*292 Concurring Opinion
Muechie, J.Judge Thaxter and I feel very real regret that we cannot give our unqualified adherence to all that Judge Merrill says in the very able opinion he has prepared in this case, in which, we feel, the court can well take pride. We can, and do, concur in the result, but we cannot subscribe to the declaration that the court foreclosed the possibility of recognizing a joint tenancy under the present facts in either Staples v. Berry, 110 Me. 32; 85 A. 303, or Garland, Appellant, 126 Me. 84; 136 A. 459.
In those cases, the court recognized the unities Judge Merrill notes, and their application to joint tenancies, but was • dealing with bank accounts exclusively, and both opinions make it clear that the unities would not, necessarily, preclude the possibility of a joint tenancy on the present facts. Judge Cornish said, in the Staples case, that the requirement of the unities:
“would seem to contemplate conveyance or devise by A, the sole owner, to B and C, as joint tenants, not a splitting up of A’s ownership so that B becomes a joint tenant with A. But granting for the sake of argument that this might be done by carefully worded conveyance, it can hardly be said that this naked book entry meets the requirements which is so jealously guarded by the law, and that is the only evidence in the case to disclose the husband’s intention.”
Chief Justice Wilson said, correspondingly, in the Garland case, that:
“Even if the four essentials of a joint tenancy can be present in case of a gift of property direct from one person to another, at least all the essentials of a gift as to surrender of absolute control and delivery must be complied with.”
The “conveyance or devise” to which Judge Cornish referred might cover a field of lesser range than the “gift” of *293Chief Justice Wilson, but while a “devise” relates exclusively to real estate, the word “conveyance” has a scope sufficiently broad to embrace both real and personal property and in the form “convey” is used regularly in bills of sale. The outstanding language of Judge Cornish, to us, in his declaration that the unities:
“would seem to contemplate,”
rather than they would require something other than a “splitting up.”
The ratio decidendi of these cases, as of each of those Judge Merrill declares approves their common doctrine, is not that the unities are essential to the creation of joint tenancies, but that such tenancies cannot exist in the absence of proof of a gift, or an intention to give. We make no reference to any of the cases said to carry approval of a doctrine of absolutism with reference to the unities and their application to joint tenancies, except Reed v. Cromwell et al., 134 Me. 188; 183 A. 758, which is the only one of them where the court was dealing with corporate stock. In that case, it is true, a stock certificate standing in the name of A and B “and the survivor” was held not to create a joint tenancy, but the ratio decidendi is carried in the words that the substitution of the particular certificate for an earlier one:
“did not effect a valid gift inter vivos.”
The opinion in the Reed case was written by Judge Hudson for a court of which Judge Thaxter was a member. I was not. Neither at the time it was issued, nor now, can he, or I, find anything in it repudiating the dicta of Judges Cornish and Wilson declared for the express purpose, as we believe, of eliminating the possibility that the decisions could be read as closing the door against the recognition of joint tenancies created by the “splitting up” of titles of unusual facts. Judge Hudson noted that the Garland case, without dissent, discussed the contract doctrine which may be said
*294to have ruled Chippendale v. North Adams Savings Bank et al., 222 Mass. 499; 111 N. E. 371, and rejected it, but his opinion, like that in the Garland case, shows that the rejection was on the ground that no gift inter vivos had been proved. Thereafter, it is true, he said that the opinion demonstrated:
“how the four essential elements of joint tenancy, viz: unities of time, title, interest and possession, did not exist”
in the transaction with which the case dealt. It is true, also, that express declaration was made that the court did not choose to overrule the Garland case. Such a statement, however, can give that case no broader scope than it had when the opinion it carries was issued.
We subscribe to the view that attempts to create joint tenancies should be tested by the common law rule of the four unities. We believe they were satisfied in the instant case. They were declared at a time when the principal, if not the only, type of property available to be held in joint tenancy was tangible property. Each and every item of it, real or personal, had to be owned, at all times, by some one or more persons. The ownership of any one person in any single item of it was not interrupted when he executed a conveyance which conveyed some part of his title to another and purported to convey another part of it to himself. He continued to hold the latter part under his earlier, or original, title. Title to tangible personal property passes by delivery, if so intended, but title to a part of it cannot pass except by a writing describing or identifying it, the person conveying it, the part conveyed, and the person to whom it is conveyed. The same limitations, so far as they relate to conveying property, are applicable to real estate. They cannot be applied to corporate stock. Any one share of stock in a corporation is identical with each and every other. It is neither tangible nor identifiable. It cannot be described. It cannot be segregated or set apart from others *295of its kind. It is represented by a certificate, it is true, and that certificate is tangible but the certificate itself has no value, as such, and is not property which can be placed in joint tenancy. A certificate representing stock may be endorsed, and will pass by delivery.
The opinion of Judge Merrill recognizes a distinction between shares of stock and the certificates representing them. We believe the distinction goes deeper. He asserts that a certificate, being tangible, comes within the rule of the unities. Recognizing that it is in fact tangible, we believe that it can be distinguished from tangible property by reason of its representative quality, and the freedom with which, when endorsed, it may pass from hand to hand and carry title not only to itself but to the stock it represents. We believe, for those reasons, that the unities may be said to be satisfied, in a stock transaction, when the owner of the certificate and the stock endorses the former and surrenders it to the corporation which issued it to secure a new certificate issued in the names of himself and another as joint tenants, without the formality of requiring as a preliminary that a new certificate be issued in the name of, and endorsed by, some third party. The only tangible things owned in such a case are the old certificate and the new. The title of the intended joint tenants in such a case to the stock and to the certificate representing it accrued at the same time and is represented by the same instrument. Such is not the case where tangible property is involved.
We are not unmindful of the fact that application of the unities principle to stock transactions will for all practical purposes preclude the possibility of joint tenancies in such property except in cases where the parties act at the place where a particular corporation has its domicile or a transfer office. Nor can we be unmindful of the fact that recognition of their application in the strict manner in which that application is made in Judge Merrill’s opinion has forced such strained construction as that parties have ere*296ated tenancies in common contrary to their express intention, that an owner has conveyed away his full title when he never intended to do so, and that he has created either an estoppel against himself or a contract which binds him, and his estate.
Judge Merrill’s opinion records that in more than one instance the corporations which issued the stock certificates in controversy required the parties to the contract the opinion declares was validly entered into by them to execute what are designated as “joint tenancy agreements” before they would issue the joint tenancy certificates. Because of this recognition, we refer back to the language used by Judges Cornish and Wilson in the Staples and Garland cases. Judge Cornish declared that a:
“naked book entry”
could not meet the requirements of the law. Judge Wilson said merely that there must be:
“surrender of absolute control and delivery.”
When parties have executed a formal agreement to evidence their undertaking to place property in joint tenancy, it cannot be said that they are attempting to rest on a “naked book entry,” nor can it be denied that there have been both “surrender of absolute control and delivery.”
We would reach the result declared in the opinion of Judge Merrill by holding that after the issue of the stock certificates in question, Charles T. Burgess and Charles M. Burgess were joint tenants by reason of the fact that the unities of time, title, interest and possession were all satisfied in the transaction in which they engaged.
In all other respects we concur in Judge Merrill’s opinion.