Matter of Estate of Lahren

                              NO.    94-209
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


IN THE MATTER OF THE ESTATE
OF SYLVESTER L. LAHREN,
          Deceased.




APPEAL FROM:   District Court of the Sixth Judicial District,
               In and for the County of Park,
               The Honorable Byron L. Robb, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Joseph B. Gary and Calvin L. Braaksma, Landoe,
               Brown. Planalp & Braaksma, Bozeman, Montana
          For Respondents:
               Dan L. Spoon,   R-p,   Spoon & Gordon, Missoula,
               Montana;  Kevin S.   Jones,  Christian & Samson,
               Missoula, Montana


                             Submitted on Briefs:   September 8,   1994

                                                    December 13, 1994
Justice James C. Nelson delivered the Opinion of the Court

        This is an appeal from a Sixth Judicial District Court, Park

county, order determining that the certificates of deposit at issue

were held in joint tenancy with right of survivorship by Sylvester

L.   Lahren's (S.L.         Lahren's) granddaughter, Signe Lahren (Signe)
We affirm in part and reverse in part.

                                           ISSUES

        There are two issues on appeal:

        I.     Did the District Court err in determining that the bank

certificates        of     deposit,   which designate one depositor and one

"P.0.D." beneficiary, are joint tenancy instruments?

        II. Did the District Court err in determining that the P.O.D.

designations on the bank certificates of deposit act to transfer

the certificates outside of the probate estate at the time of the

depositor's death as a non-testamentary transfer?

                         FACTUAL AND PROCEDURAL BACKGROUND

        S.L. Lahren died testate on June 25, 1992.               He bequeathed the

residue of his estate, less items of personal property which he had
specifically        devised,     to three of his four sons, namely Larry,
Daniel and S.L. Lahren Jr.                 However,    the bulk of S.L. Lahren's

estate consisted of four bank certificates of deposit                         (CDs) at

American Bank, formerly known as First Security Bank.

        The four CDs include: Certificate Number 32989, issued on

January 15,        1985,     Certificate    Number    33220,   issued   on   June    15,
1989,        Certificate     Number   33493,       issued on March 9,        1990,   and

Certificate Number 34197, issued on October 8, 1991.                     On three of

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the four CDs, the depositor was listed as S.L. Lahren P.O.D. Signe

Lahren.      The fourth CD named as depositor, S.L. or Signe Lahren.

Signe is not only S.L. Lahren's granddaughter,                      but also the
personal representative of S.L. Lahren's estate.

     As stated in her memorandum in support of her motion for an
order determining that the CDs were joint tenancy property, Signe

originally retained legal counsel from Livingston as recommended by

one of her uncles.     Counsel informed her that he believed that the
CDs were estate property.           Signe sought a second opinion on the
status of the CDs and came to believe through independent review

and evaluation that the CDs were actually property held in joint

tenancy with right of survivorship.

     On June 21, 1993, with her new counsel, Signe filed her motion

for an order determining whether the CDs were joint tenancy

property.      On June 23, 1993,      the District Court filed an order

requesting    additional   briefs    on       the   respective   positions   of   the

parties regarding the status of the CDs at issue.                      Appropriate

briefs were filed and on February 22, 1994, the District Court

determined that the CDs were joint tenancy property. The order was

certified as final and appealable on the joint tenancy question.

This appeal followed.

                           ISSUE I - JOINT TENANCY

     Appellants argue that the District Court erred in determining

that the three CDs at issue were joint property with right of
survivorship.      (The fourth CD which named the depositor as, S.L.

Lahren or Signe Lahren,       is not at issue on this appeal.)                    They


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contend that Signe did not have a present interest in the CDs and

therefore,    she had no joint tenancy or joint interest in the CDS.
         In a fairly recent opinion, Matter of Estate of Shaw (1993),

259 Mont. 117, 855 P.2d 105, we provided some guiding principles

for determining whether property is held in joint tenancy. In

Shaw
-I       we held that the creation of a joint       interest     or    joint
tenancy in property is by Montana statute.     ShawI 855 P.2d at 111.
                                               -
"Sections 70-l-307 and 70-l-314, MCA, mandate that if parties want

to create a joint tenancy (same as joint interest) in property,

they must make an exDress declaration that they intend to create a

joint    tenancy or    joint   interest."   ShawI
                                            -       855   P.2d    at     111.

