No. 83-161
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
MERTON G. MALEK, and ROBERT L. PATTEN,
Plaintiffs and Appellants,
DONALD PATTEN, and FIRST NATIONAL
BANK OF GREAT FALLS,
Defendant and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUIJSEL OF RECORD:
For Appellants:
Alexander & Baucus; Nancy S. Peterson argued
for Robert Patten, Great Falls,
Edward Alexander argued in rebuttal for Robert
Patten, Great Falls, Montana
For Respondents:
Jardine, Stephenson, Blewett & Weaver; James E.
Aiken argued for First National Bank-Great Falls,
Great Falls, Montana
Church, Harris, Johnson & Williams; R. Keith Strong
argued for Donald Patten, Great Falls, Montana
submitted: November 17, 1983
Decided: February 27, 1984
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs appeal from the judgment of the Eighth
Judicial District Court, Cascade County, which found
defendant Donald W. Patten wa.s 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 Associat.ion 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:
- - to either- question - native
~avable of - co-de~ositors
survlvor settled t h r
the
od -
-o
7
or -
the
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
- t h e deposit -
that - ispayable - either - -
to of the
co-depositors - - survivor settles the question
or the
- donative intent to make a joint tenancy.
of
Appellant cites an Arizona decision ...wherein
it was held that the mere form of a hank 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 sicmature caTd. Additional evidence is
---
unnecessary. " tasagranda, 178 Mont. at 483-84, 5 8 5
P.2d at 1-288 (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. his 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 knowl-edge 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
certifi-cates 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 - - - value. ' "
it of no 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 j.s 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 sa-ying 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 agreements. These agreements are sufficient
to accomplish her purpose. Moreover, signature cards are
protective devices employed by banks to assure that the
person transacting business with the account is actually the
person named in the deposit agreement. So long as Donald was
designated a joint tenant in the deposit agreement, lack of
his signature on the card does not affect his rights as set
forth in the deposit agreement.
Appellants have presented no authority for the
proposition that a donee must sign the document which creates
a gift or must know the details of the gift. The general
rule is that acceptance of a gift is presumed. See Stagg v.
Stagg (1931), 90 Mont. 180, 188, 300 P. 539, 543; 38 Am.Jur.
2d Gifts sections 34 and 35. Donald did nothing to repudiate
the gifts. We find no legal significance in the absence of
Donald's signature on the signature cards or lack of specific
knowledge concerning the account and certificates.
Stringent application of gift theory elements as urged
by appellants ignores the reality of modern practice relating
joint and survivorship bank accounts. Modern commercial
practice relies heavily upon contractual theory rather than
gift theory. The Legislature has recognized the validity of
joint bank accounts and certificates of deposit based upon
contractual principles. See section 72-1-110, MCA and
comment; section 32-1-442, MCA. The Legislature has
recognized the validity of the contractual relationship
involved in these transactions by relieving banks of
liability for paying the proceeds of such accounts according
to the t.erms of the contract:
"Joint deposits - survivorship. (1) When a deposit
has been made or shall hereafter be made in any
bank transacting business in this state in the
names of two or more persons, payable to either or
payable to either or the survivor, or any survivor,
such deposit, or any part thereof, or any interest
or dividend thereon, may be paid to any of said
persons, whether the other or others be living or
not. The receipt or acquittance of the person so
paid shall be a valid and sufficient release or
discharge to the bank for any payment so made.
" (2) The term 'deposit' shall include certificates
of deposit heretofore or hereafter iss~zed."
Section 32-1-442, MCA.
While this statute does not expressly vest title to account
proceeds, it a-pproves payment to the surviving joint tenant.
This is precisely the position of First National in this
case, which has delivered funds to Donald in accordance with
the contracts.
A case emphasizing this contract relationship is Estate
of Panning (Ind. 1975), 333 N.E.2d 80. The depositor, with
her own funds, purchased certificates of deposit as joint
tenant with another person who signed nothing and knew
nothing of the certificates' existence until they were found
in a safe deposit box after the depositor's death. The
Indiana Court applied the Restatement of Contracts provision:
'' ( 1 Where performance of a promise in a contract
will benefit a person other than a promissee, that
person is ...
" ' (a) A donee-beneficia-ry,if it appears from the
terms of the promise in view of the accompanying
circumstances that the purpose - - promise
of the ...
is- to -
- - make a gift - - beneficiary - - confer
to the or to
upon him a right against the promisor - - to some
performance neither due nor supposed nor asserted
to be due from the promisee to the beneficiary
. . .. '" Estate of Fanning, 333 N.E.2d at 83,
quoting ~estatementofContracts section 133 (1932)
(emphasis added) .
