NO. 84-92 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.984 

- 

DONA B. PETERSON, 

Plaintiff and Respondent, 

-vs .- 

DONNA KABRICH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas argued, Lewistown, Montana 

For Respondent : 

Craig R. Buehler argued, Lewistown, Montana 

Submitted: September 20, 1984 

Decided: November 28, 1984 

Clerk 
Mr. Justice L. C. Gulbraildson delivered the Opinion of the 

Court. 

Donna Kabrich appeals from an order of the Tenth 

Judicial District Court, Fergus County, directing her to 

transfer title to certain real property in Fergus County, 

Montana, into the name of the respondent, Dona Peterson. We 

affirm the decision of the District Court. 

The respondent, Dona Peterson, is a retired school 

librarian living in El Paso, Texas. She is a widow, and her 

immediate family at the time this action accrued consisted of 

her sister, Etta Trankle, and three nephews. Del Kabrich was 

one of these nephews, and the son of Etta Trankle. The 

appellant, Donna Kabrich, was married to Del Kabrich. 

Sometime after her husband died in 1978, respondent added Del 

Kabrich's name to a joint tenancy signature card for her 

checking account, number 726-015-8, at First State Bank in El 

Paso, Texas. Peterson mailed the signature card to Kabrich, 

who signed it and returned it by mail to Peterson. This was 

apparently done in hopes of facilitating the administration 

of her estate upon her death. Respondent had designated Del 

Kabrich the administrator of her estate in her will because 

he had a law degree and business experience. All of the 

money in account 726-015-8 was deposited by the respondent, 

who also exercised exclusive control over the account. 

The Kabriches rented a home in Lewistown, Montana. In 

June of 1980, Del and Donna Kabrich were advised by their 

landlord in Lewistown, Montana, that they must either buy the 

home they were renting, or move out. The Kabriches discussed 

their predicament with the respondent, and on June 24, 1980, 

respondent transferred $10,000 from account number 726-015-8 

to Del Kabrich, which was used as a down payment on the 
property. The balance of the purchase price, $20,000, was 

transferred from the account on July 10, 1980, to Del 

Kabrich. Title to the Lewistown property was transferred to 

Del and Donna Kabrich. On July 15, 1980, respondent advanced 

an additional $4,200 to the Kabriches for the purpose of 

making improvements on the property. There is no written 

agreement concerning the nature of the transfer between 

respondent Peterson and her nephew, Del Kabrich. The only 

written evidence of the transaction consisted of two letters 

allegedly written by Del Kabrich. 

The first, dated January 10, 1981, is a typewritten 

note allegedly from Kabrich to his mother, Etta Txankle, 

acknowledging the transfer as a loan from respondent. It is 

signed simply "Jr.", Kabrich's nickname. A handwriting 

expert for the defendant-appellant concluded the letter was a 

forgery after defendant entered the letter into evidence. 

The second letter, acknowledged to be handwritten by Del 

Kabrich to his aunt, the respondent, detailed the financial 

status of the Kabriches as of February 19, 1981. The letter 

ended by tendering a $500 payment to respondent, although no 

mention was made of any loan. 

In September, 1981, Del Kabrich died. Title to the 

Lewistown property passed to Donna Kabrich alone. Respondent 

made several demavds of appellant to the effect that she make 

some arrangement to repay the $34,200 transfer, alleged by 

respondent to be a loan. Appellant resisted, maintaining 

that the transfer was a gift. On April 28, 1982 the 

respondent filed an action against appellant in District 

Court, alleging that the entire transfer of funds from her 

checking account to purchase the Lewistown property was a 

loan, which appellant had refused to acknowledge or repay. 
The prayer requested a decree ordering Kabrich to transfer 

title in the Fergus County property to Peterson. A trial was 

held on September 19, 1983, before the Honorable Peter 

Rapkoch, sitting without a jury. On November 18, 1983, the 

court entered its findings of fact and conclusions of law. 