(Emphasis added.) Absent an express declaration of intent that the

ownership interest be held in joint tenancy or joint interest, then

a tenancy in common or interest in common is created.            Shaw
                                                                 -   I    855

P.2d at 111.

        Section 70-l-307, MCA, defines joint interest as:

             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-l-314, MCA, explains how an interest in common is
created:

             Every interest created in favor of several persons
        in their own right, including husband and wife, is an
        interest in common unless acquired by them in partnership
        for partnership purposes or unless declared in its
        creation to be a joint interest, as provided in 70-l-307.
We are left to determine whether S.L.         Lahren made an express

declaration that the property was to be held in joint tenancy or

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joint interest, thus creating a joint tenancy or joint interest in

the property.     The certificates state on the front in printed form:

      ‘You' means the depositor(s) named above....If more than
      one of you are named above, you will own this certificate
      as joint tenants with right of survivor-ship, (and not as
      tenants in common.)    (You may change this ownership by
      written instructions.)   We will treat any one of you as
      owner for purposes of endorsement payment of principal
      and interest, presentation (demanding payment of amounts
      due), transfer and any notice to or from you.     Each of
      you appoints the other as your agent, for the purposes
      described above. We will use the address on our records
      for mailing notices to you.      You cannot transfer or
      assign this certificate or any rights under it without
      our written consent.

      Signe argues that this is the express declaration required

under Shaw to create a joint tenancy or joint interest.           However,

also included on the face of the CDs is the written designation

under depositors which states "S.L.           Lahren P.O.D. Signe Lahren."

The P.O.D. designation is not the same as a designation that the

property   is held in joint tenancy or joint interest.                 The

dissimilarity in the two designations makes the document ambiguous.

In m, we stated unequivocally that in the absence of an express

and unambiauous    declaration, no joint tenancy or joint interest is

created.   Therefore, in the instant case, no joint tenancy or joint

interest was created because there was no express and unambiguous

declaration creating a joint interest on the documents.

      Moreover,   "the essential characteristic of a joint tenancy is

the   right of     survivorship.        The    right of   survivorship-the

indispensable ingredient and characteristic of the estate, and not
a mere expectancy or possibility, as for example, is the inchoate

right of dower-accrues as a vested right when and as soon as the


                                    5
joint   tenancy is created...."         Casagranda v. Donahue (1978), 178

Mont. 479, 483, 585 P.2d 1286, 1288.             (Citation omitted.) A joint
interest or joint tenancy, then, assumes a present interest in the

property.

        A P.O.D. designation provides that the beneficiary receives an

interest in the CD only at the death of the depositor.                         See

Official Comments to §§ 72-6-211 and 213, MCA, Annotations.                    The

P.O.D. certificate of deposit is akin to an insurance policy - the

proceeds cannot be claimed by the beneficiary until death.                At any

time before the depositor's death,              the depositor can change the

beneficiary or withdraw the account and use the funds.                  However,

the P.O.D. beneficiary has no such right.            See Official Comments to

§§ 72-6-211 and 213, MCA, Annotations.                  Therefore,     a P.O.D.

designation does not entitle the beneficiary to a present interest

in the CDs and accordingly, the accounts cannot be held in joint

tenancy or as a joint interest.

