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No. 91-287
IN THE SUPREME COURT OF THE STATE OF MONTANA

1992

FRANCIS J. SEW,
Personal Representative of the ESTATE OF GARY W. SEMAN, Deceased,
Plaintiff and Appellant,
-vs-

JUDY LEWIS,
Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD: For Appellant: Donald J. Beighle argued, Deer Lodge, Montana John A. Alexander, Butte, Montana. For Respondent: Patrick T. Fleming argued, Butte, Montana.
Submitted: January 2, 1992 Decided:
March 5,
1992

Clerk




Justice John Conway
Harrison delivered the Opinion of the Court.

This is an appeal from the Second Judicial District Court, Silver Bow County, Montana, in
which the Honorable James E. Purcell granted summary judgment in
favor of Judy Lewis, respondent. Francis Seman, personal representative of Gary Seman's estate, appeals. We
affirm.
The issue presented for our review is whether a bank signature
card which designates an account as "joint" creates a joint tenancy
with right of survivorship or a tenancy in common.

The undisputed facts of the case at bar are as follows:

Gary Seman died intestate. Appellant, Francis Seman, was
appointed personal representative of Gary Seman's
estate.
Respondent, a personal friend of Gary Seman, was a co-owner and co-
signatory with him on a joint savings account (the Seman/Lewis

account).

Approximately five years before he died, Gary Seman added respondent's
name to his savings account. A bank representative completed a new signature card which controlled access to the account which was placed in
the names of "Gary Seman or Judy Lewis.I1
The card indicated that the ownership of the account was lljoint.ll
Gary Seman and respondent signed this card.
Deposition and affidavit testimony indicate that Gary Seman
intended respondent to have full access to the funds in this
account. Nonetheless, respondent made no deposits in or
withdrawals from the account prior to Gary Seman's
death. Shortly
after Gary Semanls
death, respondent withdrew the balance and
closed the Seman/Lewis
account.


Appellant brought the initial action in district court to
recover one-half of the amount contained in
the Seman/Lewis
account
on the date of Gary Seman's death, claiming that respondent and
Gary Seman held the account as tenants in common. Finding that the
parties held the account as joint tenants with right of
survivorship and that the survivor was entitled to the entire
balance ofthe
account, the District Court granted summary judgment
in
respondent's favor.

Appellant urges reversal of the District Court pursuant to our
decision in
University of Montana v. Coe (1985),
217 Mont. 234, 704

P.2d 1029, contending that Gary Seman and respondent held the funds
as tenants in common, entitling appellant to at least one-half of
the account balance on the date of Gary Seman's death. We
disagree.

In w,
this Court found that a signature card designating an account as "joint" without language of survivorship created a tenancy in common. In the case at bar, the District Court, faced with an almost identical signature card, adopted the opposite result finding that the joint account was a joint tenancy with right of survivorship. Consequently, when Gary Seman died, the entire balance in
the account transferred to respondent.
~

Coe is distinguishable. In w
we specifically limited our holding to the facts of that case, thereby rendering it
inapplicable to the case at bar. m,
217 Mont. at 240, 704 P.2d
at 1033.
Joint bank accounts have a special attribute which allows
either joint owner, by virtue of a contract with the bank, to
acquire complete control over the entire account. Casagranda v.


Donahue
(1978),
178 Mont. 479, 483, 585 P.2d
1286, 1288.
Nonetheless, the rules governing property ownership remain
applicable to joint bank accounts. Casaqranda, 178 Mont. at 483,
585 P.2d
at 1288. If bank policy contradicts Montana law, Montana
law governs.

The ownership of personal property held by more than one
person is either of joint interests, partnership interests, or
interests in common. Section 70-1-306, MCA. Joint interests are
defined as follows:

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.

Section 70-1-307, MCA. "An
interest in common is one owned by
several persons, not in
joint ownership or partnership."
Section
70-1-313, MCA. Every interest created in
favor of more than one
person is
an interest in
common unless specifically declared to be
a joint interest. Section 70-1-314, MCA.