The court found that gift was intended the 

transfer, that a resulting trust had arisen in favor of the 

plaintiff, and that plaintiff was entitled to have the 

property transferred into her name. On the same day, the 

court issued its order requiring Donna Kabrich to transfer 

C 

tit1.e in the Lewistown property to Peterson, and from this 

order Kabrich appeals. 

The first issue raised by appellant is whether the 

District Court erred in failing to find that the transfer of 

funds from Peterson to Del Kabrich was a gift under Montana 

law regarding joint tenancy bank accounts. 

Appellant contends that under Montana law, the addition 

of Del Kabrich's signature to the signature card for 

Peterson's checking account created a gift of the monies held 

in that account. In order to constitute a gift, the addition 

of a party's signature to a bank account signature card must 

satisfy all the requirements of a gift inter vivos: (1) 

delivery; (2) donative intent; (3) acceptance by the donee. 

State Board of Equalization v. Cole (1948), 122 Mont. 9, 14, 

195 P.2d 989, 992. Thus the question here is whether 

Peterson intended to make a gift of the funds in her checking 

account when she added her nephew's name to the signature 

card. The language on the signature card is quoted below: 

"I or we in making this deposit and at 

all times in doing business with this 

bank, specifically agree to all of the 

terms and conditions printed on the 

reverse side hereof. 
"The above entitled joint account 

deposited by us, or either of us, and all 

moneys credited to the same, or 

heretofore or hereafter credited, is by 

mutual agreement payable to either of the 

undersigned, or the survivor or survivors 

of them. The receipt or acquittance by 

any one of the undersigned, to whom such 

payment is made, shall be valid and 

sufficient release and discharge to said 

bank for all payments made." 

It is true, as appellant argues, that Montana cases 

have held that "signing a signature card containing an 

agreement that the deposit is payable to either of the 

co-depositors or the survivor settles the question of 

donative intent to make a joint tenancy." Casagranda v. 

Donahue (1978), 178 Mont. 479, 483, 585 ~.2d 1286, 1288; 

Cole, 122 Mont. at 15, 195 P.2d at 992. However, when the 

donor-depositor raises the issue of donative intent during 

his or her lifetime, the language on the signature cards is 

not conclusive evidence that a gift was intended. Anderson 

v. Baker (Mont. 1982), 641 P.2d 1035, 1038, 39 St.Rep. 273, 

276-77. In Anderson, the donor added her son's name as joint 

tenant to a savings account and two certificates of deposit, 

and delivered the passbook and certificates to him. Later, 

she demanded their return and her son refused to comply. The 

donor filed a complaint praying for the return of the 

documents and for the removal of her son's name from them. 

Both sides moved for summary judgment and the trial court 

awarded each one-half of the total amount on deposit. The 

donor appealed, and in reversing the district court this 

Court held as follows: 

" [Wlhere . . . a depositor during his or 

her lifetime raises the issue of 

ownership of funds in a joint tenancy 

account, the statements on the signature 

card are not conclusive and additional 

evidence may be examined to ascertain the 

true intent of the parties . . . 
". . . We are also mindful that the 

signature cards are forms containing 

language drafted by the depository 

institution. While the 1a.nguage thereon 

may very well describe the agreements 

between the depositor"and the depository, 

it can hardly be expected to accurately 

express the intentions and relationships 

between the joint tenants about which the 

depository typically has little, if any 

knowledge. Where the donor-depositor, as 

in the instant suit, indicates during her 

lifetime that her intent is other than 

that revealed on the signature card, we 

hold such evidence admissible." 

Anderson, 641 P.2d at 1038, 39 St.Rep. at 

276-77. 

Here, the donor is still alive, and testified at length 

at trial. She testified that by having her nephew sign the 

signature card, she hoped to promote an uncomplicated 

administration of her estate following her death. This hope 

was based on her belief that Del Kabrich had greater business 

and legal experience than any other of her close relatives. 

