*1 PATSY JEAN ANDERSON, as Personal Representative of MARIE SANDERS, Deceased, Plaintiff, Estate v. LEO B. BAKER, Cross-Appellant Respondent, Cross-Appellant Respondent. Defendant, No. 80-420. Submitted Nov. 1981. Decided Feb. 1981.
Rehearing
Denied March
Hauf & John Hauf, for defen- cross-appellant respondent. dant, opinion MR. CHIEF JUSTICE HASWELL delivered the of the Court. appeal cross-appeal summary judg-
This is an from a delivery ment ain claim and action. The District Court of *3 County party Yellowstone awarded each one-half of the savings deposit monies in a account and two certificates in a savings and loan association. We reverse.
The facts uncontradicted disclose that Marie Sanders, who opened savings lived on a Ballatine, farm near a Montana, ac- deposit count and two certificates of in 1972 and 1974 at Security Savings Billings, Federal and Loan in Montana. On 28,1975, October son, the name her Baker, Leo B. who was buying the farm from was as a tenant added to by July (through the three accounts which, 30, 1978, various accumulation) deposits and interest had come to total $26,182.35. signed by accounts, cards for the three Baker following language:
and Sanders contained the agreed by signatory parties “. . . It is with each other parties and placed with the Association that funds by any parties in or added to the account one of the shall and conclusively delivery at intended to be and that time signatory party of such funds to extent The facts in- pro the account.” in rata interests their his or portion gift any to not intend Sanders did that Mrs. dicate placed on his name was and that to Baker accounts expenses, money if her for withdraw so he could the account 1978, that in indicated officer’s affidavit Also, bank needed. placed on the ac- been years name had after Baker’s three in accounts the funds the officer that Baker told counts, money. belonged his and were not to his mother gave passbook and certificates 1975, In Mrs. Sanders hospitalized May, about 1978, was In Mrs. Sanders Baker. grand- Billings, her Montana, which time week Patsy daughter, to visit Anderson, Jean came from Arizona early after had been released from June, Mrs. Sanders her. In granddaughter. hospital see her she went Arizona to giving will, executed her 29,1978, June Mrs. Sanders On (except for a few cash be- of her estate Anderson bulk personal representative. quests) named Anderson as her and Billings, through attorney July made 7, Sanders, On passbook and Baker for the return of the written demand on money. Baker refused so she could withdraw the certificates August their 3,1978, on Sanders filed the instant suit for and return. August 3, this on
Thus Marie Sanders commenced action wrongfully alleging Baker, retain- son, that her Leo ing deposit passbook. and She asked for the two certificates of their Baker’s name be removed therefrom. return and that $26,182.35 alternative, she for the total sum asked damages, deposit passbook not if the were certificates returned. asserting he had
Baker filed an October answer on passbook and retain the certificates of acting incompetent alleging that Sanders was further 18, 1978, influence. November under coercion and undue On Baker Mrs. Sanders died in Arizona and on November *4 money withdrew all the from the three accounts. Patsy representative, personal
After Sanders’ death the plaintiff. 5,1979, March Anderson, as On Jean was substituted raising answer, additional the defendant filed an amended equitable estop- limitations, laches defenses statute of pel. After of counsel defendant, substitution for both sides summary judgment, seeking moved éach the total amount deposit. on July judgment gran- 10,1980, District
On Court entered ting deposit. each of the one-half total funds on appeals, contending Baker now he is ac- entitled to all of the surviving joint cross-appeals, counts as tenant. Anderson claiming residuary legatee she, as entitled to the full balance. appeal
The issues on can be stated as follows: parol 1. Is evidence admissible to show the funds were not gift by as a intended Sanders to Baker? applicable
2. Is Sanders’ suit barred statute limita- equitable estoppel? tions, laches, or plaintiff 3. Is the entitled to interest calculated from date Baker withdrew all funds from the three bank accounts? plaintiff per-
