No. 84-167 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE ESTATE OF 

ROBERT R. PALMER, Deceased. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hooks & Budewitz; Patrick F. Hooks argued, Townsend, 

Montana 

Moore, Rice, O'Connell & Refling; Perry J. Moore, 

Bozeman, Montana 

For Respondent: 

Drysdale, McLean, Screnar & DiRe; Roger Scouten & 

James McLean argued, Bozeman, Montana 

- 

Submitted: May 23, 1985 

Decided: October 21, 1985 

Filed: OCT 2.i j985 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

A motion to determine the existence of a joint tenancy 

was filed in the probate proceedings in the District Court of 

Park County. An appeal was taken from the order determining 

that the checking account, cattle, cattle brands and brokerage account did not pass to the surviving partner in his 

capacity as surviving joint tenant. We affirm the District 

Court. 

The issues are: 

1. Did the District Court err in holding that the bank 

checking account in the names of William Palmer and Robert 

Palmer as joint tenants was partnership property? 

2. Did the District Court err in holding that the 

cattle branded with a brand registered in the names of "William Palmer or Robert Palmer" were partnership property? 

3. Did the District Court err in holding that a brokerage account, registered in the name of William Palmer for 

which Robert Palmer signed a document as a joint tenant, was 

partnership property? 

Following are pertinent facts contained in the uncontested findings of fact of the District Court. 

Robert Palmer (Robert) died on November 8, 1981. For 

many years prior to Robert's death, he and his brother, 

William, operated and conducted a partnership called "Palmer 

Brothers." The partnership was engaged in the business of 

raising livestock and feed, conducting a feedlot operation, 

and buying and selling cattle on ranchlands about 10 miles 

northeast of Livingston in Park County, Montana. William and 

Mildred, his wife, resided on the ranch for many years prior 

to Robert's death, while Robert resided in Livingston. 

Robert married Constance on September 21, 1979, and Constance 

is Robert's sole heir at law. For many vears prior to 
Robert's death, Robert and William owned a checking account 

in First Bank Livingston, in which they deposited a31 receipts and the proceeds from cattle sales and other income, 

and from which they paid all partnership debts and obligations. Additional facts will be set forth in our discussion 

of the checking account issue. William and Brad Palmer, son 

of William, claimed the proceeds in the checking account at 

the time of Robert's death as surviving joint tenants. 

Constance contends that the balanc~ is a part of the partnership assets and should be accounted for in the partnership. 

Because of the - or brand certificate, William claims that the 

brands and any cattle carrying them passed to him as surviving joint tenant, and to Mildred as his successor in interest. Constance claims the property is part of the 

partnership's assets and should be accounted for in the 

partnership. In 1979, William opened a commodity or brokerage account with Merrill Lynch. William claims the Merrill 

Lynch account as his sole property, or as surviving joint 

tenant if the account is found to be joint, while Constance 

claims the account is part of the partnership assets. 

The District Court pointed out that William testified 

that his relationship with Robert was very close and they got 

along well both as friends and as business partners until the 

last few years of Robert's life, when his personality changed 

and he did erratic things. Constance testified that Robert 

and William were not friendly for several years before Robert ' s death, a lthough she acknowledged that Robert named 

William as personal representative in his 1977 will. Another 

brother, Maro Palmer, testified that Robert had told him 

William was trying to take the business away from him and 

that Robert's behavior had not changed until a few weeks 

before death. Brad Palmer testified that William and Robert 
got along well with only normal disagreements until the last 

year or so when Robert became unable to make decisions and 

lost his judgment. A neighboring rancher testified that the 

brothers got along well and he never saw any disagreement. 

The District Court found that the partnership income tax 

returns for 1972 through 1981, with 1974 missing, showed that 

the partnership paid all of the expenses of operating the 

ranch, including huge sums for purchasing and feeding livestock, interest on loans, taxes, vet carp and trucking, from 

the Palmer Brothers' checking account; that all partnership 

income, including profits from cattle sales, was deposited in 

that account; and that the partners split equally any net 

profits or losses. The District Court further found that 

neither brother had any individual source of income. 

The evidence established that the bank account was 

opened in joint tenancy form in 1947, and the Palmer Brothers' partnership commenced business in 1949. 

