of survivorship,

there was nothing left for the court to construe. Therefore, the

District Courtþs determination of ownership of the Garfield County 

Bank account is reversed. 

 b. The First National Bank of Miles City account.

 Like the Garfield County Bank account signature card, the

First National Bank of Miles City signature card was marked as a

"joint" account. But unlike the other accountþs signature card, 

the signature card for the First National Bank of Miles City

account carried the names of both Hill and Louanne. And, unlike

the other account, the Miles City account lacked any specific

language indicating that the account was a joint tenancy with right

of survivorship. The only indication of intent is found in the

checking of the box next to the word "joint." Based on the lack of

any other indication on the signature card regarding how the

account should be treated, the District Court determined the card

was ambiguous, justifying an inquiry into the actual intent of the

decedent when the account was opened.

 However, as noted above, 70-1-314, MCA, expressly provides

that "[e]very interest created in favor of several persons in their

own right . . . is an interest in common" if it is not a

partnership asset or a joint tenancy with right of survivorship. 

No one argues that the disputed bank account was established as a

partnership asset, and the account cannot be a joint tenancy

because the necessary "express declaration" is lacking. Therefore,

the interest is a tenancy in common. The District Courtþs

acceptance of parol evidence to discern Hillþs intent does not take

into account the existence of this statute, which, if applied,

conclusively settles the issue of ownership.

 This conclusion is supported by this Courtþs decisions In re

Estate of Shaw (1993), 259 Mont. 117, 855 P.2d 105, and Lahren,

886 P.2d 412. In Shaw, this Court acknowledged that the various

earlier decisions in this area were to some extent inconsistent. 

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We therefore stated:

 Without attempting to reconcile all of the various cases

 dealing with the creation of joint tenancies that have

 come before this Court, we hold as follows:

 1. The creation of a joint tenancy (same as [a]

 joint interest) in property is by Montana statute. 

 Sections 70-1-307 and 70-1-314, MCA, mandate that if

 parties want to create a joint tenancy (same as [a] joint

 interest) in property, they must make an express

 declaration that they intend to create a joint tenancy or

 joint interest. Simply using words such as "or" or

 "and/or" without expressly using the words "joint

 tenancy," "joint tenancy with right of survivorship," or

 "joint interest" will not suffice to create a joint

 tenancy, absent a specific statute to the contrary.

 2. In the event the parties do not expressly

 declare that the ownership interest created in the

 instrument of title or transfer is a joint tenancy or

 joint interest or a partnership interest, then a tenancy

 in common or interest in common will be created.

Shaw, 855 P.2d at 111. See also Lahren, 886 P.2d at 413.

 In determining that an inquiry into the decedentþs actual

intent was warranted, the District Court relied on Seman v. Lewis

(1992), 252 Mont. 508, 830 P.2d 1294. While noting the

applicability of 70-1-307, MCA, this Court in Seman overlooked

the secondary applicability of 70-1-314, MCA, which mandates that

an interest held by more than one person, if it is not a

partnership asset or a joint tenancy with right of survivorship,

must be deemed a tenancy in common. To the extent that the

authorization of the use of extrinsic evidence in Seman contradicts

the dictates of 70-1-314, MCA, Seman is overruled.

 Since Hill and Louanne created a joint interest in the Miles 

City bank account which is not a joint tenancy with right of

survivorship or a partnership asset, the account must be construed

as a tenancy in common. Section 70-1-314, MCA. As such, each

holder of an interest in the account is entitled to a proportional

share of its proceeds. Therefore, the estate inherits Hillþs onehalf interest as his successor, while Louanne retains her one-half

share. 

 2. Did the District Court err in concluding that the

Inventory and Appraisement of Hillþs estate constituted a judicial

admission by Louanne that the disputed accounts were assets of

Hillþs probate estate?

 As a second basis for determining that the disputed accounts

should be included in the estate, the District Court noted that

Louanne herself had acquiesced to such a result when she allowed

the accounts to be listed as estate property on the estate

inventory, which she then initialed. The District Court concluded

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that the signing and filing of the estate inventory was a judicial

admission by Louanne that the accounts were estate property. The

court deemed Louanne to be bound by this judicial admission,

barring her from later arguing that the accounts were not estate

property. For her part, Louanne contends that she did not

understand the legal consequences of moving the accounts from one

schedule to another within the estate inventory. She asserts that

she believed at the time that the change was made for tax purposes

only and that it would not affect her claimed ownership of the

accounts.