We reverse the trial court and find that the representative granted summary sonal should have been judgment delivery in her claim and action. regard argues
With issue, first Baker that State Equalization (1968), Board v. Cole 195 P.2d Mont. Casagranda 989, and v. Donahue Mont. controlling. P.2d are Cole, the decedent created five joint bank accounts between herself all relatives, and various years within three After death, death. the decedent’s imposed the trial court an inheritance tax measured one- questions presented half of the value of the accounts. The on appeal included whether the state was entitled to an in- heritance tax on the full amount of bank accounts, just finding one-half of the court, accounts. The half-interest the bank account which the tenants contemplation death, received was taxable transfer following made statements:
“Of course if the transfer the donor to the account regarded gift satisfy requirements as a it has to all the aof requisites valid inter vivos. The essential of a inter delivery, accompanying acceptance by intent, are vivos cases.] [Citing the donee. *5 the making intention of the is the first question
“The 46.) § inten- 101, Such (5 Banks & Michie, Banking, p. deposit Badeljy, in Hill v. 598, 605, 107 Cal.App. was discussed tion in- declared, ‘The question the court 637, 640, 290 P. where is intention of the parties this character the volved in cases of is evidenced by and where such intention making deposit, bar, in the case at this ques- as was done agreement, a written are the courts issue, ceases to be an tion of intention was the written above agreement.’ quotation bound by Ludwig v. Montana Bank this court in cited and approved by Co., & Trust 477, 502, 377, 98 P.2d 379. 109 Mont. C.J.S., from 9 Banks said,
“The Montana court also
quoting
§
no
of intent
&
‘Where
other evidence
Banking,
control;
when such
available, the form of the
but
may
deposit
intent is
a written
of in-
agreement,
evidenced
question
ceases
be an issue and the courts are bound by
tention
to
Ludwig
Co.,
v. Montana Bank & Trust
at
agreement.’
supra,
Mont.,
502 of 109
at
389 of 98 P.2d.
page
page
card con
“In this
jurisdiction
signing
signature
an
that the
either of
to
taining
agreement
deposit
payable
the survivor settled the
co-depositors
question
donative intent of the donor to make
joint tenancy.
re Sullivan’s
Estate,
In
519, 118
See
P.2d 383.” 122
Mont.
14-15,
Mont. at
tenants with survivorship. ecutrix suit title in the accounts and the court brought quiet defendant, as the surviving joint awarded money tenant.
The court elaborated on the Cole following with the holding language:
“Cole stood that, Montana, for the signing proposition card an containing agreement to either of the or the survivor settles payable co-depositors make a joint tenancy. Ap of donative intent question v. O’Hair O’Hair (1973), 109 decision, cites an Arizona pellant Ariz. that the mere form 508 P.2d wherein it was held of a bank account is not as sufficient to establish regarded depositor give intent of the another interest in or ownership represents it.of We find the Montana rule a more determining questions concerning reliable manner for ownership bank accounts. This should not be mistakenly understood to mean have we no concern for the depositor’s clearly expressed Intention is intentions. on the unnecessary face of the card. Additional evidence is . . 483-484, .” at Mont. 585 P.2d distinguish
However, we the instant Cole case from Casagranda following for the reasons. In neither Cole no r Casagranda any attempt during was there made the lifetime *6 donor-depositor, as there here, was to divest other spite tenant of his her interest in the account. In conclusory gift language signature sign- contained on card by ed Baker and Sanders, the uncontroverted evidence here i.e., shows that no was intended, Baker was named as a purposes only. legal for tenant convenience The effect of delivery during Sanders’ claim action, lifetime, and filed her judicially ownership was to establish her exclusive cutting survivorship funds the account off Baker’s solely language and to Baker take, allow on basis of the signature contained on card, would result in a substantial miscarriage justice. depositor
