Rem. Rev. Stat., § 3348 [P.C. § 373] (3) and Rem. Rev. Stat. (Sup.), § 3717-41 [P.C. § 4564-61], referred to in the majority opinion, revive, respectively, the doctrine of survivorship as to joint accounts in mutual savings banks, and joint ownership of shares in building and loan associations. Neither of the bank accounts here in question falls *Page 490 within the purview of either of these statutes. Rem. Rev. Stat., § 3249 [P.C. § 292], as stated by the majority, contains no provision respecting joint tenancy or survivorship, but merely operates to protect banks and trust companies on account of payments made from a joint deposit in accordance with the contract under which the deposit was made. As to the effect of these statutes upon questions here presented, I am in accord with the majority.
I cannot, however, agree with the majority in holding that respondent administratrix is not, under the law, required to account to the estate for community funds placed in the joint accounts, and which she has withdrawn from the banks. In the contract between Mr. and Mrs. Ivers and the National Bank of Portland, set forth in the majority opinion, I find nothing which in my opinion even tends to show on the part of the depositors an intention to create, as between themselves, a joint tenancy, with right of survivorship, in the money deposited. The contract under which Mr. and Mrs. Ivers deposited money in the Spokane bank more nearly suggests a joint tenancy, but in my opinion does not contemplate the creation of a true joint tenancy with the right of survivorship.
Rem. Rev. Stat., § 1344 [P.C. § 3426] (Laws 1886, p. 165), reads as follows:
"If partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, but descend, or pass by devise, and shall be subject to debts and other legal charges, or transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if such deceased joint tenant had been tenants in common: Provided, that community property shall not be affected by this section."
This statute by its terms excludes community property from the operation of the law. As to husband and *Page 491 wife, therefore, in their dealings with community property, the statute quoted is not controlling, although the legislative policy in abolishing the right of survivorship as between joint tenants should be considered.
By Rem. Rev. Stat., § 6894 [P.C. § 1440], referred to in the majority opinion, it is provided that husband and wife may contract with each other concerning the status or disposition of community property, the contract to become effective upon the death of either. Such a contract must be in writing, witnessed, and acknowledged. I am convinced that, save as otherwise provided by law, this statute is exclusive, and that husband and wife cannot contract between themselves and by such contract vest title to community property in the survivor, save by a contract executed in accordance with the statute. The legislature has abolished the right of survivorship as between joint tenants, but has provided that husband and wife, as to community property, may make a statutory contract which, in effect, establishes the right of survivorship as between them, as to community property covered by the contract.
The fact that, in this case, the widow has withdrawn the money from the banks, is immaterial. In honoring her checks, the banks are protected by the contract pursuant to which the money was deposited, but the mere fact of withdrawal does not change the status of, or title to, the money. If husband and wife open a joint account, such as those here in question, with community funds, the withdrawal of all or a portion of the money by one spouse during the lifetime of both would not immediately transmute the money withdrawn into the separate property of the spouse who received it from the bank. To so hold would go far beyond the doctrine of joint tenancy and the principle of survivorship. If, then, the nature of the property is to be *Page 492 changed from community to separate, either during the life of both spouses, or at the death of one of them, that change can be made only by a valid contract between the spouses, effective inpraesenti; by contract between the spouses in accordance with § 6894; or, of course, by will.
Such contracts as are here in question between banks and their depositors are manifestly made for the protection of the banks. As to certain of such contracts, the law says that particular results follow therefrom, but that is not true of the contracts here in question. By neither of these contracts did Mr. and Mrs. Ivers purport to contract with each other. In the Spokane contract, they "acknowledged" to the bank that the interest of each in the money deposited was several as well as joint, but there is not the slightest suggestion in the contract that they intended to change, or believed that they were changing, as between themselves, the status of the money which they deposited.
I find nothing in their contracts with the banks upon which a holding that the principle of survivorship attached to either account may lawfully be based.
As to Mr. and Mrs. Ivers, the bank was fully protected in paying all or any portion of the money to either, and third parties would, in proper cases, be protected in dealing with Mrs. Ivers in connection with money which she might withdraw from the account; but as between Mr. and Mrs. Ivers, the money remained community property, subject to the rights of the community as represented by either spouse, and subject to administration as part of the community estate upon the death of either spouse.
The majority quotes from the opinion of this court In rePeterson's Estate, 182 Wn. 29, 45 P.2d 45, but the quotation manifestly refers to "a transfer to joint tenants," and the principle stated in the quotation, *Page 493 it seems to me, does not apply to a contract between husband and wife concerning community property, or to a joint account opened by the depositors. If a third party opened the account for the persons in whose names the account stands, a different question would be presented. Certainly, it cannot be the law that husband and wife may open a joint account, even in a mutual savings bank, with community funds, and the property be transmuted the next day into the separate property of one spouse upon withdrawal of the deposit by that spouse and a new deposit, in his or her own name, opened in another bank. Such a transaction could not stand for a moment either against creditors or against the other spouse. Subject to the rights of creditors, a husband and wife may give to each other separate property, or the interest of the donor in community property, but that is an entirely different matter, and depends upon the existence of a gift, legally effected.
The opening of a joint account made up of community funds by husband and wife is a perfectly natural and reasonable act, and may result in mutual convenience for both parties. It renders funds available for use in case of death or disability of either spouse. The same effect follows in case of the absence of one spouse. There is no reason, however, in law, equity, or good conscience, why money withdrawn from such an account, either before or after the death of one spouse, should immediately become the separate property of the spouse who receives it. Neither do I see any good reason for holding that the death of one spouse affects the title to the money, whether it remains on deposit or is withdrawn from the bank. Husband and wife may provide for the transfer of title to community property to the survivor upon the death of one spouse, but such a result must be accomplished in accordance *Page 494 with law, by contract, or a will regularly admitted to probate.
An account opened with community funds in the name of the husband or wife alone does not become the separate property of the spouse in whose name the money stands, in the absence of any valid agreement to that effect, nor is the title to any such funds changed upon being withdrawn from the bank, either before or after the death of the other spouse.
The statutes above referred to, establishing the right of survivorship as to certain joint accounts, afford no basis for extending the doctrine beyond the express terms of the respective laws. The declared general legislative policy of this state is still positively and absolutely contrary to the right of survivorship as between joint tenants.
In my opinion, the character of the community funds here in question has never changed, and respondent should be required to account therefor in the course of the administration of the estate of her deceased husband. I accordingly dissent from the conclusion reached by the majority. In my opinion, the order appealed from should be reversed.
BLAKE, C.J., MAIN, and MILLARD, JJ., concur with BEALS, J. *Page 495