Peterson v. Kabrich

• Decision Date: 28 November 1984
• Docket Number: No. 84-92,84-92
• Citation: 213 Mont. 401,691 P.2d 1360
• Parties: Dona B. PETERSON, Plaintiff and Respondent, v. Donna KABRICH, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1360

691 P.2d 1360

213 Mont. 401

Dona B. PETERSON, Plaintiff and Respondent, v. Donna KABRICH, Defendant and Appellant.

No. 84-92.

Supreme Court of Montana.

Submitted Sept. 20, 1984.

Decided Nov. 28, 1984.

Torger S. Oaas argued, Lewistown, for defendant and appellant.

Craig R. Buehler argued, Lewistown, for plaintiff and respondent.

GULBRANDSON, Justice.

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 Trankle, 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 demands 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 no gift was intended by the $34,200 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 title 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 P.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:

"[W]here ... 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 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, 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 as 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...