Volume 167 — Indiana Appellate Court Reports

1. PERSONAL PROPERTY — <italic>Joint Tenancy — Third Party Beneficiary</italic> <italic>Contract.</italic> — A third party beneficiary contract exists where a joint<page_number>Page 652</page_number> tenancy with right of survivorship is created. As a contract, the gift requirement of delivery is eliminated, however, the intent of the donor-creditor is of paramount importance in a third party beneficiary contract. p. 654. 2. PERSONAL PROPERTY — <italic>Joint Tenancy — Intent.</italic> — Donative intent is presumptively established by the use of words disclosing a joint tenancy relationship. Parol evidence should be admitted to rebut the presumption only where the terms of the contract permit a reasonable construction which negatives the donative intent and the intent to create a right of survivorship in the property. p. 657. 3. PERSONAL PROPERTY — <italic>Joint Tenancy — Intent v. Meaning.</italic> — In a joint tenancy contract, it is presumed that the donor intended to use the words in the instrument, however, the meaning which the donor attached to those words may be examined by extrinsic evidence unless the meaning is plain. p. 659. 4. PERSONAL PROPERTY — <italic>Joint Tenancy — Local or Trade</italic> <italic>Standard.</italic> — In determining the meaning of the words used, a peculiar local, trade, or individual usage may be considered. p. 660. 5. PERSONAL PROPERTY — <italic>Joint Tenancy — Intent.</italic> — The intention of the parties is to be determined in the light of surrounding circumstances which existed at the time the contract was made. p. 661. 6. PERSONAL PROPERTY — <italic>Joint Tenancy — Delivery.</italic> — Retention of control is a factor which may defeat a gift delivery requirement. Since delivery is not a requirement for a third party beneficiary contract creating a joint tenancy, retention of control will not defeat the joint tenancy. p. 663. 7. PERSONAL PROPERTY — <italic>Joint Tenancy — Income Retention.</italic> — Income retention during the donor's lifetime will not defeat a survivor's interest in joint tenancy property. p. 663. 8. PERSONAL PROPERTY — <italic>Joint Tenancy — Investment Securities.</italic> — IC 26-1-8-309 (Burns Code Ed. 1974) states that an indorsement does not constitute a transfer until delivery of the security. The Indiana Comment to IC 26-1-8-313 acknowledges the impracticability of requiring possession of the certificate by two persons at the same time, therefore, delivery to one joint tenant is constructive delivery to the other. p. 664. 9. PERSONAL PROPERTY — <italic>Joint Tenancy — Unities.</italic> — By statute, Indiana recognizes the right of survivorship in joint funds or assets if the instrument expresses the right. IC 32-4-1-1 (Burns Code Ed. 1973.) The statute does not incorporate the common law unities of time, title, interest and possession. p. 665. 10. PERSONAL PROPERTY — <italic>Joint Tenancy — Testamentary</italic> <italic>Requirements.</italic> — Even where the purpose of the joint tenancy is testamentary in<page_number>Page 653</page_number> nature, failure to comply with the laws governing testamentary dispositions will not defeat the ownership claims of the surviving joint tenant. p. 667. 11. PROCEDURE — <italic>Summary Judgment — State of Mind.</italic> — Although the issue in an action involving the intent of the creation of a joint tenancy may be considered the donor's state of mind, it is not the "state of mind" precluding summary judgment. p. 668.