No. 8 7 - 2 8 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JOHN J. VOGELE, JR.,
Plaintiff and Respondent,
-vs-
THE ESTATE OF ELSIE MAY SCHOCK,
and MARYLYN FAY VOGELE and -GHdSk&4Ru
RAY VOGELE Personally and in their
capacity as Personal Representatives
of the ESTATE OF ELSIE MAY SCHOCK,
Defendants and Appellants.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable R. C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ira Eakin, Billings, Montana
Russell L. Culver, Baker, Montana
For Respondent:
Richard L. Burns, Glendive, Montana
Submitted on Briefs: Sept. 3, 1 9 8 7
Decided: November 24, 1987
Filed: Mn\:2/S198t
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Estate appeals the summary judgment of the
District Court of the Seventh Judicial District, Dawson
County, in favor of plaintiff John Vogele. We affirm.
The Estate presents two issues for our review:
1. Did the District Court err in finding that the
ownership interest created by the certificates of deposit was
a joint tenancy?
2. Did the District Court abuse its discretion in
granting Vogele's motion for summary judgment?
On December 22, 1982, the First National Bank and Trust
of Wibaux, Montana, issued two certificates of deposit
(C.D.s) to Elsie May Schock and her children, John J. Vogele,
Jr. , Carla Ray Vogele , and Marylyn Fay Vogele. One C.D. had
a cash value of $32,050 and the other $22,853. The C.D.s
matured in June of 1985. Each C.D. states on its face:
If more than one depositor is named
above, this certificate and the deposit
evidenced hereby shall belong to said
depositors as joint tenants with right
- survivorship, but the bank may deem
of
and treat either or any of said deposi-
tors or the survivors or survivor as the
absolute owner... [Emphasis added.]
By April of 1983, "hard feelings" had developed between
Vogele and his mother. On November 30, 1984, Elsie May
Schock executed her Last Will and Testament. The third
clause of her Will states:
At his request, I have made full and
final settlement with my son, JOHN JIM
VOGELE, JR., and have paid him what
would normally be his inheritance, and
I, therefore, specifically exclude him
from any share of my estate that may be
remaining at the time of my death.
Elsie Schock died on April 27, 1985. In June of 1985,
the C.D.s were cashed by the personal representatives of
Elsie's estate, Marylyn Vogele and Carla Vogele. The pro-
ceeds, less interest, were deposited in new C.D.s in the name
of the Estate. The interest was deposited into the Estate's
regular account.
John filed a complaint and later moved for summary
judgment. John contended that he was entitled to one-third
of the proceeds of the certificates of deposit as a joint
tenant with Marylyn Vogele and Carla Vogele, John argued
that the joint tenancy was created at the time of the written
instrument, and Elsie's will did not raise the issue of
ownership of the C.D.s during her li-fetime. John concluded
that the disinheritance clause would not apply to the C.D.
proceeds because joint tenancy property was not part of
Elsie's probate estate.
On March 13, 1987, the District Court granted John's
motion for summary judgment. On May 5, 1987, the court
awarded John $20,983.70 plus court costs of $67.40.
Issue 1. Joint Tenancy
On appeal, the Estate contends that John was merely
entitled to one-fourth of the proceeds because he was a
tenant-in-common. The Estate claims-that the joint tenancy
language on the C.D.s was only inserted for the benefit of
the Bank and does not determine John's status as a joint
tenant.
In analyzing this issue, we look to Casagrande v.
Donahue (1978), 178 Mont. 479, 585 P.2d 1286, where a dece-
dent had established joint savings accounts with a friend.
The executrix of decedent's estate tried to include the bank
accounts in the estate and thereby defeat the survivor's
right to the accounts. The District Court granted summary
judgment in favor of the surviving joint tenant. This Court
affirmed, holding that the joint savings accounts became
individual property of the surviving joint tenant upon dece-
dent's death. Casagrande, 178 Mont. at 484, 585 P.2d at
The plain language of Elsie's C.D.s creates a joint
tenancy among Elsie, John and his two sisters. The C.D.s
specifically state that they belong to the survivors by right
of survivorship. We find that the establishment of the joint
accounts by Elsie created a right of survivorship in the
C.D.s for the benefit of the joint tenants named thereon.