In the case at bar, Gary Seman and respondent selected a
"jointv1
account by marking the appropriate box on the applicable
signature card. Further explanation regarding the significance of
owning a joint account failed to appear on the signature card.
Applying Montana's statutory scheme regarding ownership of personal
property, as set forth above, it appears that Gary Seman and
respondent held this account as tenants in
common because they
failed to designate the account as a joint tenancy and the
signature card lacked words of survivorship. However, the use of
the word Itjointtt


and nothing further, creates an uncertainty.
To clarify this uncertainty we must determine the intent of

the account owners since intent is the determinative factor in
this
case. To create a joint tenancy with right of survivorship, the
requirement is one of clear manifestation of intention, not of
particular words. Hennigh v. Hennigh (1957),
131 Mont. 372, 381,
309 P.2d
1022, 1027 (quoting cases). When third party rights are
involved, extrinsic evidence is inadmissible if the written
agreement is certain and clear. In such cases, the intent of the
parties must be gleaned from the signature card alone. Ludwig v.
Montana Bank and Trust Co. (1939),
109 Mont. 477, 98 P.2d
377. In

Ludwiq, this Court found:

"[Wlhere
such intention is evidenced by a written agreement, . . . this question of intention ceases to be an issue, and the courts are bound by the written agreement. . . . [Plarol
evidence is not admissible to change the terms of the legal effect of such a written instrument where it
is in no respect uncertain or ambiguous."
(citing cases.)
Ludwi
q, 109 Mont. at 502, 98 P.2d
at 389, quoting Hill v. Badeljy

(Cal. 1930),
290 P. 637, 640, (followed in
e,
217 Mont. 234, 704
P.2d
1029; Casaqranda, 178 Mont. 479, 585 P.2d
1286; and State
Board of Equalization v. Cole (1948),
122 Mont. 9, 195 P.2d
989).

In many prior Montana cases concerning the ownership of joint bank accounts, this Court found it unnecessary to look beyond the signature card to determine the intent of the depositors. In these cases, the signature cards explicitly referred to the owners of the accounts as joint tenants, or they explicitly stated that any money in the joint account was to be paid to either, both, or the survivor upon the other owner's
death. See Casaqranda, 178 Mont. 479, 585 P.2d
1286; Malek v. Patten
(1984),
208 Mont. 237, 678 P.2d
201; and Cole,
122 Mont. 9, 195 P.2d
989. As a result, we have concluded that signing a signature card containing such an
agreement demonstrated intent to create a joint tenancy with rights
of survivorship since intent to create a joint tenancy was clearly
manifested on the face of the agreement. Casaqranda, 178 Mont. at
483, 585 P.2d
at 1288.

This case is different. The signature card in the case at bar
provided a method for Gary Seman and respondent to choose the type
of account they desired. They chose a gljointgl
account. In
addition, the signature card reflects that the account was held in
the names of "Gary Seman


Judy Lewis."
The signature card did
not evidence a clear intention to create a joint tenancy. The
instant case is identical to Coe
without the use of extrinsic
evidence.

Extrinsic evidence is only inadmissible if
terms in the written agreement are uncertain and the extrinsic evidence is being presented to contradict the terms of the written agreement. Coe,
217 Mont. at 238, 704 P.2d
at 1032. In m,
extrinsic evidence was not allowed because its only possible purpose was to contradict the express terms of the agreement. The express terms of that agreement stated that Mark Coe was an owner of the account with his sister, Tammerly. To prevent a judgment creditor from levying on the funds in
the account, the Coes
tried to submit extrinsic evidence to prove that Mark did not own any of the funds in the account. Clearly, this evidence was intended to contradict the plain meaning of the agreement and therefore, inadmissible. Accordingly, the only proper evidence before the Court regarding intent of the parties was the signature card. Since the signature card did not clearly indicate an intent to create a joint tenancy, this Court concluded that Mark and Tammerly owned the account as

tenants in common, allowing the judgment creditor to levy on Mark's
half of the account.

Coe is distinguishable; extrinsic evidence regarding intent
was admissible in the instant case because respondent submitted it
to supplement, rather than contradict, the uncertain terms of the
signature card. Respondent did not offer this evidence to refute
ownership in the account. Deposition and affidavit testimony of
respondent, bank personnel, and the bank vice president was offered
to indicate Gary Seman's desire to have the funds in the
Seman/Lewis
account revert to respondent upon his death. This
evidence merely explains Gary Seman's
intent regarding the type of
ownership he desired when acquiring this joint account.

As neither party has presented any disputed issues of material
fact and the District Court correctly distinguished Coe
from the
case at bar, the court did not err in granting summary judgment in
favor of respondent.