In addition, Peterson emphatically testified that none of the 

money was intended a.s a gift. Rather, it was considered a 

loan with expectation of repayment. Peterson's understanding 

in this regard was based to a certain extent on an earlier 

loan from her to Kabrich, made when he mustered out of the 

armed forces. That loan, used to purchase an automobile, was 

repaid in full by Kabrich. 

Peterson also presented testimony that she had loaned 

money to another nephew to purchase real estate under a 

similar arrangement, i.e. there was no writing formalizing 

the loan, the debtor nephew having simply agreed to repay the 

money as he was able. This loan was being repaid according 

to the oral agreement, and Peterson testified that she 

expected the same result when she transferred funds to Del 

Kabrich to purchase the Lewistown property. 
The Anderson rule clearly applies here. We find that 

the addition of Del Kabrich's signature to the signature card 

of Peterson's checking account is insufficient evidence to 

overcome Peterson's testimony that there was no donative 

intent to make a gift. 

The appellant's second issue is whether the transfer of 

funds from the respondent to her nephew, Del Kabrich, raised 

a presumption that the transfer was intended as a gift. 

Section 72-24-104, MCA provides: "When a transfer of 

real property is made to one person and the consideration 

thereof is paid by or for another, a trust is presumed to 

result in favor of the person by or for whom such payment is 

made. " 

This presumption, however, is supplanted by a 

rebuttable presumption of gift in those cases where the 

parties stand in close relation to one another, such as 

husba.nd. and wife, or parent and child. Platts v. Platts 

(1959), 134 Mont. 474, 480-81, 334 P.2d 722, 727; Clary v. 

Fleming (1921), 60 Mont. 246, 198 P. 546. We have refused to 

extend the presumption to more distant relationships than 

those mentioned above. See Detra v. Bartoletti (1967), 150 

Mont. 210, 433 P.2d 485 (denying extension of presumption of 

gift to the unexplained transfer of property between 

siblings) . 

However, the appellant argues that Peterson stood - in 

loco parentis to Del Kabrich, and that relationship should. 

trigger the presumption of gift. 

The trial court specifically found that no -- in loco 

parentis relationship existed between Peterson and Del 

Kabrich. The trial court's findings will not be disturbed 

when supported by substantial evidence. Poepping v. Monson 
(1960), 138 Mont. 38, 43, 353 P.2d 325, 328. Here, there was 

ample evidence upon which the trial court could base its 

finding. In order to stand -- in loco parentis to another, a 

person must intentionally assume the status of a parent by 

accepting those responsibilities and obl.igations incident to 

the parental relationship without benefit of legal adoption. 

Fevig v. Fevig (N.M. 1977), 559 P.2d 839, 841. See also In 

re Marriage of Allen (Ct.App.Wash. 1981), 626 P.2d 16, 21; 

Workman v. Workman (Okla. 1972), 498 P.2d 1384, 1386. 

Evidence before the District Court indicated that 

although Peterson was close to all three of her nephews, she 

never assumed any parental obligations toward Del Kabrich. 

Their relationship was limited to occasional visits and the 

excha.nge of letters and Christmas gifts. At the time the 

transfer was made, Del Kabrich was a grown man, and he lived 

in close contact with his actual mother. With the exception 

of a loan from Peterson to Kabrich made when he left the 

armed forces (which was repaid), there is no indication in 

the evidence that Peterson had ever attempted or intended to 

assume the status of parent with respect to Del Kabrich. The 

trial court's finding that no -- in loco parentis relationship 

existed between. Del Kabrich and the respondent was supported 

by substantial evidence, and therefore will not be disturbed.. 

Since no presumption of gift arose under the facts of 

this case, and because it is evident that Peterson advanced 

the entire purchase price of the Lewistown property while 

title passed to Del and Donna Kabrich, a resulting trust in 

favor of Peterson is presumed. Section 72-24-104, MCA; 

Poeppinq, 138 Mont. at 46-47, 353 P.2d at 330; First State 

Bank of Philipsburg v. P.lussigbrod (1928), 83 lulont. 68, 92, 

271 P. 695, 704. The presumption is rebuttable, McQuay v. 
McQuay (19281, 81 Mont. 311, 320, 263 P. 683, 686, and the 

only remaining issue is whether the appellant sustained her 

burden of proof in overcoming the statutory presumption. 