The Estate further contends that Elsie intended to
eliminate John from the proceeds of the C.D. s, as shown by
the disinheritance clause and several affidavits. The Estate
attempts to support its position with Anderson v. Baker
(19821, 196 Mont. 494, 641 P.2d 1035, where the donor deposi-
tor of joint bank accounts sought the return of her funds
prior to her death. We held:
[Wlhere, as here, a depositor during -
his
- - lifetime raises the issue of
or her
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. (Empha-
sis added.)
Anderson, 196 Mont. at 500, 641 P.2d at 1038.
We distinguish Anderson from the present case. Ander-
son dealt with a living depositor making a written demand and
filing a lawsuit to recover her C.D.s from another joint
tenant. In the instant case, Elsie made no such attempts.
The disinheritance clause in Elsie's will is not an affirma-
tive act taken "during her lifetime" because a will does not
take effect until the death of the testator and is therefore
revokable. Something more substantial than a disinheritance
clause must occur to bring the C.D.s within the Anderson
exception. Furthermore, the disinheritance clause refers
only to the probate estate. Joint tenancy property is not
part of a probate estate. As we held in Casagrande, 178
Mont. at 484, 585 P.2d at 1289, the joint tenant's right of
survivorship, "which is the essential characteristic of any
joint tenancy, cannot be defeated by the executrix of dece-
dent's estate, in an attempt to satisfy general devises in
the Will. "
The Estate also presented several third-party affida-
vits, which stated that Elsie did not want John to share in
any of her property. However, we need not address the proba-
tive value of the affidavits because Elsie never took any
positive action in conformance with the affidavits. At any
time before her death, Elsie could have asked the Bank to
reissue the C.D.s without John's name and thereby terminate
John's interest. Section 32-1-442, MCA. She did not.
Elsie's conduct controls, not the third-party affidavits.
Her lack of action never rose to a level of conduct manifest-
ing an intention to eliminate the joint tenancy.
Finally, the Estate claims that Elsie did not sign the
C.D.s and therefore did not intend to create a joint tenancy.
Estate's claim fails. The C.D.s were not accompanied by
signature cards. The C.D. forms had neither the requirement
nor the designated space for a signature. Elsie knowingly
established the C.D.s with the rights of the joint tenants
clearly set forth in the deposit agreement.
In conclusion, we note that a joint tenancy account is
a vehicle for the nonprobate disposition of estate assets.
The method is quick, convenient, and inexpensive. Elsie's
ownership interest as a joint tenant ceased upon her death,
and the joint property immediately passed to the surviving
joint tenants. Section 70-1-307, MCA. Absent any
affirmative attempts by Elsie to divest or revoke Vogele's
interest during Elsie ' s lifetime, we find that the language
of the C.D.s conclusively establishes Elsie's intention to
create a joint tenancy with right of survivorship. We hold
that the District Court correctly awarded judgment to John
Vogele, Jr.
Issue 2. Summary Judgment
The Estate contends that Elsie's true intent remains in
issue and, therefore, summary judgment was inappropriate.
On review, we will uphold the summary judgment if there
is no genuine issue of material fact and the evidence shows
the moving party is entitled to judgment as a matter of law.
Sevalstad v. Glaus (Mont. 1987), 737 P.2d 1147, 1148, 44
St.Rep. 930, 932.
As the party moving for summary judgment, John had the
burden of establishing the absence of any genuine issue of
material fact. He met this burden. John did not challenge
any of the Estate's facts. He stated in his Respondent's
Brief: "The facts of this case are accurately set forth in
Appellant's Brief on Appeal.'' Accordingly, we find no factu-
al dispute.
When the movant has met this initial burden, the party
opposing the motion must supply evidence supporting the
existence of a genuine issue of fact. Fleming v. Fleming
Farms, Inc. (Mont. 1986), 717 P.2d 1103, 1106, 43 St.Rep.
776, 779. Rule 56(c), M.R.Civ.P. We find that the evidence
produced by the Estate is insufficient to show a factual
dispute.
We c o n c u r :