 A "judicial admission" is "an express waiver made in court by

a party or his attorney conceding for the purposes of trial the

truth of some alleged fact." Kohne v. Yost (1991), 250 Mont. 109,

112, 818 P.2d 360, 362. (See also Blackþs Law Dictionary 48 (6th ed.

1990): "Judicial admissions are those made in court by a personþs

attorney for the purpose of being used as a substitute for the

regular legal evidence of the facts at the trial.") This Court,

however, has stated that judicial admissions need not necessarily

be made in court. Rather,

 [j]udicial admissions may occur at any point during the

 litigation process. They may arise during discovery,

 pleadings, opening statements, direct and cross-

 examination, as well as closing arguments.

Kohne, 818 P.2d at 362 (citation omitted).

 In this case, however, the initialing and signing of the

inventory was not done in the course of litigation but, rather, in

the course of probate. The events which in this case gave rise to

litigation must not be confused with the litigation itself; they

are two separate and distinct events. Therefore, Louanneþs

initialing of the estate inventory cannot be considered a judicial

admission because it did not occur during the course of litigation. 

 There is, however, a statutorily-created conclusive

presumption which Phil argues may be applicable. Section 26-1-601,

MCA, provides in part:

 The following presumptions are conclusive . . . (1) the

 truth of a declaration, act, or omission of a party, as

 against that party in any litigation arising out of such

 declaration, act, or omission, whenever he has, by such

 declaration, act, or omission, intentionally led another

 to believe a particular thing true and to act upon such

 belief.

Section 26-1-601(1), MCA. This is "the statutory codification of

the doctrine of equitable estoppel." Belehumeur v. Dawson

(D.Mont.1964), 229 F.Supp. 78, 86. Unlike the case law regarding

judicial admissions, the codified version of the equitable estoppel

doctrine does not require that the declaration, act, or omission

occur during litigation. Instead, it requires only that litigation

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arise out of the declaration, act, or omission. Equitable

estoppel, however, involves far more than the mere existence of a

declaration, act, or omission which gives rise to litigation.

 Equitable estoppel requires the proof of six separate

elements: 

 1) There must be conduct, acts, language or silence

 by the estopped party amounting to a representation or

 concealment of facts;

 2) these facts must be known to the estopped party

 at the time of the conduct, or at least the circumstances

 must be such that knowledge of them is necessarily

 imputed to the estopped party;

 3) the truth concerning these facts must be unknown

 to the other party claiming the benefit of the estoppel

 at the time they were acted upon;

 4) the conduct must be done with the intention, or

 at least with the expectation, that it will be acted upon

 by the other party, or under circumstances that it is

 both natural and probable that it will be acted upon;

 5) the conduct must be relied upon by the other

 party; and 

 6) the other party must in fact act upon it in such

 a manner as to change the other partyþs position for the

 worse.

Bache v. Owens (Mont.1996), P.2d , , 53 St.Rep. 1320,

1322-23 (citing Ducham v. Tuma (1994), 265 Mont. 436, 441, 877 P.2d

1002, 1006). Furthermore, "equitable estoppel is not favored and

will be sustained only upon clear and convincing evidence." Bache,

53 St.Rep. at 1322 (quoting Ducham, 877 P.2d at 1006).

 In this case, Phil argues that estoppel is appropriate to

prevent Louanne from claiming the disputed accounts as her own,

given that she formerly allowed their inclusion in her fatherþs

probate estate. Equitable estoppel cannot apply, however, because

Phil, acting on behalf of the estate, failed to prove each and all

of the necessary elements. In particular, Phil has not shown that

the estate relied on Louanneþs representation to its detriment. In

addressing this element, Phil claims a detriment arising from his

agreement to pay one-half of the estate taxes if Louanne included

the accounts in the estate. This does not translate into a

detriment to the estate, however. If the disputed accounts are

excluded, the estate taxes will be reduced accordingly. Phil, as

personal representative and as an heir, may well have an obligation

to allocate the taxes due on the estate and to pay some portion

thereof. This obligation, however, is not dependent on the issue

of which specific assets are or are not included in the estate.

 Phil also raises on appeal the applicability of the doctrine

of judicial estoppel. He acknowledges, however, that he "did not

plead or attempt to prove judicial estoppel" at the hearing before

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the District Court. It is well settled that this Court will not

hear an issue which is raised for the first time on appeal. 

Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100

(citation omitted). We therefore decline to address the possible

applicability of this separate but related doctrine.

 Reversed and remanded for proceedings consistent with this

opinion.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

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