Following Robert's death on November 8, 1981, Rrad 

Palmer was appointed as personal representative of his estate 

under Robert's will of February 7, 1977. Constance, as sole 

heir of Robert, petitioned the court to terminate the appointment of Brad as personal representative. She was appointed as personal representative of the estate of Robert on 

February 24, 1982, and continued in that capacity. William 

filed a petition to determine joint tenancies in the probate 

proceeding. A hearing was held, testimony was submitted and 

evidence was introduced by both sides. By Order Ruling on 

Motion dated March 7, 1984, the District Court denied the 

motion of William to determine the checking account, cattle, 

cattle brands and brokerage accounts passed to him as surviving joint tenant. The court further determined that all of 

such items of personal property were the partnership property 
of Palmer Brothers and were to be accounted for by William as 

surviving partner, or his successors, to Constance, the 

personal representative of Robert's estate. William and 

Mildred, his wife and successor, appealed from the Order. 

The issues presented require us to consider the provisions of the Uniform Partnership Act as adopted in 1947. 

Because there are few Montana cases which constitute authority on the legal issues before us, we have found it necessary 

to review the historical. background of partnerships and 

partnership property. 

John Coll.yerls - A Practical Treatise ----- on the Law of Partnership, originally published in England in 1832, contains an 

illuminating discussion of the history of the law of partnership which was well developed by cases in both England and 

the United States by 1830. Based upon a number of English 

and American cases cited in the footnotes, the treatise 

discusses the treatment of partnership property upon the 

death of one partner. The analysis i.s a clear forecast of 

the Uniform Partnership Act approach as developed almost 100 

years later: 

From what has been already observed as to 

the want of survivorship among partners, 

it follows, that, upon the decease of one 

of several partners, his share o+ the 

movable stock and effects of the partnership, subject to the partnership debts, 

devolves to his personal representatives, 

who thereupon become, both at law and in 

equity, tenants in common with the surviving partners. Although, for the 

purpose of encouraging trade, it is held 

that the harsh doctrine of the jus 

accrescendi, which is an incident of 

joint tenancy at the common law, does not 

apply to the partnership property, yet on 

the decease of one of the partners, as 

the surviving partner stands chargeable 

with the whole of the partnership debts, 

the interest of the partners in the 

partnership property shall be deemed so 

far a joint tenancy as to enable the 
surviving partner to take the property by 

survivorship, for all purposes of holding 

and administering the estate, until the 

effects are reduced to money and the 

debts are paid. When the debts are all 

paid, the effects of the partnership 

reduced to money, and the purposes of the 

partnership accomplished, the surviving 

partner shall be held to account with the 

representatives of the deceased for his 

just share of the partnership funds. 

J. Collyer, A Practical Treatise on the Law of Partnership - ---- 

§ 129, at 117-18 (4th Amer. ed. 1853) (hereinafter cited as 

Collyer). In substance, this provides that upon death of a 

partner, his share of partnership property, subject to partnership debts, passes to his personal representative who 

becomes a tenant in common with the surviving partner. 

Further, because the surviving partner is chargeable with the 

whole of the partnership debts, the surviving partner is 

deemed to take the property by survivorship in order to 

administer the partnership. Finally, when the debts are paid 

and the partnership purpose is accomplished, the surviving 

partner must account to the personal representative of the 

deceased partner for his just share of that which remains. 

The cases referred to in Collyer emphasize the contradiction between the cases decided in equity courts, where 

forms of ownership did not control, and courts of law, where 

the form of ownership of property as tenants in common or as 

joint tenants with right of survivorship controlled. In a 

partnership, even though the property was held as joint 

tenants, in equity survivorship would not be allowed notwithstanding the form of the deed. The treatise states as 

follows: 

Where lands are conveyed to certain 

persons, as joint tenants, for the purposes of a trade or an adventure, in * 

equity there --- will be no survivorship in 

such property, notwithstanding the form 

of the conveyance. 
Collyer, S 134 at 122 (emphasis supplied). The text d~velops 

this theory further, stating at 5 135: 

The rules and principles by which partners hold real estate, purchased by them 

with partnership funds and for partnership purposes, have been considerably 

discussed in America, . . . Several late 

decisions in Massachusetts have established the doctrine for that State, that 

when real estate is purchased by partners, with the partnership funds, for 

partnership use and convenience, although 

it is conveyed to them in such a manner 

as to make them tenants in common, yet, 

-- in the absence -- of an express agreement, 

- or of circumstances, showing an intent 

- that-such estate shall be held for their - --- 

separate - use, --- it will be considered - and 

treated, in equity, as vesting --- in them in 

their parFnership capacity, clothed with 

an implied trust, that they shall hold it 

until- the purposes for which it was so 

purchased shall be accomplished, . . . Upon the dissolution of the partnership, 

by the death of one of the partners, the 

survivor has an equitable lien on such 

real estate for his indemnity against the 

debts of the firm, and for securing the 

balance that may be due to him from the 

deceased partner, on settlement of the 

partnership accounts between them; and 

the widow and heirs of such deceased 

partner have no beneficial interest in 

such real estate, . . . until the surviving partner is so indemnified. 

