IN RE ESTATE OF SILVER, 99-475.

• Citation: 2000 MT 127,1 P.3d 358,299 Mont. 506
• Decision Date: 09 May 2000
• Docket Number: No. 99-475.,99-475.
• Parties: In the Matter of the ESTATE OF F. Morris SILVER, a/k/a Morris Silver, a/k/a F.M. Silver, Deceased.
• Court: United States State Supreme Court of Montana

1 P.3d 358

2000 MT 127

299 Mont. 506

In the Matter of the ESTATE OF F. Morris SILVER, a/k/a Morris Silver, a/k/a F.M. Silver, Deceased.

No. 99-475.

Supreme Court of Montana.

Submitted on Briefs January 13, 2000.

Decided May 9, 2000.

Rehearing Denied June 8, 2000.

Samuel M. Warren, St. Peter and Warren, P.C., Missoula, Montana, For Appellant.

Thomas H. Boone and Robert J. Sullivan, Boone, Karlberg & Haddon, P.C., Missoula, Montana, Sherman V. Lohn, Garlington, Lohn and Robinson, Missoula, Montana, For Respondent.

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 Jack Silver appeals a ruling of the Fourth Judicial District Court, Missoula County, that cash placed in a certain safe deposit box is property of the Estate of his father, F. Morris Silver. We affirm.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in permitting hearsay testimony?

¶ 4 2. Did the court err in admitting extrinsic evidence regarding the safe deposit box lease?

¶ 5 3. Did the court err in failing to conclude that the contents of the safe deposit box were a jointly-held asset pursuant to § 70-1-308, MCA, and the box lease agreement?

¶ 6 4. Did the court err in applying gift theory rather than contract theory in determining ownership of the contents of the safe deposit box?

¶ 7 5. Did the court err in awarding the contents of the safe deposit box to the Estate?

¶ 8 6. Did the court err in concluding that Jack exercised unauthorized control over the contents of the safe deposit box?

¶ 9 Jack Silver is the adult son and only child of the decedent, F. Morris Silver. Jack lives in California and is a professor of mathematics at the University of California at Berkeley.

¶ 10 In December 1995 and January 1996, Jack visited his father at Morris's home in Missoula, Montana. Morris was then eighty-five years old and a recent widower. He was suffering from Parkinson's disease and was scheduled to be hospitalized for hernia surgery.

¶ 11 It was agreed that Morris would need care providers to assist him when he returned home from the hospital. Jack was concerned about the presence of strangers in the house, because Morris had approximately $203,987 in cash stored there. Jack recommended that the cash be placed in a safe deposit box, and Morris agreed.

¶ 12 At Morris's request, his friend and employee Kathleen St. John called a Missoula bank to determine how arrangements could be made to open a safe deposit box, given that Morris was unable to go to the bank. Kathleen made arrangements for Morris and Jack to lease a safe deposit box. At Morris's direction, Kathleen typed a document stating: "I, F.M. Silver authorize my son Jack Silver to purchase a 10 × 15 × 21 safety deposit box in my name. I also wish for Jack Silver to be a signer allowed access to the safety deposit box." Morris signed this statement, and it was notarized.

¶ 13 Kathleen and Jack delivered Morris's signed statement to the bank. A bank employee filled out a bank form titled "Safe Deposit Box Lease Agreement" and placed an "X" in the box marked "joint." Jack signed the lease and took the bank form to Morris to sign. At Morris's direction, Jack and Kathleen then delivered the cash to the bank and placed it in the safe deposit box. Jack kept one key to the safe deposit box, and Morris kept another one.

¶ 14 On August 21, 1997, Jack exercised his right under the safe deposit box lease to access the box. He removed the cash from the box, placing it in his own safe deposit box at the same bank. This action was taken without Morris's direction, consent, or knowledge. Morris died eight days later.

¶ 15 Carolyn Sauro is the personal representative for Morris's estate, a substantial portion of which he bequeathed to a charitable foundation. Jack moved for summary judgment in the probate proceeding that he is the legal owner of the contents of the safe deposit box. The Estate opposed Jack's motion, and a hearing was held to resolve factual issues. Following the hearing, the court entered findings and conclusions in which it determined that Morris retained ownership of the cash and ordered Jack to return possession of the $203,987 to the Estate. Jack appeals.