We therefore hold as where, here, dur ing ownership his or her lifetime raises the issue of funds in signature account, the statements on the card may are not conclusive additional evidence be examined parties. especially to ascertain true intent of the areWe cognizant many elderly people, theof fact that whose means of transportation physical is limited or whose condition is deteriorating, signature conjunction execute the card in with younger younger person may so relative make withdrawals the other’s direction. signature
We are also mindful that the cards are forms containing language by depository drafted institution. may very While the thereon describe the well agreements depositor depository, between the and the it can hardly expected accurately express the intentions and relationships between the about which the tenants Where little, knowledge. has if any, typically depository suit, during indicates in the instant as donor-depositor, that revealed on is other than her intent lifetime evidence admissible. hold such card, we man- in a similar this same thought have stated courts Other Harrington Emmerman (D.C. v. Cir. ner. For example, it tenants, female which involved two 1950), 186 F.2d said: was the two described sure, deposit agreement
“To be draw that either might as owners’ ‘joint provided women form sup- on a account; printed but the was agreement on the its association, pur- for own building presumably plied would have such form probably Some protection. pose own interests even had safeguard it to its been required merely arrangement Emmerman then stated the Miss was conclusive writing convenience of Mrs. Carlin. building one hand and the women on the between two between the other, but was not conclusive association on intended.” had been as to whether present individuals it Court stated F.2d at 761. The Washington Supreme thus: ain form invariably
“. . . card is provided [T]he it drafted undoubtedly which has institution depository an the terms of than express the institution rather protect Guardianship In re the depositors.” between agreement *7 Matt P.2d 123, 132, 75 449 Wash.2d account at an institu
When a depositor opens by the depository he the forms drafted accept tion must in other We have held elsewhere. him to or sign go proferred are contracts situations, adhesion where “take-it-or- leave-it” the against construed terms are to be involved, the in favor of are to be resolved and any ambiguities drafter Fit terms, at the document’s voice in arriving no having party zgerald v. Aetna Ins. Co. P.2d 370. Mont. (1978), 176 conclusion our feel this also reasoning supports We Sanders Baker and signed by cards language signature actual relation what their word” on “only should not be the them to be. was intended ship parol
Further, evidence rule in Montana not an simply obstacle for the introduction of evidence other than language. provides 28-2-905,MCA, card Section in pertinent part: concerning agreement extrinsic evidence
“When a written (1) may agreement be considered. Whenever the of an terms writing by parties, been have reduced to it is to be con- containing sidered as all Therefore, those terms. there can be parties representatives between the their in or successors agreement interest no evidence of the terms of the other than writing except following in contents of cases: “(2) This section not does exclude other evidence the cir- agreement cumstances under which the to made or which explain relates, it as described in l-U-102, other evidence to (Em- ambiguity illegality an extrinsic toor establish or fraud.” added.) phasis provides: MCA, 1-4-102, Section in turn surrounding “Consideration circumstances execution. proper For the construction of an the cir- instrument, including made, cumstances under which it was the situation subject parties may it, instrument to judge placed position also be shown so that interpret.” those whose he is circumstances under which the were here cards executed shows that no was intended Sanders to Baker when the cards signed. were involving unambiguous
In a
waivers,
similar situation
lien
parol evidence was
held admissible to show circumstances
executing
purpose
and their real
and receiv-
ing
Corp.
the lien waivers. Fillbach v. Inland Construction
(1978), Mont.