Collyer, S 135 at 123-24 (emphasis supplied). The use of 

equitable principles to disregard the legal form of joint 

tenancy ownership or tenancy in common ownership was clearly 

stated in the case of Hoxie v. Carr (1832) , 1 Sumner 173, by 

Mr. Justice Story: 

"In cases where the real estate is purchased for partnership purposes, and on 

partnership account, it is wholly immaterial, in the view of a court of equity, 

in whose name or names the purchase is 

made, whether of one partner or all; 

whether in the name of a stranger, or of 

one of the firm. In either case, let the 

legal title be vested in whom it may, it 

is in equity deemed partnership property, 

and the partners are the cestuis que 

trust. A court of law may, nay, must, 

view it, in geveral, only according to 

the legal title." 
See Collyer, § 135, at 125. This doctrine that real property 

acquired with partnership funds will be regarded in equity as 

partnership property was affirmed in Connecticut and Virginia. The author emphasizes that these principles are founded 

on sound policy and obvious justice and that their correctness appears incontestable. 

Joseph Story, in his Commentaries ---- on the Law of Partnership, stated the rules under which partnership real and 

personal property are held by the surviving partner as trustee notwithstandinq legal title: 

But, however the title may stand at law, 

or in whosesoever name or names it may 

be, the real estate belonging to the 

partnership will in equity he treated, as 

belonging to the partnership, like its 

persona1 funds, and disposable and distributable accordingly; and the parties, 

in whose names it stands, as owners of 

the legal title, will be held to be 

trustees of the partnership, and accountable accordingly to the partners, according to their several shares and rights 

and interests in the partnership, as 

cestuis que trust, or beneficiaries of 

the same. Hence in equity, in case of * - 

the death of one partner, there is no 

survivorship in the real estate of the 

partnership; but his share will go to his 

proper representatives . . . 

Upon this point there has been a diversity of judicial opinion, . . . some judges 

holding, that in such a case it retained 

its original character of real estate, 

and passed to the heirs or devisees 

accordingly; and others holding, that it 

was to be treated throughout, as partnership property, and therefore as 

personalty, and belonged to the executor 

or administrator. The doctrine under 

these circumstances must be considered, 

as open to many distressing doubts. 

J. Story, Commentaries ---- on the Law of Partnership §§ 93 & 94 

at 138-40, (5th ed. 1859) (hereinafter cited as Story). 

As is apparent, the doctrine was not universally accepted. Nonetheless Joseph Story further concluded that there 
was no reason to distinguish between realty and personal 

property so far as the partners are concerned: 

Nor is there in reality, as between the 

partners themselves, any difference, 

whether the partnership property, held 

for the purposes of the trade or business, consists of personal or movable 

property, or of real or immovable property, or of both, so far as their ultimate 

rights and interests therein are 

concerned. 

Story, $ 92 at 137. 

This rationale was restated by James Kent in 1873: 

(2) Stock in Land--If partnership capital be invested in land for the benefit 

of the company, though it may be a joint 

tenancy in law, yet equity will hold it 

to be a tenancy in common, and as forming 

part of the partnership fund; -- and the 

better opinion would --- seem to be, that 

equity will consider the person in whom 

the legal estate is vested as trustee for 

the whole concern, and the property will 

be entitled to be distributed as personal 

estate. 

3 J. Kent, Commentaries "37 (emphasis supplied). 

In our present case, Will-iam based his claim primarily 

on the form of ownership of the joint tenancy checking account and the wording contained in a brand certificate. Had 

this case been considered in England or the United States 

prior to 1900, the predominant view would have been that 

leqal title alone could not control and that equity would 

properly consider the assets to be under the control of the 

surviving partner for purposes of winding up the partnership, 

with William's claim being limited to his share of the partnership assets after the winding up and dissolution. 