The Indiana Court expressly found that the donee's lack of
knowledge of the certificates did not affect the validity of
the gift. 333 N.E.2d at 83-84.
The Court concluded that:
"We have adopted the contract theory instead of the
gift theory
*
. . ..- elemental requirements of
The
the gift theory - -to frustrate the intent - -
tend of t
&
donor. - -of the requirements - in particular
Some -
the delivery requirement - defy the usual donor's
inclination. Other jurisdictions have adopted the
contract theory. We are impressed with and
persuaded by the apparent success of the contract
theory in these jurisdictions." 333 N.E.2d at
85-86 (footnotes omitted) (emphasis added) .
We note that the Legislature has essentially adopted the
contract theory. We approve the contract theory as described
in Estate - Fanninq.
of This theory provides an additional
basis upon which to affirm the District Court's judgment in
this case.
Further, the certificates of deposit were kept in a safe
deposit box in the name of Ella or Donald Patten. Donald had
signed the signature card for the safe deposit box. Section
70-1-308, MCA provides:
"Safe de~osit box - ioint tenancv.
2 .' When so
specifiedL- - agreement granting for a term 3
in the
time the right in two or more persons to use or
occupy any safe or box, commonly referred to as a
safe deposit vault or box for the safekeeping of
valuables, such interest and estate created in the
grantees shall - - joint tenancy in such vault or
be a
box - pass - - survivors and survivor upon the
and to the
death of one or more of the joint tenants with
right in such survivors and survivor - -
to have access
- - ~ossession - -
to and of such vault - - - -the
or box and
contents thereof under - terms - - agreement."
the of the
(emphasis added)
This statute ma-kes it clear that the contents of the box are
property of the surviving joint tenant. The statute places
express reliance on the agreement relating to the box, not
upon who has the key. This provision, together with the fact
that the certificates were in the name of "Ella D. Patten or
Donald W. Patten" establishes Donald's ownership of the
certificates.
We hold that Ella Patten created joint tenancies in
favor of Donald in the checking account and certificates of
deposit under gift or contract theory. We therefore affirm
the judgment of the District Court.
We concur:
Chief Justice
Justices
a1
District Judge, sitting in
place of Mr. Justice
Frank B. Morrison, Jr.
Mr. J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g .
I dissent. T h i s Court found v a l i d T o t t e n T r u s t s in
S t a t e B o a r d o f E q u a l i z a t i o n v . C o l e ( 1 9 4 8 ) , 1 2 2 Mont. 9 , 1 9 5
P.2d 989. In Cole, supra, the state tried to impose
inheritance taxes upon assets in the decedent's joint
s a v i n g s a c c o u n t s , and s e r i e s "G" U n i t e d S t a t e s S a v i n g s Bonds
held i n j o i n t names. T h i s Court found the assets in the
joint bank accounts transferred to the co-depositor not
subject t o tax, however t h e b o n d s w e r e s u b j e c t t o t h e t a x .
The f u n d s in the joint bank accounts transferred as i n t e r
v i v o s g i f t s because d e l i v e r y , i n t e n t and a c c e p t a n c e o c c u r r e d
during the decedent's lifetime. Intent is e s t a b l i s h e d b y
signing a signature card containing an agreement that the
d e p o s i t was p a y a b l e t o e i t h e r o f t h e co-depositors. This
C o u r t r e a s o n e d t h a t j o i n t bank a c c o u n t s v e s t a n i n t e r v i v o s
g i f t because of the co-depositor's r i g h t t o withdraw funds
a t any t i m e . The b o n d s f a i l e d t o t r a n s f e r as inter vivos
gifts because even though the bonds were p a y a b l e to the
decedent o r another party, d e l i v e r y never occurred because
s h e e x e r c i s e d c o m p l e t e c o n t r o l o v e r them. S h e k e p t them i n
a s a f e t y d e p o s i t box a n d " n o n e o f t h e a l t e r n a t e p a y e e s e v e r
had a c c e s s t o t h i s s a f e t y d e p o s i t box o r e v e n a t t e m p t e d t o
e x e r c i s e c o n t r o l o v e r t h e bonds." 1 2 2 Mont. a t 2 1 , 1 9 5 P.2d
a t 9 9 5 , 996.
I n Casagranda v. Donahue (1978), 1 7 8 Mont. 479, 585
P.2d 1 2 8 6 , we f o u n d j o i n t bank accounts a g a i n t o be j o i n t
tenancy of the funds with r i g h t of survivorship. Funds i n
the accounts became individual property of surviving
d e p o s i t o r and a r e n o t p a r t o f the estate. I n Casagranda,
supra, the decedent established joint savings accounts with
the respondent. The executrix of the estate sought to quiet
title on the joint bank accounts and included those funds in
the estate. We cited Cole, supra, saying "the signing of
the signature card payable to either of the co-depositors or
the survivor, settles the question of donative intent to
make a joint tenancy." 178 Mont. at 483, 585 P.2d at 1288.