Likewise in St.Rep. adopted prospectively 240, we Mont., 520, 37 606P.2d § 885, held Torts, Second, Restatement the rule from of general specifically unless a release form in the that future parol is admissible to show otherwise, states evidence parties parties intended to release other whether actually was full the release intended to constitute whether unambiguous compensation face ef in the to that fect in the form. release jurisdictions similarly parol
Other have endorsed use of joint supra, Matt, bank account In evidence situations. found court execution of card raised presumption rebuttable and it would make lit- parol presumption. In tle sense to refuse to rebut the evidence (D.C. 1952), Murray v. Gadsden 197F.2d 33 ALR2d Cir. exception, parol 554, the court examined the rule evidence inquiry object ex- which ecuting an into the allows parol instrument, See and admitted the evidence. Applied Deposit Annot., Funds Parol Evidence Rule as (1954), Depositor 33 ALR2d 569. Another in Name Harrington, supra, The case of is similar to the case at bar. Harrington, donor-depositor continued treat during subsequent and, her own her lifetime account as representative account, to the creation of the her filed suit because the surrender other tenant would not passbook. After an answer had been filed before fur- but depositor taken, ther action was died. Harrington filing court that the found suit
donor-depositor rights any survivorship cut off of the other depositor passed tenant and whatever interest the had The case then for the survivor to executor. remanded part try prove that the of at least decedent intended bar, however, In the case at account to survivor. apart from the there evidence uncontradicted any part ac- never card Sanders intended tenant for Baker, counts to that Baker was named as only, purposes this. that Baker understood convenience (1963), 104 N.H. 187A.2d See also Brennan v. Timmins Brennen v. Timmins 105 N.H. 202 A.2d 793 and *9 In two cases wherein courts have construed here, almost identical to that at issue additional evidence was (1963), Ill.App.2d 438, v. 42 192 allowed. Graves Graves merely 616, N.E.2d the court examined evidence other than agreement, finding record, the words in the that the in addi agreements, to the that a tion showed was intended. In (1973), Ill.App.3d 261, 436, Estate 302 N.E.2d of Macak similarly finding record, court looked at the evidence on the no surviving presumption evidence to rebut the in favor of the joint tenant. It should be noted that in Macak both Graves and donor-depositor there was evidenc e that the intended bar, however, other tenant. In this case at exactly contrary. evidence is to the Annot., See Creation of Savings Savings Joint Account or to Sur Certificate Gift (1972), vivor 43 ALR3d 971, 1018. regard issue,
With
to the
is not
second
Sanders’ action
two-year
barred
limitations,
27-2-207,
statute of
section
begin
MCA. This statute
run
does not
until after there has
delivery.
been
demand and
refusal
Interstate Manufac
turing
(1965),
v.
449,
Co.
Interstate Products Co.
146 Mont.
began
The doctrine of laches has no to the case. requires negligence
Laches a claim the assertion of unexplained delay exists when there has been an such dura- right inequitable. tion as to render the enforcement of the (1977), Manufacturing 63, Brabender v. Kit Co. Mont. 67-68,568 P.2d 549. There is evidence here that Mrs. no negligent prosecuting Sanders was her claim. As stated above, she than a demand waited less month after written filing was refused before suit.
Similarly, apply equitable estoppel here. This not does claiming requires party relied on principle it promise detriment, v. Todd representation his Carroccia (1980), St.Rep. has not 1437. Baker Mont., 615 P.2d prejudice, thus cannot have his reliance to shown estoppel. equitable legitimate on based defense correctly regard issue, the trial court third With three accounts were from the calculated interest date proceeds his own Leo Baker and the converted closed applicable statute is 30, 1978.The use, which was November pertinent part: provides in 27-1-320,MCA, which section (1) personal property. The detriment caused “Conversion of wrongful personal property presumed conversion of to be:
“(a)
property
the value of the
at the time of its conversion
. .” Accord,
with the interest from that time.
Galbreath v.
Armstrong
121 Mont.
Reversed remanded to District Court judgment plaintiff cross-appellant for the for Anderson statutory rate of the from $26,182.35, sum interest thereon at judgment, November 1978to date of costs. WEBER HARRISON, SHEA,
MR. DALY and JUSTICES concur. dissenting: SHEEHY,
MR JUSTICE gave Corut, I would affirm the decision of the District which contending joint parties. deposits to each of the one-halfof my dissenting I reasons to the ma- will first summarize summary by jority support my opinion, a I more and then will applicable of the law. extended discussion by executing unique depository in- Marie through son, made struments a a institution deposited. By law, B. she Baker, Leo of the funds one-half gift. by addition, could not revoke that the terms joint tenancy depository same instruments, she created right giving funds, the remainder of the B. Baker a of sur- Leo vivorship predeceased to all of if she him. joint By tenancy, gave the creation of the Marie Sanders power acquire Baker Leo B. dominion over entire by withdrawing account the same. B. Baker could Leo have acquired by by surviving withdrawal, whole account joint tenancy Marie Sanders while the was in full force and effect. legal depository