The foregoing is a summary of the law of the United 

States in existence at the time of the promulgation of the 

Uniform Partnership Act in 1914. That Act was adopted in 

Montana in 1947. We will now review the pertinent portions 

of the Uniform Partnership Act as adopted in Montana. 
Section 35-10-203, MCA, contains a critical definition 

of partnership property: 

Partnership property. (1) All property 

originally brought into the partnership 

stock or subsequently acquired by purchase or otherwise on account of the 

partnership is partnership property. 

(2) Unless the contrary intention appears, property acquired with partnership 

funds is partnership property. 

Constance contends that under this section, all of the property in question was acquired with partnership funds and is 

therefore partnership property. 

Section 35-10-501, MCA, spells out the property rights 

of a partner: 

Classification of property rights of a 

partner. The property rights of a partx 

ner are : 

(I) his rights in specific partnership 

property; 

(2) his interest in the partnership; and 

(3) his right to participate in the 

management. 

It then becomes necessary to consider the nature of a partner's interest in specific partnership property. The nature 

of a partner's rights in specific partnership property is 

spelled out in S 35-10-502, MCA: 

(1) A partner is co-owner with the other 

partners of specific partnership property 

holding as a tenant in partnership. 

(2) The incidents of this tenancy are 

such that: 

(a) A partner, subject to the provisions 

of this chapter and to any agreement 

between the partners, has an equal right 

with the other partners to possess specific partnership property for partnership purposes but has no right to possess 

such property for any other purpose 

without the consent of the other 

partners. 
(d) On the death of a partner that 

partner's right in specific partnership 

property vests in the surviving partner. 

. . . Such surviving partner or partners 

. . . has no right to possess the partnership property for any but a partnership purpose. 

(e) Provided the proceeds of a deceased 

partner's interest are included in the 

assets of the decedent's estate, such 

property is not subject to a lien of the 

surviving spouse for his or her elective 

share or a lien for or allowances to 

surviving spouses, heirs, or next of kin. 

The nature of the partner's interest in the partnership is 

his share of profits and surplus. Section 35-10-503, MCA, 

provides : 

Nature of partner's interest in the 

partnership. A partner's interestTn 

partnership is his share of the profits 

and surplus and the same is personal 

property. 

The dissolution and winding up of the partnership are 

also controlled by the Act. Section 35-10-602, MCA, states: 

Partnership - not terminated dissolution. On dissolution the Qartnershi~ is 

not terminated but continkes until the 

winding up of partnership affairs is 

completed. 

With regard to the causes of dissolution which are 

pertinent for this case, S 35-10-603 (4) , MCA, specifies that 

"the death of any partner" is a cause for dissolution of the 

partnership. In the present case, the death of Robert caused 

a dissolution of the partnership. 

With regard to the winding up of the partnership by 

William as surviving partner, S 35-10-609, MCA, states: 

Right to wind 9. Unless otherwise 

aqreed, the partners who have not wronqfully dissofved the partnership or the 

legal representative of the last surviving partner, not bankrupt, has the right 

to wind up the partnership affairs. 

However, any partner, his legal representative, or his assignee, upon cause 

shown, may obtain winding up by the 

court. 
Following a dissolution, a partner has a right to have partnership property applied to discharge partnership liabilities 

and the surplus paid in cash to the respective partners. 

Section 35-10-610, MCA, states in pertinent part: 

Rights of partners after dissolution to 

a~~lication of ~artnershi~ ~ro~ertv -- or to 

cLhtinue busineks. (1) hhen ;'lissglution 

is caused in any way, except in contravention of the partnership agreement, 

each partner as against his copartners 

and ail persons claiming through-them in 

respect of their interests in the partnership, unless otherwi-se agreed, may 

have <he partnership property applied to 

discharge its liabilities and the surplus 

applied to pay in cash the net amount 

owing to the respective partners. . . . 

Section 35-10-612, MCA, sets forth the rules for settling accounts and distribution after dissolution. In substance, as here applicable, the assets of the partnership are 

to be applied first to the creditors of the partnership, 

second to any liabilities owing to the partners other than 

for capital and profits, third to partners in respect of 

capital and last to the partners in respect of profits. 

With this background, we will now consider the specific 

issues raised by the parties. 

Did the District Court err in holding that the bank 

checking account in the names of William Palmer and Robert 

Palmer as joint tenants was partnership property? 