Those deposits passed to the co-depositor by right of
survivorship. In both Cole and Casagranda, the surviving
co-depositors signed the signature cards along with the
decedents.
In Anderson v. Baker (1982), 196 Mont. 494, 641 P.2d
1035, this Court again used gift theory analysis to "hold
that where, as 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." 196 Mont. at
500, 641 P.2d at 1038. Anderson, supra, involved a decedent
who during her lifetime established a joint savings account
and C.D.s with the respondent. Just prior to her death, she
sought to regain exclusive control over the accounts, by
commencing action for the return of her passbook on the
savings account and the C.D.s for the removal of the
respondent's name. We held that the filing of the action to
regain exclusive control of the accounts during the
decedent's lifetime, cut off the respondent's right of
survivorship. Therefore, the deposits were part of the
estate.
In the instant case, Ella Patten established several
j o i n t accounts but refused t o relinquish control over these
deposits. She n e v e r s o u g h t s i g n a t u r e s f r o m t h e r e s p o n d e n t ,
n o r i n f o r m e d him o f t h e existence of these j o i n t accounts.
She remained s e c r e t i v e of a l l h e r f i n a n c i a l d e a l i n g s .
I distinguish the instant case from Cole and
Casagranda for the following reasons: in both Cole and
C a s a g r a n d a , a l l p a r t i e s e x e c u t e d s i g n a t u r e s on t h e s i g n a t u r e
c a r d s ; and a l l o f t h e d e p o s i t o r s l i s t e d o n t h e a c c o u n t s knew
o f t h e e x i s t e n c e o f t h e a c c o u n t s and c o u l d w i t h d r a w a n y and
all of the deposits at any time. In the instant case,
respondent did not sign the signature card. The l a c k o f
knowledge of these accounts precluded any withdraw1 by
r e s p o n d e n t o f any d e p o s i t from t h e a c c o u n t s . I would h o l d
t h a t these j o i n t accounts f a i l e d t o c r e a t e a j o i n t tenancy
of the funds because Ella Patten failed t o make a valid
i n t e r vivos j o i n t tenancy account Totten Trust. Therefore,
the f u n d s w i t h d r a w n by respondent o u t of the account a r e
p a r t o f t h e e s t a t e and n o t i n d i v i d u a l p r o p e r t y .
Respondent contends that the agreement between the
bank and E l l a P a t t e n made him a third party beneficiary.
Respondent cites Ludwig v. Montana Bank and Trust Co.
( 1 9 3 9 ) , 1 0 9 Mont. 4 7 7 , 98 P.2d 3 7 9 , f o r t h e p r o p o s i t i o n t h a t
a c o n t r a c t b e t w e e n t h e bank and j o i n t d e p o s i t o r s c r e a t e s a
power t o d r a w upon t h e f u n d s by e i t h e r d e p o s i t o r s and t h a t
t h e bank m u s t h o n o r t h i s c o n t r a c t . T h i s power r e m a i n s v a l i d
even a f t e r t h e d e a t h of a co-depositor. W h i l e t h i s power t o
draw existed in Ludwig, supra, because both depositors
s i g n e d t h e s i g n a t u r e c a r d and had a c c e s s t o t h e a c c o u n t , i t
did not e x i s t i n t h e i n s t a n t case. R e s p o n d e n t ' s power to
withdraw these funds never existed during Ella Patten's
lifetime. She effectively precluded that by withholding
information from respondent about the existence of these
accounts, t h e p o s s i b i l i t y of c o n t r o l can n o t occur w i t h o u t
knowledge. Respondent asserts this is a clear c a s e of a
third party beneficiary contract. However, Ella Patten
never demonstrated o r presented i n t e n t i o n s t o c r e a t e a t h i r d
party beneficiary contract for Donald. She d e m o n s t r a t e d
o n l y a n i n t e n d e d f u t u r e i n t e r e s t i n t h e a c c o u n t s and n o t a
present interest. T h i s makes t h e t r a n s a c t i o n t e s t a m e n t a r y
in nature.
