Malek v. Patten

• Court: Montana Supreme Court
• Writing for the Court: WEBER; SHEEHY and GULBRANDSON, JJ., and DOUGLAS G. HARKIN; HARRISON; HASWELL; SHEA
• Citation: Malek v. Patten, 208 Mont. 237, 678 P.2d 201, 41 St.Rep. 305 (Mont. 1984)
• Decision Date: 10 April 1984
• Docket Number: No. 83-161,83-161
• Parties: Merton G. MALEK, and Robert L. Patten, Plaintiffs and Appellants, v. Donald PATTEN, and First National Bank of Great Falls, Defendants and Respondents.

Page 201

678 P.2d 201

208 Mont. 237

Merton G. MALEK, and Robert L. Patten, Plaintiffs and Appellants, v. Donald PATTEN, and First National Bank of Great Falls Defendants and Respondents.

No. 83-161.

Supreme Court of Montana.

Submitted Nov. 17, 1983.

Decided Feb. 27, 1984.

Rehearing Denied April 10, 1984.

Alexander & Baucus, Nancy S. Peterson, Great Falls, Edward Alexander, Great Falls, argued in rebuttal for Robert Patten.

Jardine, Stephenson, Blewett & Weaver, James E. Aiken, Great Falls, argued for First National Bank-Great Falls.

Church, Harris, Johnson & Williams, R. Keith Strong, Great Falls, argued for Donald Patten.

WEBER, Justice.

Plaintiffs appeal from the judgment of the Eighth Judicial District Court, Cascade County, which found defendant Donald W. Patten was entitled as joint tenant to three certificates of deposit and joint checking account funds. We affirm the judgment of the District Court.

The issue on appeal is whether Ella D. Patten created valid joint tenancies in a joint checking account and certificates of deposit payable to "Ella D. Patten or Donald W. Patten."

On December 13, 1965, Ella D. Patten (Ella) purchased with her own funds Certificate of Deposit No. 3379 from defendant First National Bank of Great Falls (First National) in the amount of $10,000. The certificate was issued in the name of "Ella D. Patten or Donald W. Patten ... payable to said depositor, or, if more than one, to either or any of said depositors or the survivor or survivors ...." The signature card executed at the time of purchase was signed only by Ella. In place of the other joint tenant's signature appeared notations stating "refused to obtain other signature" and "make sure of identification."

On December 3, 1969, Ella purchased with her own funds two additional certificates of deposit, Certificate No. 12682 and Certificate No. 12683, each in the amount of $10,000. These certificates were also issued payable to "Ella D. Patten or Donald W. Patten" or the survivor. The signature cards were signed only by Ella.

From the date of purchase of these three certificates, until her death, Ella received all interest payable on the certificates. None of the certificates was physically delivered to Donald during Ella's lifetime and until after Ella's death, Donald had not seen the certificates. However, the certificates were delivered by Ella to a safe deposit box at Northwestern National Bank of Great Falls. Donald was a joint tenant in the box and his signature appears on the signature card. Prior to Ella's death, only Ella had entered the safe deposit box, although Ella had told Donald to enter the box if something should happen to her. The certificates were located in the box at the time of Ella's death.

On July 10, 1970, Ella opened checking account No. 5002-50152-1 at First National. The account was designated a joint tenancy account with right of survivorship. The account was in the name of "Patten, Ella D. or Donald W." The joint account signature card was signed only by Ella. This account was still in existence at the time of Ella's death, with a balance of $46,587.16. Only Ella had transacted business on the account prior to her death.

Ella died on September 13, 1973. Soon thereafter, Donald went to Northwestern Bank of Great Falls and was granted access to the safe deposit box as one of the two named joint tenants, even though he had no key to the box. Donald removed the three certificates of deposit and later presented them for payment to Washington Federal Savings and Loan Association in Seattle, Washington. Washington Federal forwarded the certificates to First National for payment. First National remitted the proceeds plus accrued interest to Washington Federal for credit to the account of Donald W. Patten. On Donald's signature, the checking account funds were also withdrawn from First National and received by Donald.

After two successful challenges to Ella's wills by plaintiff Robert Patten, the District Court found Ella intestate and appointed a personal representative, plaintiff Merton Malek. See Patten v. Patten (1976), 171 Mont. 399, 558 P.2d 659; Estate of Patten (1978), 179 Mont. 299, 587 P.2d 1307. Plaintiffs now seek to recover $76,587.16, consisting of $30,000 from the three certificates and $46,587.16 from the joint checking account. The District Court found that the certificates and checking account were owned by Donald and Ella as joint tenants with right of survivorship and that all funds were properly paid to Donald as survivor. Judgment was entered for defendants and plaintiffs appeal.