The District Court's findings show that at Robert's 

death, FJil'l-iam and Robert owned a checking account in which 

they deposited all receipts and proceeds from cattle sales 

and all other income and from which they paid all partnership 

debts and obligations, including checks to themselves for 

salary and other profits. The checks and deposit slips for 

the account were identified onlv as "Palmer Brothers." The 

signature card for that account was signed by William and 
Robert in 1947 upon forms showing that this was a joint 

tenancy account with rights of survivorship. The checking 

account was the sole hank account used by the partnership. 

Several years before Robert's death, Brad Palmer also executed the signature card. As a result, there were three signatures shown on the card at the time of Robert's death. 

In arguing that the court erred in holding that the bank 

account was not joint tenancy property, William argues that 

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

9, 195 P.2d 989, the signing of a joint tenancy signature 

card is sufficient to settle the intent on the part of the 

donor to make a gift in a joint tenancy. Following that 

case, William relies upon Casagranda v. Donahue (1978), 178 

Mont. 479, 585 P.2d 1286 in which this Court stated that 

where intention is clearly expressed on the face of the 

signature card, additional evidence is unnecessary. 

William also relies on the recent case of Anderson v. 

Eaker (1382), 196 Mont. 49, 641 P.2d 1035, where we held that 

statements on signature cards were not conclusive where a 

depositor during her lifetime raised the issue of the ownership of the funds in a joint tenancy account. We therefore 

concluded that additional evidence may be examined to ascertain the true intent of the parties. In Anderson, the depositor had made written demand for the return of the deposit 

books and had filed suit to quiet title to the funds prior to 

the depositor's death. William then argues that the proper 

conclusion should be that the signature card is determinative 

of intent to create a joint tenancy unless one party raised 

the issue by affirmative action during his lifetime. William 

points out that the record does not show any affirmative act 

on the part of Robert to terminate the joint tenancy prior to 
his death, and therefore concludes that the joint tenancy in 

the checking account should be upheld. 

Constance in turn contends that there is substantial 

evidence to support the findings of the District Court that 

a 1 1 of the moneys in the account were partnership funds, and 

that the account was used exclusively for more than 30 years 

as the only partnership account. Citing Jensen v. Jensen 

(Mont. 1981), 629 P.2d 765, 38 St.Rep. 927, and Speer v. 

Speer (Mont. 19821, 654 P.2d 1001, 39 St.Rep. 2204, Constance 

argues that the court will not substitute its judgment for 

the trier of fact, and we will consider only whether substantial credible evidence supports the findings and conclusions, 

leaving the credibility of witnesses and weight accorded to 

their testimony to the District Court. 

Our review of the evidence discloses that there is clear 

and substantial evidence to support the findings on the part 

of the District Court. As a result, we agree with the conclusion of the District Court that the checking account was a 

partnership checking account and that the funds in the account were partnership funds. This is consistent with 

§ 35-10-203, MCA, which provides that property acquired with 

partnership funds is partnership property. As a result, we 

also conclude that the partnership account is to be classed 

as specific partnership property under the provisions of 

§ 35-10-501, MCA, and following sections. 

William contends that the evidence is insufficient to 

overcome the joint tenancy form of the account as created in 

1947 by the signature card. We do not agree with that contention. Partnership property by its very nature must be 

treated differently than property of individuals. Section 

70-1-306, MCA, states there are three types of ownership of 

property by several persons: 
The ownership of property by several 

persons is either of: 

(1) joint interests; 

(2) partnership interests; 

(3) interests in common. 

As pointed out in the history regarding partnership property, 

the rule established in courts of equity after several hundred years of experience was to disregard the form of ownership of property acquired by partners and treat property 

acquired by the partnership with partnership funds as property of the partnership. That certainly is the foundation for 

provisions of the Uniform Partnership Act such as 

S 35-10-203, MCA, which provides that all property acquired 

by purchase or otherwise on account of the partnership is 

partnership property. That conclusion is strengthened by 

5 35-10-502, MCA, which provides that a partner is a co-owner 

of specific partnership property holding as a tenant in 

partnership. In the present fact situation, Robert's share 

in specific partnership property vested in William upon 

Robert's death, and William had no right to possess the 

partnership property "for any but a partnership purpose." 

This contradicts the suggestion that the surviving partner 

becomes the owner of the property by survivorship in his own 

right and independent from the partnership. 