R e s p o n d e n t c o n t e n d s S e a v e y v. F a n n i n g ( I n d . 1 9 7 5 ) , 3 3 3
N.E.2d 80, represents a better approach to resolving the
validity of T o t t e n T r u s t s . The I n d i a n a Supreme C o u r t f o u n d
valid survivorship rights in C.D.s, that the decedent
(Fanning) established i n h e r name and t h e name o f another
person (Seavy), in joint tenancy with the right of
survivorship. Fanning c o n t r o l l e d t h e C.D.s i n a l o c k box
without informing Seavey o f their existence. The I n d i a n a
Court applied t h i r d p a r t y beneficiary theory t o e s t a b l i s h
S e a v e y ' s r i g h t t o c o l l e c t t h e p r o c e e d s f r o m t h e C.D.S. This
theory avoids t h e problem of the delivery requirement of
g i f t theory. I t r e t a i n s t h e i n t e n t requirement b u t presumes
delivery even if the beneficiary lacks any knowledge of
joint accounts. The c o u r t f o u n d " a g i f t i n p r a e s e n t i o f a
contingent contractual right." I reject t h i s r a t i o n a l and
b e l i e v e g i f t t h e o r y is t h e proper approach t o take.
Respondent asserts under gift theory, Ella Patten
p r o p e r l y c r e a t e d j o i n t t e n a n c i e s with r i g h t of s u r v i v o r s h i p .
He contends the signature card settled the issue of
intention. D e l i v e r y o c c u r r e d by t h e c r e a t i o n o f t h e w r i t t e n
agreement to establish joint accounts, acceptance can be
presumed .
I agree that signing a signature card creates the
presumption of intent. "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 o r s u r v i v o r s s e t t l e s t h e q u e s t i o n of d o n a t i v e
i n t e n t t o make a j o i n t t e n a n c y . " A n d e r s o n , 196 Mont. 494 a t
499, 6 4 1 P.2d a t 1038. Casagranda, 1 7 8 Mont. a t 483, 585
P.2d at 1288. Respondent claims Ella Patten completed
d e l i v e r y by t h e w r i t t e n a g r e e m e n t (the signature card). I
disagree.
I n Anderson t h i s C o u r t s a i d :
"We a r e a l s o m i n d f u l t h a t t h e s i g n a t u r e
c a r d s a r e forms c o n t a i n i n g language
d r a f t e d by t h e d e p o s i t o r y i n s t i t u t i o n .
W h i l e t h e l a n g u a g e t h e r e o n may v e r y w e l l
d e s c r i b e agreements between t h e d e p o s i t o r
and t h e d e p o s i t o r y , i t c a n h a r d l y be
expected t o accurately express the
i n t e n t i o n s and r e l a t i o n s h i p s b e t w e e n t h e
j o i n t t e n a n t s a b o u t which t h e d e p o s i t o r y
t y p i c a l l y h a s l i t t l e , i f a n y , knowledge."
Anderson, 196 Mont. at 501, 502, 641 P.2d a t 1038.
Respondent contends t h e agreement c r e a t e d a co-equal
r i g h t t o c o n t r o l over t h e d e p o s i t . He cites, " [tlhe actual
g i f t made i s n o t t h e money i n t h e bank b u t t h e g i f t o f t h e
co-equal r i g h t w i t h t h e donor t o e x e r c i s e c o n t r o l over t h e
depositor." Cole, supra. While it remains t r u e i n most
i n s t a n c e s t h a t j o i n t accounts c r e a t e co-equal rights in the
depositors t o exercise control over the deposits, such is
not true in the instant case. Ella Patten completely
p r e c l u d e d Donald P a t t e n f r o m e x e r c i s i n g a n y c o n t r o l o v e r t h e
j o i n t accounts, p r i o r t o her death. She " r e f u s e d t o o b t a i n
a signature" of his for the signature cards. She n e v e r
disclosed to him the existence of these accounts. Without a
present right to control the deposit there is no delivery.
This right to control must be exercisable and not
hypothetical.
I would reverse and remand to the District Court for
entry of judgment for appellant/plaintiff for the sum of
$76,487.16 plus interest.
Mr. Chief Justice Frank I. Ha.swel1,dissenting:
I join in the dissent of Mr. Justice Harrison. I would
emphasize that it is pure fiction to hold that Ella. Patten
had any intention during her lifetime to make a gift of any
part of the certificates of deposit or the bank account to
Donald Patten under the facts of this case. She withheld
knowledge of the existence of both from Donald during her
lifetime to enable her to retain exclusive control over the
same.
Likewi-se,the joint tenancies cannot be sustained on a
contract theory for the same reasons.
Ella had exclusive control over the certificates of
deposit and the bank account during her lifetime by the
device of withholdins knowledge of the same from Don.a.ld. In
my view, the pr0ceed.s thereof are properly a part of her
estate. Ella Patten should not be permitted to have her cake
a.nd eat it too during her lifetime.
% ' J .UM&
Chief JustiEe
Mr. Justice Daniel J. Shea:
I join in the dissents of Mr. Justice Harrison and Mr.
Chief Justice Haswell.