        Finally,    the face of the documents contain a pre-printed
statement which provides that the CDs are owned in joint tenancy

but the written designation of "S.L.             Lahren P.O.D. Signe Lahren"

indicates a different status of ownership.              Sections     l-4-105   and

28-3-205,    MCA,    state that when an instrument contains partly

written words and partly language in pre-printed form, the written

words    control    the   pre-printed   form.      In the instant case,        the

written words which designate a P.O.D. beneficiary would control
over the pre-printed form purporting to create a joint tenancy or

joint interest in the CDs.
        We hold that, because there was no express and unambiguous

declaration that the instrument be held in joint tenancy or joint

interest, and because Signe Lahren held no present interest in the

subject CDs while S.L. Lahren was alive, no joint tenancy or joint

interest was created in the CDs.         Signe Lahren is not entitled to
the proceeds of the CDs at issue under a theory of joint interest

or joint tenancy.      Accordingly,    we reverse the District Court on

this issue.

                      ISSUE II - P.O.D. DESIGNATION

        Appellants also argue that the P.O.D. designation on the three

CDs was invalid.      They assert that the statutes which authorize
P.O.D.     designations,    §§   72-6-201 through 211, MCA, were not
effective until October 1, 1993, long after the CDs were purchased,

S.L. Lahren died and the estate was probated.       They further contend

that the statute was not retroactive and therefore, the P.O.D.
designation is an invalid attempt at a non-testamentary transfer.

        Signe counters that the non-testamentary transfer of the CDs

by the P.O.D. designation was valid under 5 72-l-110, MCA.           She
states that at the time the CDs were issued and S.L. Lahren died,

and the estate was         probated,   5 72-l-110, MCA, controlled the
disposition of the CD proceeds because the CDs were             "deposit

agreement [sl .I'

        We agree with Signe and note that although the Montana Probate
Code was extensively modified and revised in 1993, § 72-l-110, MCA,

remains viable and substantially unchanged in the 1993 revised

code.     Section 72-l-110(1) and subsection (1) (a), MCA, provide:
           Instruments not invalidated by code. (1) Any of the
     following provisions in an insurance policy, contract of
     employment, bond, mortgage, promissory note, deposit
     agreement, pension plan, trust agreement, conveyance, or
     any other written instrument effective as a contract,
     gift,     conveyance, or      trust is     deemed  to   be
     nontestamentary, and this code does not invalidate the
     instrument or any provision:
           (a) that money or other benefits theretofore due to,
     controlled or owned by a decedent shall be paid after his
     death to a person designated by the decedent in either
     the instrument or a separate writing, including a will,
     executed at the       same time as     the instrument or
     subsequently....

The statute was revised by the 1993 Legislature and now reads:

           Nonprobate transfers on death. (1) A provision for
     a nonprobate transfer on death in an insurance policy,
     contract of employment, bond, mortgage, promissory note,
     certificated or        uncertificated    security,    account
     agreement,     custodial   agreement,   deposit    agreement,
     compensation plan, pension plan, individual retirement
     plan, employee benefit plan, trust, conveyance, deed of
     gift,   marital property agreement, or other written
     instrument of a similar nature is nontestamentary. This
     subsection includes a written provision that:
           (a) money or other benefits due to, controlled by,
     or owned by a decedent before death must be paid after
     the decedent's death to a person whom the decedent
     designates either in the instrument or in a separate
     writing, including a will, executed either before or at
     the same time as the instrument or later....

Section 72-6-111, MCA, (1993).

     Essentially,   the statute remains the same, and at all times

applicable,    provided the authority to conclude that the P.O.D.

designation on the face of the CDs serves to create a valid          non-

testamentary   transfer.   As stated in the Official Comments to 5 72-

6-111, MCA,

          This section is a revised version of former Section
     6-201 [72-l-110, repealed 19931 of the original Uniform
     Probate Code, which authorized a variety of contractual
     arrangements    that  had  sometimes  been  treated as
     testamentary in prior law.     For example, most courts
     treated as testamentary a provision in a promissory note