The result of the instruments was that deposited by gift, Baker owned one-half of the funds and fur- joint right survivorship ther interest as tenant with in the deposits. other half of the tenancy, joint any depended upon
This other, like the coex- joint tenancy: istence of the title, four unities interest, possession. right survivorship time, and A tenant’s is irrevocably upon not fixed creation estate. sur- vivorship right only becomes fixed if the tenant survives, only joint tenancy and then if four unities of the estate have continued exist to the moment of survival. any joint by
Before one tenant, death action joint tenancy tenant which serves to sever or terminate the destroys right survivorship. Examples voluntary are: a by conveyance party partition pro- interest; one of his ceedings; or, as in this case, demand or action Marie joint tenancy. Sanders to terminate the title joint tenancy prop- a When severed, the hold (A erty distinguished as tenants in common. entirety tenancy by tenancy by from a the fact that a entirety requires unity, person. a fifth that of Husbands only entirety.) Here, wives can hold as tenants survivorship Marie Sanders terminated the as to the rightfully belonging funds the funds, to her. One-half of belonging apart subject to her of her estate, are distribu- *11 by her tion will. deposited by Baker
Thus, is entitled funds to one-half gift. remaining He would be one-half the half entitled to of of joint tenancy joint tenancy funds had severance oc- of since in curred he would then be a tenant common. But joint tenancy terminated, severed, because the not dur- ing any the lifetime Marie he not entitled to of of is remaining participates he half of the funds as an unless estate. Marie’s distribution of heir in the of Marie the action against applies of limitations The statute not run Baker. The statute did to Leo set aside the gift to joint in survivorship terminate the right against and she funds hers all the were in this case since tenancy, any during at time survivorship of right could terminate the her lifetime. are reasons: summary. Following my
That is my time that she executed made a gift Marie Sanders loan association. with the documents as follows: part in significant The instrument provides “It with each other is agreed by signatory parties in .. funds any with Association by placed parties . a . . intended to be conclusively gift . the account shall be signatory party at that time of such funds delivery his in or to the extent of or their rata interest pro account...”
A is a of made voluntarily transfer personal property A 70-3-101, gift, and without consideration. Section MCA. a death, other than in cannot be by view revoked 70-3-103, Section MCA. giver. in the above much language depository agreement goes than a with tenancy
further is establish necessary joint 70-1-307, a MCA, defines Section right survivorship. a as “one owned several in shares equal by interest persons transfer, title created will when single expressly or . .” All declared in the will or transfer be a . that the law in a signature agreement establishing requires tenancy bank account or an declara- express No is re- tion that monies are held more joint tenancy. 70-1-307, under section quired MCA.
I depository this from what nor- distinguish agreement tenan- mally usually establishment of required A cy Nichols, account. of sufficient is found in sample (1978): § 2.1422 Forms, Cyclopedia Legal “The card is account listed on reverse side this and several account. All funds now or hereafter either or shall deposited account depositors Each survivorship. with property depositors jointly *12 508
depositor authority complete have shall and absolute over ac- joint depositors during may any count lives of and withdraw part sign- of such funds on checks or other withdrawal orders any depositors by ed or either and or survivor survivors any in case of death thereof.” comparison A of the form set out in Nichols and that used and loan association in case at bar a demonstrates vast difference: Nichols’ form establishes a joint tenancy account; in the case form bar, at established gift deposit an absolute of one-half in this case in addi- creating joint tenancy. legal tion to As a effect, matter of it is only deposits disproportionate when of the one tenants signature in amount the account that the here card comes into play. equally If each of two tenants contributed ato tenancy gift account, the card have would no application. Equalization