Succeeding sections spell out how a surviving partner 

must apply funds from a partnership account to various liabilities of the partnership. After the partnership liabilities have been discharged, the surplus is divided between the 

partners. In this case, the surplus would be distributed 

one-half to the persona1 representative of Robert's estate 

and the remaining one-half to the successor in interest of 

William. 
It is clear that the incidents of the property rights in 

the bank account as a tenant in partnership are directly 

contradictory to the rights which a joint tenant with right 

of survivorship has in a joint tenancy account. Although 

5 35-10-203, MCA, specifies that property acquired with 

partnership funds is classed as partnership property "unl~ss 

the contrary intention appears," we conclude that the 1947 

execution of a joint tenancy signature card does not constitute sufficient evidence of a contrary intention. That would 

have been an appropriate conclusion over 100 years ago and is 

consistent with the provisions of the Uniform Partnership Act 

today. 

We affirm the holding of the District Court that the 

checking account did not pass to William and Brad, as the 

surviving joint tenants. 

I11 

Did the District Court err in holding that the cattle 

branded with a brand registered in the names of "William 

Palmer or Robert Palmer" were partnership property? 

William argues that because the cattle brands were 

registered in the name of William - or Robert, a joint interest 

was created, resulting in joint tenancy ownership of the 

cattle themselves. 

In its findings of fact, the District Court pointed out 

that Robert and William owned two livestock brands which 

originally were registered to William - and Robert. In 1971, 

the brands were changed to William - or Robert. The court 

found that during Robert's lifetime the partn~rs branded all 

of the partnership cattle with one or the other of these two 

brands, and that all of the cattle were acquired through 

partnership funds. 
We conclude that the same rationale applies here as with 

the checking account. Here it is clear that the cattle were 

acquired with partnership funds and are to be classed as 

partnership property, unless a contrary intention appears. 

William Palmer contends that his testimony evinces a 

contrary intention: 

Q. Bill, what is your understanding of 

the nature of the ownership of these 

brands that you had with Bob, did you 

hold them as ioint tenants or as tenants 

in common? 

A. Joint tenants. 

Q. What is your understanding of the 

effect of a joint tenancy ownership of 

property? 

A. That we had them, and in case one 

person, the survivor, had the total. 

Q. Can you tell me what word or words in 

the registration certificate indicate to 

you that the brands were held as joint 

tenants rather than tenants in common? 

A. Or rather than and. 

Q. Can you tell me how that word came to 

be there? 

A. Yes. That was put there rather than 

- and so if anything happened to one or the 

other it would go to the surviving 

person. 

Notwithsta-nding the wording of the brand certificate, the 

District Court found William Palmer's testimony inconsistent 

and unbelievable. Conclusion of law E states: 

It is anomalous and inconsistent for 

William Palmer to contend: (1) that the 

partnership assets of little value belonged to the firm, but that those having 

any considerable value were owned as 

joint tenants with right of survivorship; 

and (2) that assets purchased with partnership funds and used by the firm were 

not partnership property. 
The District Court concluded that it was the intent of the 

partners that the partnership property would not pass to the 

surviving joint tenant. Conclusion of law C states: 

It was the apparent intent of the partners, William and Robert Palmer, as 

determined from their actions and the use 

made of the checking account, cattle, 

cattle brands and brokerage accounts, 

that such property was and continued to 

be partnership assets, that it did not 

pass to William J. Palmer as surviving 

joint tenant, but must be accounted for 

forthwith to the persona 1 representative 

of Robert's estate in the winding up and 

dissolution of the partnership. 

We hold there is substantial credible evidence to support the 

court's conclusions. 

We affirm the order of the District Court which determined that the cattle and cattle brands were partnership 

property. 

IV 

Did the District Court err j.n holding that a brokerage 

account, registered in the name of William Palmer for which 

Robert Palmer signed a document as a joint tenant, was partnership property? 

William argues that the opening information sheet for 

the brokerage account demonstrated that William was to be the 

owner. He further points out that Robert and William's 

signatures appeared on a "Authorization to Transfer Customer's Segregated Funds" in joint ownership form, indicating an 

intention on both of their parts that the brokerage accounts 

were to be joint accounts. We find it unnecessary to settle 

this factual question. 

The District Court found that the original deposits to 

the original account as well as all subsequent deposits were 

made with funds withdrawn by William from the partnership 

checking account and not from any of William's personal 
money. That finding is not disputed. In addition, the court 

found there was no evidence to indicate Robert ever made 

similar or equal withdrawals to establish brokerage accounts 

or other investments in his individual name. We again conclude that as to the brokerage account, as property acquired 

with partnership funds, it became partnership property unless 

a contrary intention appears. William failed to show such a 

contrary intention. 