AFFIRMED.




Justice Terry N.
Trieweiler specially concurring.
I concur with the opinion of the majority.
I disagree with the conclusion of the dissenters that

5
70-1-306, MCA, requires use of the word "tenancy"
in order to
create a joint ownership in property with rights of survivorship.
My interpretation of 5
70-1-306, MCA, is that joint forms of
ownership must be designated as joint ownership, as opposed to some
other form of ownership. That is exactly what the signature card
signed by Gary Seman and Judy Lewis did. I am satisfied that the
legislature intended nothing so literal as suggested by the
dissenters in this case.

However, neither am I in accord with everything that is said
in
the majority opinion.
I believe that the result arrived at by the majority is

required by our earlier decision in First Westside National Bank v. Llera (1978),
176
Mont. 481, 580 P.2d
100. In that case, we addressed the form of ownership for an automobile where the certificate of ownership indicated that the owners were "Edith
S. Tynes and/or Allen R. Llera." There was no language indicating that the automobile was owned in "joint tenancy."
However, we held that:
[I]t
has come to be widely accepted, particularly in the consumer goods industry, that ownership documents which carry the names of two or more persons with the phrase "and/or"
does in fact create a joint tenancy estate. Moreover, this Court held in Marshall v. Minlschmidt
(1966),
148 Mont. 263, 269, 419 P.2d
486, that the names of three owners shown on a recorded cattle brand, joined by the word llor,lg

was in fact a joint tenancy interest in the
brand, and therefore of the cattle bearing such brand.

Following Marshall, therefore, we may assume that in
Montana an ownership document showing title in two or

more persons lland/or"
has the effect of creating a joint

tenancy estate with right of survivorship. This applies

to personal property, not real estate. See: ?j
67-310
R.C.M. (1947). First Westside National Bank, 580 P.
2d
at 103.
In this case,the signature card indicated that the owners of the account were "Gary Seman or Judy Lewis." In addition, the owners made a conscious indication on that card that ownership of the account was "joint." The owners did more than was required in the First Westside National Bank case to establish ownership of this
account in the form of a joint tenancy. An apparently inconsistent result was arrived at in
the case of University of Montana v. Coe (1985),
217 Mont. 234, 704
~.2d
1029.
However, nowhere in
the majority opinion of the Coe
decision is First Westside National Bank discussed, overruled, or modified. The only reference to it is in Justice Weber's
dissent where he discusses
both the Marshall and First Westside National Bank cases and then concludes as follows: The foregoing cases have not been overruled. Based on the foregoing authority, I conclude that we must class the present bank account as a joint tenancy bank account, with each of the two account holders having all the rights of joint tenants with right of survivorship. COe,
704 P.2d
at 1036-37 (Weber,J., dissenting).
I agree. I would follow the First Westside NationaI
Bank case, and to the extent that the Coe
case is inconsistent, I would overrule that decision.




Justice Karla M. Gray, dissenting.

I respectfully dissent from the opinion of the majority. I
agree with the majority that Gary Seman and Judy Lewis intended to
create a joint tenancy in the account. It is my opinion, however,
that an appropriate analysis of this case requires the application
of statutory requirements rather than rules of contract
interpretation.

Section 70-1-307, MCA, is clear: no joint interest exists unless the ownership by several people in equal shares is l
textxesslvdeclared in the . . . transfer to be a joint tenancy." (Emphasis added.) The majority correctly concludes that, the statutory requirements not having been met, Gary and Judy "appear"
to have been tenants in common. In my view, the majority should have held at that point that the District Court erred in granting summary judgment to the respondent. The statutory requirement that a joint interest must be expressly declared in
the creating instrument to be a joint tenancy could not be more clear. Absent such an express declaration, no joint tenancy can exist.
Inexplicably, the majority verges off on rules of contract
interpretation. Finding an ltuncertaintylg


on the face of the
signature card, it decides it
must determine the intent of the
account owners and goes on to discuss the admissibility of
extrinsic evidence in
vintage contract interpretation terms. The
result is to ignore the legislature's clearly stated intent as to
what is necessary to create a joint interest, as a matter of law,

11

and to elevate the intent of the parties to an agreement over
specific statutory requirements. I cannot agree.


Chief Justice J.A. Turnage
and Justice Fred J. Weber join in the
foregoing dissent of Justice Karla M. Gray.


12

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