In State Board v. Cole Mont. pur- 16, 195 989, 993, that, P.2d we held for inheritance tax poses, joint tenancy the mere creation of a account constituted gift deposit, though to a tenant of one-half of the even right the donor retained the exercise control over the deposited funds. The contention was made there that no completely occurred because the had donor not divested herself title of the transferred to the This donee. Court held joint tenancy completed gift that the creation of the awas transferring an interest in the donee. to the The form depository signature agreement is not set forth general Cole. The discussion of the court is in terms with respect joint tenancy. to the Cole, creation of a Based on however, buttressed additional signature agreement which before the case bar, us in at legal deposit by there can no doubt that effect of completed gift Marie Sanders to make a one-half of the deposit to Leo B. Baker. We said: upon present
“If the intent was to confer the defendant a right upon either fund, draw without limitation or for purposes, and to the extent of described the transfer was notwithstanding right valid, the donor retained a to draw upon thereby completely the fund at will. She divested herself not take effect defendant. It did title transferred enlarged by Such title upon that event. death, and was not upon entries time of the at the defendant had vested as the enjoyable.” presently present Cole, It was books. supra, P.2d at 993. Mont. no indication of Marie we have the intent
As to thing but the other this that she intended record form created. interest that *13 (1978), Casagranda 479, 483-484,585 v. 178 Mont. Donahue 1286, 1288,we said: P.2d signing proposition in a that, Montana, the stood for
“Cole deposit containing signature agreement the is card an co-depositors payable of settles to either survivor joint Ap- tenancy. question a of intent to make donative (1973), pellant decision, an Arizona O’Hair v. 109 cites O’Hair mere form 236, 66, Ariz. 508P.2d wherein was held that the it regarded a is as sufficient to establish the of bank account not joint give depositor a in or intent of the to another interest represents ownership it. rule a more of We find the Montana concerning determining questions reliable manner for joint ownership bank accounts. This should not mistakenly concern understood mean we have no depositor’s clearly expressed Intention is on the intentions. unncessary.” signature face is card. Additional evidence Casagranda, supra, set out the form of the we by P.2d at 484, 178 585 card used that institution. Mont. merely joint tenancy, It and had no 1288-1289. established language respecting it the conclusive of one-half of deposit. deposit inescapable, therefore, that as to one-half
It she cards which made Marie under the one-half of time, executed at the she made a conclusive deposit B. cannot revoke that son, to her Leo Baker. She gift. 70-3-103, Section MCA. legal made effect as to the balance of gifted, that it was
Marie the one-half Sanders, above survivorship deposited subject joint tenancy right of to a with By signature card, she between herself and Leo Baker. gave power acquire ac- over the entire Baker the dominion by withdrawing acquiréd
count the same. He could have also right predeceased to the entire account if had she him because joint tenancy property then the whole of the would have as vested him of the moment of her death.
In order determine what should become of one-half of deposited funds facts case, under the of this we should ex- joint tenancy. qualities amine the inherent refer- We have 70-1-307,MCA, red above to section which states that a persons equal interest one owned several Our shares. court has all said that the effect of statute is to include joint tenancy the incidents of a estate under common law. Hennigh Hennigh 372, v. 1022, 131Mont. P.2d divergent
The cases reflect two views to the effect of ownership interest of tenant. holds that for One view joint tenancy, party the duration of the each owns undivid- property, part ed whole of the and not fractional See thereof. (1980), Wash.App. Merrick v. Peterson P.2d 706. The in Montana, better view in view of the 70-1-307,MCA, section is that each tenant owns an un- equal divided share with a estate, tenancy property survive to the whole of the if he is the *14 ultimate survivor. As was noted in Re Estates Carlson of (1968), “joint tenancy” 201 339, 347, Kan. 443 a ex- P.2d single property, personal, ists where a estate in real or own- is persons, ed two more or under one instrument or act of parties; grand joint tenancy incident of is the sur- of vivorship, by tenancy any joint which the on entire decease of length tenant remains survivors, to the at last survivor. present problem accounts, however,
Joint bank a because party acquire prop either can dominion over the whole of the erty by simply withdrawing Cole, the funds. This was noted in supra, 122 17-18, 993-994, Mont. at 195 where this P.2d Court said:
“The California court has that the Califor- declared identical tenancy joint nia statute created the same estate as known joint common . . law . While bank account does differ types joint from other of tenancies it has not been treated dif-