We conclude that mere form of ownership of the brokerage 

account, either in the name of William alone or in the name 

of William and Robert as joint tenants, would not be sufficient to show such a contrary intention. 

Following the rationale established for the other property, we affirm the order of the District Court in its determination that the brokerage accounts were partnership 

property and did not pass to William as a surviving joint 

tenant. 

We also affirm the holding of the District Court that 

all of the above-described items of property are determined 

to be partnership property of Palmer Brothers which are to be 

regularly accounted for by the surviving partner, or his 

successor in interest, to the personal representative of the 

estate of Robert. 

We concur: 

Chief Justice 
Justices 
Chief Justice J. A. Turnage dissenting: 

I would reverse the District Court and hold that on 

November 8, 1981, the date of Robert Palmer's demise, his 

interest in the checking account, cattle and cattle brands 

passed to his brother, William Palmer, by right of 

survivorship. 

The majority opinion states that § 35-10-203, MCA, 

contains a critical definition of partnership property: 

Partnership property. (1) All property 

originally brought into the partnership 

stock or subsequently acquired by purchase or otherwise on account of the 

partnership is partnership property. 

(2) Unless the - contrary intention 9- 

pears, property acquired with partner- 

_shie. funds is partnership p . - roperty . [Emphasis supplied.] 

The provision set forth in subparagraph (2) , under the 

facts of this case, is not only critical but controls. The 

joint tenancy with right of survivorship checking account 

between Robert and William was established in 1947 and the 

two livestock brands were registered in the names of William 

or Robert as joint tenants with right of survivorship in 

1971. 

There could be no clearer evidence that Robert and 

William intended to pass this property by right of survivorship. The provision of § 35-10-203(2), MCA, has clearly been 

satisfied and their contrary intention has been established. 

If the partners had intended to hold this property other than 

as joint tenants with right of survivorship they could have 

accomplished this by the simp1.e act of closing the bank 

account and reestablishing the account as one held by them as 

tenants in common; likewise, the livestock brands certifi- 
cates could. have been reissued designating them as tenants in 

common. 

In Montana holding title to property in joint tenancy 

with right of survivorship is not only common throughout the 

State but is also a very important and convenient manner in 

which owners of property may hold title thereto, and it 

provides a convenient method that offers certainty as to who 

will succeed to the property upon demise of a joint tenant as 

well as providing a less expensive means of transferring the 

decedent's property without expense of probate. Most certainly, many owners of partnership ranch, farm and small 

business in Montana have utilized the joint tenancy with 

right of survivorship method of holding property. 

The majority opinion wil-1 invite uncertainty and doubt 

as to the right of ownership to this property upon the demise 

of one of the joint tenant with right of survivorship owners, 

which in turn will invite litigation that most. certainly will 

follow. 

This case should be reversed and remanded with di.rections to enter an order determining that the checking account, livestock and livestock brands passed by right of 

survivorship to William Palmer. 

Chikf Justice 

Mr. Justice L. C. Gulbrandson: 

I join in the dissent of Mr. Chief Justice Turnage. 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

Counsel for appellant and respondent have focused on the 

question of whether the assets here involved are partnership 

assets. Such a determination is not dispositive. 

Because the parties have presented the case to the 

District Court on the issue of whether the disputed property 

was partnership property or joint tenancy property, the 

District Court decided the case without addressing the true 

issue. This Court, in its majority opinion, does deal with 

the issue upon which the case turns, but, in my opinion, 

erroneously relies upon ancient authority. 

The question involved in this case is whether partnership assets can be placed in a bank account so that, upon the 

death of one partner, the assets will go by survivorship to 

the other partner. The clear weight of American authority is 

that partnership assets can be passed by survivorship. I 

will concede that John Collyer's, - A Practical Treatise -- on the 

-- Law of Partnership, originally published in England in 1832, 

is generally supportive of the majority's position. Further 

support may he found in Hoxie v. Carr (1832), 1 Sumner 173, 

12 Fed.Cas. 746. The textual reference and the case 

authority involve real estate. However, the majority 

correctly notes that J. Story, Commentaries ---- on the Law of 

Partnership, asserts that the same law applies to personalty. 

This treatise, the most modern authority cited by the 

majority opinion, was published in 1859. 