Absent a presumption of gift, the appellant must establish 

that a gift was made by "clear, convincing, strong and 

satisfactory evidence . . . more than a mere preponderance of 

the evidence." Detra, 150 Mont. at 218, 433 P.2d at 489. 

In the instant case, tne evidence offered by the 

appellant falls short of establishing a gift by clear, 

convincing, strong and satisfactory evidence. An examination 

of the trial transcript reveals that Peterson understood the 

transfer of funds to be a loan, to be repaid by her nephew 

and appellant as they were able. As discussed above, this 

understanding was based in part on prior dealings between 

Peterson and her nephews. Peterson also introduced into 

evidence without objection a February 19, 1981, letter 

written by Del Kabrich to her discussing the Lewistown 

property, detailing Kabrich's financial affairs at the time, 

and then tendering an unexplained payment of $500. At the 

trial, respondent maintained that she understood the $500 to 

be a repayment on the money she advanced to pay for the 

Lewistown property. Appellant, however, maintained that the 

unexplained $500 payment was rather a "token of good will," 

and that the transfer of funds had been intended as a gift. 

As further proof that the transfer was originally intended to 

be a gift, appellant maintains that Peterson attempted to 

introduce a forged letter at trial, supposedly from Del 

Kabrich to his mother, Etta Trankle, which referred to the 

money used to purchase the Lewistown property as a "loan" 

from Peterson. 
Testimony during the trial indicated that the appellant 

and her mother-in-law had a stormy relationship. In fact, 

Trankle had sued appellant following her son's death to 

prevent appellant from ousting Trankle from the Lewistown 

property, where she was residing. 

The record also indicates that Etta Trankle died in 

November of 1982, and shortly thereafter her personal 

representative discovered the letter, dated January 10, 1981, 

in Trankle's purse. The letter was turned over to the 

attorney for Trankle's estate, Leonard McKinney. The letter 

was typewritten except for the signature, "Jr.", which was 

Del Kabrich's nickname. In the course of his investigation, 

counsel for the respondent discovered the letter and obtained 

it from Mr. McKinney. He then sent copies to the court and 

appellant's attorney, and notified them of his intent to 

introduce the letter into evidence at trial. Counsel for 

appellant then retained a handwriting expert, who on the date 

of trial, confided to Peterson's attorney that he believed 

the letter to be a forgery. Peterson's attorney then 

withdrew the letter as one of plaintiff's exhibits, and 

counsel for appellant instead entered the letter into 

evidence. The expert then testified that "based on his 

analysis of the two characters "Jr.", the letter was a 

forgery. 

It is appellant's contention that respondent Dona 

Peterson attempted to present the court with a forgery, 

thereby indicating that she originally intended the transfer 

of her funds to buy the Lewistown property to be a gift. We 

note that there was no proof introduced at trial indicating 

any connection between Peterson and the forged Letter. And 

in fact, it was the appellant, and not respondent, who 
presented the court with the January 10, 1981 letter. The 

trial court was obviously not impressed with appellant's 

contention in this regard, as it found a resulting trust to 

have arisen in favor of Dona Peterson. We are bound here to 

follow the conclusion of the trial judge, who had the 

opportunity to observe the conduct and demeanor of the 

witnesses on the stand. Poeppinq, 138 Mont. at 44, 353 P.2d 

at 329; McQuay, 81 Mont. at 320-321, 263 P. at 686. There is 

substantial evidence of record to support the determination 

by the trial court that no gift was made by the respondent in 

this case. Poepping, 138 Mont. at 43, 353 P.2d at 328. 

We therefore affirm the jud.gment of the District Court. 

We concur: 

d, -wwdAd&J 

Chief Justice 

I I / 

Justices '