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        that if the payee died before making a payment, the note
        should be paid to another named person; or a provision in
        a land contract that if the seller died before completing
        payment, the balance should be canceled and the property
        should belong to the vendee.         These provisions often
        occurred in family arrangements. The result of holding
        such provisions testamentary was usually to invalidate
        them because not executed in accordance with the statute
        of wills. On the other hand, the same courts for years
        upheld    beneficiary    designations in      life   insurance
        contracts. The drafters of the original Uniform Probate
        Code declared in the Comment that they were unable to
        identify policy reasons for continuing to treat these
        varied arrangements as testamentary. The drafters said
        that the benign experience with such familiar will
        substitutes as the revocable inter vivos trust, the
        multiple-party bank account, andunited States government
        bonds payable on death to named beneficiaries all
        demonstrated that the evils envisioned if the statute of
        wills    were    not   rigidly   enforced    simply do     not
        materialize.      The Comment also observed that because
        these provisions often are part of a business transaction
        and are evidenced by a writing, the danger of fraud is
        largely eliminated.
              Because the modes of transfer authorized by an
        instrument     under this section are declared to b e
        nontestamentary,     the instrument does not have to be
        executed in compliance with the formalities for wills
        prescribed under Section 2-502 [72-2-5221; nor does the
        instrument have to be probated, nor does the personal
        representative have any power or duty with respect to the
        assets.
              The sole purpose of this section is to prevent the
        transfers     authorized    here  from    being    treated as
        testamentary.

        Applying § 72-l-110, MCA, we conclude that the CDs at issue

are     "deposit    agreementrsl     ,I'   or     "other    written   instrument[sl

effective     as    a    contract"     and       are   a   valid   non-testamentary

instrument.        See; Malek v. Patten (1984), 208 Mont. 237, 244, 678

P.2d 201, 205.          Moreover,    "th[el money...controlled         or owned by

[the]   decedent shall be paid after his death to [the1                      person
designated by the decedent in...the instrument...executed                    at the

same time as the instrument or subsequently."                         Section 72-l-


                                             9
110(l) (a), MCA.          The three CDs naming Signe Lahren as the P.O.D.

beneficiary,       are     valid    non-testamentary          transfers.     Accordingly,
the sums at issue belong to Signe Lahren as the P.O.D. beneficiary.

       The appellants'        argument that §§ 72-6-201 through 211, MCA,

enacted     in     1993,      first     provided        the     authority      for     P.O.D.

designations on CDs,          and that there was no earlier authority for

P.O.D. designations, is misplaced. First, §§ 72-6-201through 211,

MCA,   address multiple person accounts.                      See Title 72, Chapter 6,
Part 2, MCA.        S.L. Lahren's CDs were single person accounts and

therefore,       not governed by Title 72, Chapter 6, Part 2, MCA.

       Second, 5 72-l-110, MCA, governed S.L. Lahren's single person

account at the time the CDs were purchased, at the time of his

death and at the time his estate was probated.                       Section 72-l-110,

MCA,   provided     the     authority    for     S.L.    Lahren     to     designate    Signe

Lahren as the P.O.D. beneficiary on the face of the CDs.                                  The

statute remains valid today, although revised and renumbered at s

72-6-111, MCA (1993). Therefore, S.L. Lahren provided for a valid
non-testamentary transfer when he designated Signe Lahren as the

P.O.D.      beneficiary.           We note that if S.L.             Lahren's CDs were

purchased today, § 72-l-110, MCA, revised by the 1993 Legislature

and now renumbered § 72-6-111, MCA, would still apply to CDs such

as those at issue in the instant case.

       We hold that the P.O.D. designation on the CDs at issue acted

to transfer the certificates outside of the probate estate at the

time   of   S.L.     Lahren's death as a non-testamentary transfer,

pursuant to § 72-l-110, MCA. The CDs are "deposit agreement[sl" or


                                            10
"other written instrument [sl effective as a contract" under the

statute,   and as such are valid non-testamentary transfers.    The
District Court did not err in concluding that Signe Lahren is the

valid P.O.D. beneficiary of the three CDs at issue and accordingly,

we affirm the District Court on this issue.

     REVERSED IN PART AND AFFIRMED IN PART.

                                                                      -


We Concur:




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