At the time that majority's treasured treatises were 

published, Blacks were chattels and women could neither own 

nor convey real estate. I find it useful to examine some 

cases decided in this century. District of Columbia v. Riggs 

National Bank of Washington, D.C. (D.C.App. 1975) , 335 A. 2d 

238, stands for the proposition that partnership property can 
he left by a survivorship. In that case, Waverly and Lulie 

Dickson, brother and sister, formed a partnership in 1935. 

Waverly predeceased his sister by three years. When Lulie 

died, the partnership books carried three savings accounts, 

with deposits totaling $11,036.65, as partnership assets. 

Those funds were on deposit in the names of Luli~ and 

Waverly, as joint tenants. 

In holding that those assets became Lulie's by right of 

survivorship on Waverly's death, the District of Columbia 

Court of Appeals stated: 

The UPA sets forth rules for distributing 

a partnership's personalty . . . after 

dissolution. D.C. Code 1973, SS 41-328 

to 41-342. The method set forth there, 

however, is not exclusive. Subject to 

the rights of creditors, and in the absence of fraud, partners may agree to a 

distribution of the property on dissolution which is different from that which 

would obtain under the UPA in the absence 

of an agreement. See Ensor v. Ensor, 270 

Md. 549, 554, 312X2d 286, 289 (1973) ; 

Anderson v. Anderson, 215 Md. 483, 

488-89, 138 A.2d 880, 883 (1958); Wallner 

v. Schrnitz, 239 Finn. 93, 95-96, 57 

N.W.2d 821, 823 (1953). 

In this case, there is absolutely no evidence to refute 

the intent of the partners to leave their funds in joint 

tenancy with right of survivorship. The account itself 

provides evidence that they did in fact intend to leave the 

funds in such a manner. When the evidence stands unrefuted, 

the survivorship disposition must be respected. The District 

of Columbia court, in F.jjggs National Bank, supra, addressed 

this question and said: 

We conclude that if partners maintain 

savings accounts as joint tenants, and 

there is evidence that they understood 

the consequences of joint tenancy, effect 

will be given to the right of survivorship. [citations omitted] 
Also, there is no indication that Lulie 

and Waverly--both astute business 

people--did not understand and intend the 

survivorship consequences of joint 

tenancy. 

The case of Stroh v. Dumas (Vt. 1951), 84 A.2d 408, is 

factually very similar to the case at bar. William Pelton 

and John Dumas formed a partnership to engage in the business 

of buying and selling cattle. The initial money for the 

partnership was provided by Pelton in 1938, and deposited in 

a checking account entitled llW. H. Pelton, Special Account." 

In 1943, Pelton and Dumas signed a signature card stating "W. 

H. Pelton (Special Acct) subject to withdrawal of either and 

payable to survivor W. H. Pelton, John H. Dumas June 11, 

1943. l1 The partnership continued over the next several- years 

to deposit its funds in and pay its bil1.s from that account. 

Upon Pelton Is death, the Supreme Court of Vermont held that 

the checking account became the sole property of the 

surviving partner, Dumas, stating: 

No rights of creditors are involved. As 

between themselves, the partners had the 

right to make such disposition of the 

partnership property as they deemed fit. 

40 Am.Jur. 373; 47 C.J. 770; 68 C.J.S. 

Partnership, 575, page 515; Hunter v. 

Allen, 174 Or. 261, 267, 284, 147 P.2d 

213, 148 P.2d 936; Ottaviano v. JJorenzo, 

1-69 Md. 51, 179 A. 530, 534, 535; Green 

17. Whaley, 271 Mo. 636, 651, 197 S.W. 

355; Sargent v. Blake, 8 Cir., 160 F. 57, 

64, 17 L.R.A., N.S., 1040, 1046; Upson v. 

Arnold, IS Ga. 190, 63 Am.Dec. 302; 

Lefevre's Appeal, 69 Pa. 219, 8 Am.Rep. 

299, 233; Crane on Partnership 392; 

Gilmore on Partnerships 128. The Uniform 

Partnership Act recognizes this right - and 

provides -- that the intention and agreement 

-- of the parties -- is to control. [emphasis 

supplied.] 

Other cases which are generally supportive of this 

position are Hirsch v. Bartels (Fla. 1950), 49 So.2d 531, and 
Bailes v. Bail~s (Ark. 1977), 549 S.W.2d 69. I have been 

unable to find any American cases in the last 100 years that 

support the majority's position here. 

This case should be reversed and remanded with directions to enter a declaratory order determining that the 

subject joint tenancy funds passed by right of survivorship.