511 example ferently joint ownership either co- ... For from other joint tenancy property in could sever the of a real tenant party by conveying and as be- his to a third estate interest remaining the transferee the new tween the co-tenant and tenancy special a feature estate became common. joint joint tenancy distinguishing from interests was the other long survivorship. remained So as both co-tenants attribute of only any in a transfer transfer one co-tenant resulted alive joint joint property. ac- owner of a bank of half the But either special ac- bank can count quire virtue of the contract with by drawing proper over the entire account a
dominion joint special feature order on the bank. This is attribute of joint bank account. Nevertheless a bank account is otherwise (Em- subject joint to the same rules as other tenancies ...” added.) phasis joint here,
Where, as owners of a bank have not account joint disproportionately, the funds acted withdraw subject joint tenancy is account the same rules as other tenancy. joint require tenancy
The rules of law include common joint are an ment that four unities essential to estate in tenan cy: unity unity unity unity interest, time, title, (1976), possession. Cal.Rptr. Tenhet v. Boswell unity destroyed, 334. If P.2d an essential tenancy tenancy Tenhet, in common severed and results. in First Thus, P.2d at Nat. Bank Gr. Westside 481, 486, 100, 103, v. we Falls Llera 176Mont. P.2d where tenant an automobile encumbered held that one security his interest in for a loan to the the automobile as collecting the action the bank in its bank, defaulted, through security severance, with the the automobile created became the result that bank and other tenant In other owners of the automobile tenants common. unity joint tenancy interest, an essential of a words, destroyed. been estate, had by any
A act tenant can terminate the existence. Shackelton which is inconsistent with its continued *15 (Okla. 1963), Ordinarily the in- v. 385 P.2d Sherrard the four act in a of one of consistent will result destruction unities of a in common results. tenancy tenancy Here, however, Marie Sanders moved to end the joint tenancy all of the funds which were in the because joint tenancy por- words, tion of the were hers. other she moved to deposit end the which was at that time right enjoyed survivorship Leo B. Baker. Her effort was more than a severance, it was a termination of the joint tenancy by party having right terminate because she true owner of the Baker funds. his action her to do so in recognized his statements to and loan savings officers, association and in not appearing to contest her deposition in Arizona. The legal effect therefore was to terminate the one-half portion that was to the subject rules.
As for the statute of limitations, it, course, to the applies gift which was made by virtue of the execution of the signature Her agreements. could be set aside for only fraud or mistake, or none incapacity, of which here. appear so, Even the limitation on those grounds two under years section 27-2-203, MCA. The statute was not tolled section 27-2-301, to the relating action, accrual of an until she made de- Her mand. if right, any, demand to set aside the gift portion accrued immediately upon execution of the forms and the statute of limitations ran from the moment of the execution of those instruments.
With respect tenancy portion deposit, however, the statute of limitations did not run or her action did not accrue until she made demand under 27-2-301, section MCA. Therefore, that portion of her claim is not outlawed.
The action of the majority resorting parole evidence to set aside a written instrument is a good of why courts example should be chary extrinsic allowing evidence to overcome the effect legal of a writing. evidence Assuming parole should be allowed here, it would fact present question of as to in- tent. Yet the majority decides Marie Sander’s as a intent mat- law, ter of purportedly upon “uncontroverted” evidence. Marie Sander’s taken in deposition, Arizona in July the only evidence available as to intent: She seems to be saying that the cards never were her: signed by
“Q. Have you ever authorized him to on the appear *16 you? A. No. tenant with certificates as a If for certificates the bank cards these “Q. your position your signature that there, on would it be shows forgeries? signatures I have A. don’t know. I’d would those . see it. look into them first. you knowledge though, I no what- correct, Am have “Q. your joint ques- making me ask him tenant? Let soever of again. tion you am I never
“Mrs. correct have authorized sign A. I have No, him to on those certificates? never. given your general power you B. Have Leo Baker “Q. ever attorney? A. No.” practice appellate is a to leave the resolu- It better courts my questions fact tion of the district courts. view of necessary questions case, however, it is not to decide of fact legal position determined, level. as I this said, have cards, joint tenancy. Marie action to Sander’s terminate the foregoing that, case, For the I reasons would hold in this summary judgment B. Leo Baker is entitled to to one-half deposited Patsy funds; Jean Anderson entitled remaining Represen- one-half of the funds as the Personal Again, tative of the estate of Marie for those Sanders. I reasons, affirm would the District Court. dissenting:
MR. JUSTICE MORRISON I concur in the dissent.