                            NO.    94-148

           IN THE SUPREME COURT OF THE ,:TATE MONTANA
                                             OF
                                  1994



TERESA K. WILLIAMS,
          Plaintiff and Respondent,


JOHN B . WILLIAMS,
          Defendant and Appellant.



  PEAL FROM:   District Court of the Eighteenth Judicial District
               In and for the County of Gallatin,
               The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Marcelle C. Quist and Carolyn S. Parker,
               Quist Law Firm, Bozeman, Montana
          For Respondent:
               Richard A. Rarnler, Attorney at Law,
               Belgrade, Montana


                           Submitted on Briefs:     September 15, 1994
                                         Decided:   December 20, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
        Plaintiff Teresa K. Williams filed a complaint on July 6,
1993, in the District Court for the Eighteenth Judicial District in
Gallatin     County,    requesting ownership and title to two savings
certificates at American Federal Savings and Loan.            On February 16,
1994,     the District Court granted Teresa's motion for summary
judgment.      Defendant    John   B.   Williams   appeals.   We affirm the
judgment of the District Court.
        The issue on appeal is:
        Did the District Court err when it granted Teresa's motion for
summary     judgment?
                              FACTUAL   BACKGROUND
        Teresa was married to John's son, Johnny Williams, who died on
October 26, 1991.        Teresa and Johnny had two children, Breein and
Jeremiah.       At the     time   of his death,      Johnny had three life
insurance     policies,     two with the military and one with his
employer,    the Rebuild Center in Livingston.          Teresa was named as
the beneficiary on all three policies.             On March 4, 1992, Teresa
deposited part of the proceeds into two savings certificate
accounts at American Federal Savings and Loan.
        Both Teresa and John signed the agreement for these accounts
and were designated as trustees for the accounts.                The   parties
checked the box for trust accounts on the signature card form, and
named Teresa's children, Breein and Jeremiah, as beneficiaries in
the event that both Teresa and John died.


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        However,   the   depositor's   agreement      for    these    savings
certificate accounts provided that, with a trust account, "[iIf two
or more of you create such an account, you own the account jointly
with survivorship.P'       According to the depositor's agreement,
beneficiaries acquire the right to withdraw only if both trustees
die and a beneficiary is still alive.
        The agreement also provided that    "[tlhe person(s) creating
.   .    [this] account . . reserves the right to . . withdraw all
or part of the deposit at any time."               Thus,    the   depositor's
agreement created joint tenancy accounts, with Teresa and John as
joint tenants, and gave either the right to withdraw funds at any
time.
        Teresa wished to withdraw the funds deposited.               American
Federal stated that the consent of both parties on the signature
card would be required to withdraw funds.            John has refused to
consent to a withdrawal, although he admits in his deposition that
he did not deposit any money into the account and is not claiming
any personal right to, or interest in, the money.
        On July 6, 1993,   Teresa filed her complaint in which she
requested ownership and title to the savings certificates. On
November 19, 1993, Teresa filed a motion for summary judgment in
which she alleged that there was no genuine issue of material fact
and that she was entitled to judgment as a matter of law. On
February 16, 1994, the District Court granted Teresa's motion.
                                       DISCUSSION

       Did the District Court err when it granted Teresa's motion for

summary   judgment?

       The standard of review of a district court's summary judgment

ruling is identical to that of the trial court.                     It is a de nova

review.    Cooperv. SistersofCharity    (Mont. 1994), 875 P.2d 352, 353, 51

St. Rep. 484, 485 (citing Mnniev.CityofRoundup              (1993), 257 Mont. 429,

431,   849 P.2d 212, 214). We have held that "[slummary judgment is

proper only when no genuine issue of material fact exists and the

moving party is        entitled to a judgment as a matter of law.

Rule 56(c),      M.R.Civ.P."     Spain-Morrow Ranch, Inc. V. West (1994 ) , 2 64 Mont .

441, 444, 872 P.2d 330, 331-32.

       We have also held that:

       Once the movant [for summary            judgment1   has discharged its
       burden of proof under Rule              56(c), it    becomes incumbent
       upon the party opposing the             motion to    come forward with
       substantial evidence raising            a genuine   issue of material
       fact.

Berensv. Wilson (19901, 246 Mont. 269, 271, 806 P.2d 14, 16 (citing

Rikyv. Curl (1981), 191 Mont. 128, 622 P.2d 228)

       In its order granting Teresa's motion for summary judgment,

the District Court stated that 'I [iIt is clear from the Depositor's

Agreement that [these accounts were] . . . simply . . joint

account[sl .'I

       In this case, the depositor's agreement specifically provides

that if two or more people create an account and designate it as a


                                           4
trust     account,     that   they     "[olwn    the   account    jointly    with
survivorship."
        John contends that the depositor's agreement created an actual
or constructive trust and that, as a co-trustee, his signature is
required for withdrawal of any of the funds deposited.
        Teresa argues that although the savings certificate accounts
were designated as "trust accounts,"                they are actually joint
tenancy accounts because the beneficiaries only receive an interest
in the accounts if they are still living when the creators die.
Teresa argues that only she or John could claim a present interest
in the account.        We agree.      Furthermore,     we can find no factual
basis in the record for John's claim that a constructive trust
should be imposed pursuant to § 72-33-219, MCA.
        In this case, Teresa and John owned the savings certificate as
joint tenants pursuant to the depositor's agreement.
        We have held that joint tenancy bank accounts                    "[h]ave a
special attribute which allows either joint owner . . to acquire
complete control over the entire account."             &man v. bzwis (1992) , 252

Mont. 508, 510, 830 P.2d 1294,                1296 (citing Casagranda v. Donahue

(1978),   178 Mont. 479, 483, 585 P.2d 1286, 1288).              Thus,   any owner
of a joint account can withdraw the entire balance of the account
at any time, without the other owner's consent.               In addition, the
account    agreement   provided      that "[tlhe person(s) creating . . .
[this] account . . . reserves the right to . . . withdraw all or
part of the deposit at any           time."


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          We conclude that there is no genuine issue of material fact,
and that the savings certificate agreement at American Federal
establishes joint tenancy accounts, as the plain language in the
depositor's      agreement    indicates.        We also conclude that Teresa is
entitled to judgment as a matter of law, since, as the creator of
the account, she reserved, by the terms of the agreement, the right
to withdraw all of the deposit             at   any   time.

          Even if we agreed with John that the deposit agreement created
a trust   for the children's benefit, the result would be the                  same.

Section      72-33-401,      MCA,   provides that             "[ulnless   a trust is
expressly made irrevocable by the trust instrument, the trust is
revocable by the trustor."          According to John's theory, Teresa was
the trustor and there was no provision in the deposit document
which made it irrevocable.
      We conclude that the District Court did not err when it
granted Teresa's motion for summary judgment.
      The judgment of the District Court is affirmed.
      Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




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