Kephart v. Johnson , 203 Kan. 262 ( 1969 )

The opinion of the court was delivered by

O’Connor, J.:

The appellant, Hazel M. Johnson, has filed a motion for rehearing or modification of our decision in In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286, insofar as it relates to the ownership of the checking account in The Macksville State Bank. After careful consideration we have concluded that the motion for rehearing should be denied, but the decision must be modified.

As indicated in the majority opinion, we deem the language of the “Signature Card” portion of the instrument signed by Hazel and Charles to be uncertain and ambiguous, and resort must be had to parol evidence in an effort to ascertain the intention of the depositor at the time the account was created. After further study of the record, we are convinced the district court erroneously determined that parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the instrument was inadmissible. As a result, the parties were not permitted to develop fully their respective positions by the introduction of extrinsic evidence. Accordingly, Syllabus f 9 and the last paragraph on page 697 of the majority opinion are deleted.

The district court’s judgment in respect to the checking account is reversed and the case is remanded for further proceedings in accordance with the views expressed herein.

It is so ordered.