Standards of Review

¶ 16 On evidentiary rulings, this Court's standard of review is whether the trial court abused its discretion. Harwood v. Glacier Elec. Co-op., Inc. (1997), 285 Mont. 481, 490, 949 P.2d 651, 657. We will uphold a district court's findings of fact if they are supported by substantial evidence and are not otherwise clearly erroneous. Tipp v. Skjelset (1997), 285 Mont. 274, 277, 947 P.2d 480, 481-82. This Court reviews conclusions of law to determine whether the district court's interpretation of the law was correct. Tipp, 285 Mont. at 277, 947 P.2d at 482.

Issue 1

¶ 17 Did the District Court err in permitting hearsay testimony?

¶ 18 Over Jack's objection, the District Court allowed testimony by Kathleen St. John and Carolyn Sauro regarding statements Morris made to them concerning the money in the safe deposit box. Kathleen stated by affidavit that when Morris agreed to put the money in the safe deposit box, he asserted that it was still his. She stated that she never heard him say he intended to make a gift of the money to Jack or that he did not consider it to be his money. Carolyn stated in her affidavit that Morris was most emphatic that the contents of the safe deposit box were to remain his. She also attested that at no time did Morris indicate he had made any gift to Jack of the contents of the safe deposit box and once during the summer of 1997 he said he may have to go to the safe deposit box to secure some of his cash.

¶ 19 In Anderson v. Baker (1982), 196 Mont. 494, 641 P.2d 1035, this Court held that the admission of parol evidence was proper to show the intention of the parties when a depositor into a joint bank account indicated an intent contrary to what was shown on the bank account signature card.

We are also mindful that the signature cards are forms containing language drafted by the depository institution. While the language thereon may very well describe the agreements between the depositor and the depository, it can 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, 196 Mont. at 500-01, 641 P.2d at 1038. In that case, this Court ruled that consideration of the circumstances under which the signature cards were executed established that no gift was intended when the signature cards were signed. Anderson, 196 Mont. at 502, 641 P.2d at 1039.

¶ 20 In Thompson v. Steinkamp (1947), 120 Mont. 475, 187 P.2d 1018, Thompson had given Steinkamp money to purchase real property in which title was then held in Steinkamp's name. Following Thompson's death, the issue was whether Steinkamp held the property in trust for the benefit of Thompson's estate. In ruling admissible evidence of statements Thompson had made relating to his intent, this Court said:

Here the issue between the parties depended upon the intention with which Mr. Thompson furnished the money to defendant. Whether it was a gift to her as she contends or whether, as plaintiff contends, it was his purpose to have her buy the property in question for him, depended upon Mr. Thompson's intent. "When intent is a material element of a disputed fact, declarations of a decedent made after as well as before an alleged act that indicate the intent with which he performed the act are admissible in evidence as an exception to the hearsay rule, and it is immaterial that such declarations are self serving." (Citations omitted.)

Thompson, 120 Mont. at 481, 187 P.2d at 1021.

¶ 21 Similarly, in the present case, the contested testimony is evidence of Morris's stated intent to retain ownership of the cash which he had placed in the safe deposit box. Rule 803(24), M.R.Evid., provides that statements not covered by the enumerated exceptions to the hearsay rule will be allowed if comparable circumstantial guarantees of trustworthiness exist. Here, the statements put into context Morris's opening of the safe deposit box and the placement of the cash within the box. We hold that the District Court did not abuse its discretion in admitting the testimony about Morris's statements of intent concerning the money which he arranged to have placed in the safe deposit box.

Issue 2

¶ 22 Did the court err in admitting extrinsic evidence regarding the safe deposit box lease?

¶ 23 Jack points out that under § 28-2-904, MCA, a written contract supersedes all oral negotiations or stipulations which preceded the execution of the document. He argues that the fact that the safe deposit box lease form was prepared by a bank employee is not relevant to interpretation of the document and that the court therefore erred in finding that Morris did not prepare the lease form or check the box on the form marked "joint." Jack points out that Morris duly signed the lease and that he is presumed to have read and understood it.

¶ 24 The District Court's conclusions do not indicate that they turned on the evidence or the finding to which Jack here objects. Rather, the court gave other reasons for its conclusions. We hold that the District Court did not abuse its discretion by admitting the extrinsic evidence regarding the safe deposit box lease, and we further hold that the finding that Morris did not select the form of safe deposit box lease or check the box on the form marking the box as joint is supported by substantial credible evidence in the record and is not otherwise clearly erroneous.

Issue 3

¶ 25 Did the court err in failing to conclude that the contents of the safe deposit box were a jointly-held asset pursuant...