Appellants argue that Ella did not establish valid joint tenancies in the certificates or checking account. They argue that the absence of Donald's signature on signature cards for the certificates and checking account and his lack of specific knowledge relating to the account and certificates precluded establishment of valid joint tenancies by contract or gift. We disagree.

In State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989, and Casagranda v. Donohue (1978), 178 Mont. 479, 585 P.2d 1286, this Court applied a gift analysis to resolve disputes concerning ownership of similar assets. In both cases, we applied the rule that a written agreement controls the issue of intent to make a gift:

"In this jurisdiction the signing of a signature card containing an agreement that the deposit was payable to either of the co-depositors or the survivor settled the question of the donative intent of the donor to make a gift in joint tenancy." Cole, 122 Mont. at 15, 195 P.2d at 992, citing In re Sullivan's Estate (1941), 112 Mont. 519, 118 P.2d 383 (emphasis added).

"Cole stood for the proposition that, in Montana, 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. Appellant cites an Arizona decision ... wherein it was held that the mere form of a bank account is not regarded as sufficient to establish the intent of the depositor to give another a joint interest in or ownership of it. We find the Montana rule represents a more reliable manner for determining questions concerning the ownership of joint bank accounts. This should not be mistakenly understood to mean we have no concern for the depositor's intentions. Intention is clearly expressed on the face of the signature card. Additional evidence is unnecessary." Casagranda, 178 Mont. at 483-84, 585 P.2d at 1288 (emphasis added).

In Anderson v. Baker (1982), 196 Mont. 494, 641 P.2d 1035, we held that where a depositor during her lifetime raised the issue of ownership of funds in a joint account, the statements on the signature card were not conclusive and evidence of intent to terminate the joint tenancy was admissible. The factual basis of the holding in Anderson was the depositor's written demand for the return of passbooks and certificates and a subsequent lawsuit filed by the depositor. 196 Mont. at 497, 641 P.2d at 1036. This case presents no similar facts. Ella did nothing during her lifetime to demonstrate an intent to terminate the joint tenancies.

In this regard, appellants place great emphasis on the fact that Donald did not sign the signature cards and that he had no specific knowledge of the accounts. They reason that Ella's failure to obtain Donald's signature or tell him of the accounts demonstrates a lack of intent on her part to make a gift. However, this approach places greater emphasis on an omission than upon an unequivocal act clearly expressing her intent. These facts are insufficient to show an intent not to give Donald a joint interest in the certificates and account. These facts are also insufficient to show an intent to terminate existing joint tenancies as in Anderson.

We hold that absent evidence of intent to the contrary, the joint account agreements and signature cards signed by Ella Patten establish her intent to make a gift.

Appellants further attempt to distinguish Cole and Casagranda with respect to the gift delivery requirement. They contend that because Ella refused to obtain Donald's signature or inform him regarding the account and certificates, she failed to relinquish control over them. However, the delivery requirement is met if the donor creates in the donee a co-equal right to exercise control over the deposits. Cole, 122 Mont. at 16, 195 P.2d at 993. Ella deposited the money under agreement that Donald had a right to withdraw the money or cash the certificates. In Cole, we stated that it is irrelevant that the right might prove to be of no pecuniary value. " 'No act of [the donor] could defeat the right, although she might render it of no value.' " 122 Mont. at 16, 195 P.2d at 993, quoting Burns v. Nolette (1929), 83 N.H. 489, 144 A. 848 (emphasis added). Donald had a right to exercise control over the account and certificates, even though Ella may have rendered it valueless by failing to inform Donald of the details.

Most authorities take the position that the opening of a joint account with an agreement such as the one signed by Ella Patten is sufficient to satisfy the delivery requirement, so long as done with the requisite intent. Brown on Personal Property 183 (3d ed. 1975). We recognized that a formal or informal written agreement is sufficient to accomplish delivery, in Faith Lutheran Retirement Home v. Veis (1970), 156 Mont. 38, 473 P.2d 503. There, a valid gift was found where the donor executed an instrument saying he wished to give a certain sum of money to the donee and that it could be collected from his estate if not demanded sooner or paid. 156 Mont. at 39-40, 473 P.2d at 504. We reasoned that writings serve the same purpose as actual delivery in an oral gift: preclusion of unfounded claims and authentication of the gift. 156 Mont. at 44, 473 P.2d at 506.

Ella Patten's intent was clearly expressed on the face of the deposit...