dissenting:
In 1821 the legislature passed an act declaring that “if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to executors or administrators, and be considered to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.” (Rev. Stat. 1845, P- 299-) This act applies to both real and personal property. (Hay v. Bennett, 153 Ill. 271.) It not only abolishes the common law estate of joint tenancy, but it prohibits its creation by will, deed or contract. It declares that every estate which would have been a joint tenancy under the common law must be considered to every intent and purpose the same as if it* were a tenancy in common, — that is, where the estates were held by the tenants in their own right or in the right of their wives the tenancies were converted into tenancies in common. The right of survivorship, which is and always has been the principal and distinguishing incident of joint tenancies, was taken away, and upon the death of the tenant without having made partition his estate passed to his heirs or his personal representative and did not pass to the surviving tenant. (Mette v. Feltgen, 148 Ill. 357.) This rule was relaxed in 1827 in so far as it applied to real property, (Svenson v. Hanson, 289 Ill. 242,) and in 1919 the legislature again provided for joint tenancies in personal property. (Laws of 1919, p. 634.) It is now possible by an instrument in writing expressly declaring an intention to create a joint tenancy with the right of survivorship in real or personal property to create such an estate. Joint tenancies, however, are now, and have always been, looked upon with disfavor in this country, and the courts, regarding the right of survivorship as productive of injustice because it makes no provision for posterity, will lay hold of any indication of intent in order to construe an instrument as creating a tenancy in common and not a joint tenancy. (Mustain v. Gardner, 203 Ill. 284; Staples v. Berry, 110 Me. 32, 85 Atl. 303; 1 Tiffany on Real Property, — 2d ed. — 631; 2 Schouler on Wills, — 6th ed. — 1450; 7 R. C. L. 813; 23 Cyc. 485.) The offensive right of survivorship, which is the distinguishing incident of joint tenancies, is a relic of the feudal system, and the policy of the American law has always been opposed to it. The deposit involved in Erwin v. Felter, supra, was made in 1905, and the statement made in that opinion to the effect that a joint tenancy might “exist in personal property” in Illinois prior to July 1, 1919, was not the law.
In 1917 a proviso was attached to section 1 of the Joint Rights and Obligations act, which reads: “When a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons, payable to them, jointly or severally evidenced by a writing signed by them when the account is opened, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons, whether the other or others be living or not; when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter and the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made.” (Laws of 1917, p. 557.) This proviso is awkwardly drawn, and there seems to be no relation between it and the subject matter of the statute to which it is attached. Whatever it means, it is clear that it does not purport to authorize the creation of a joint tenancy with the incident of survivorship. It certainly was not designed to make that a gift which according to the language of the instrument signed by the depositors and other evidence was not a gift, present or future, but only a convenient way of drawing money. The section does nothing more than protect the bank. The bank, taking the receipt of the surviving depositor, is discharged from liability for what it pays out, but that does not determine the right to the fund as between the estate of the original owner and the surviving joint depositor. This construction was placed on an act almost identical in language in Gordon v. Toler, 83 N. J. Eq. 25, 89 Atl. 1020. That the legislature knew that this act did not grant the right to persons in this State to create a joint tenancy in personal property with the right of survivor-ship is evidenced by the fact that in 1919 it passed an act specifically granting that right.
There are four essential characteristics of a joint tenancy: unity of interest, unity of title, unity of time and unity of possession. The distinctive incident of a joint tenancy is the doctrine of survivorship. This is the natural sequence of the union and entirety of their interest, the interest of the tenants being one and the same. One has not originally a distinct moiety from the other, and if by any subsequent act the interests become separate and distinct the joint tenancy instantly ceases. The joint tenancy must be created by one and the same conveyance at one and the same time. Whether it is possible for an owner of property to split up his ownership with another and thereby create a joint tenancy is doubtful, but, granting that by a carefully worded conveyance it could be’ done, it certainly cannot be said that the instrument which Mary J. Moser and Agnes L. Alton signed established such a technical estate. According to the very terms of this instrument it is contemplated that either tenant may withdraw for her own use a part of the joint fund, and such an act would immediately destroy the joint tenancy. A joint tenancy implies that the interests of the joint holders shall remain the same until death, and then that the survivor shall take all. Here either party could at any time withdraw the entire deposit, so that the joint property would be dissipated and the survivor would take nothing. Furthermore, deposits were made by Mrs. Moser .from time to time after the original deposit was made. Were these deposits transferred to the two tenants as they were made, so that a joint tenancy was created ? Was the mere act of depositing a sum of money in. this account the technical conveyance in joint tenancy so jealously guarded by the law? This agreement lacks most characteristics, if not every characteristic, of a joint tenancy, and if it had been possible under the law to have created a joint tenancy in personal property at the time this joint deposit was made, none was created by this transaction.
It must be remembered in the consideration of a case of this character that the money belonged to one of the parties before it was deposited and that the money must pass somehow to the other party before it becomes his property. There being no question of a valuable consideration, the title of the survivor must rest on gift, trust or bequest. There can be no claim that the fund is bequeathed to the survivor, because the instrument is not in requisite form to constitute a valid bequest. Unless there is a transfer of title during the life of the owner the survivor gets no title. This transfer may be made directly to the donee or it may be made indirectly through a trustee. There are some cases which hold that the mere deposit of a fund in a joint account completes a transfer of the fund so that the survivor may claim the whole. These cases are based on a misconception of the real nature of the contest. To be sure, there is a contract between the bank and the depositors which protects the bank, but the real contest in this case and others like it is between the estate of the deceased, who owned the money that was deposited in the fund, and the survivor. It must be remembered that the bank is a mere stakeholder and that property which belonged to one person is being claimed by another. It is clear in this case that there was no gift, because the owner retained control of the property. There was no unqualified delivery to the bank as trustee nor to the joint depositor as donee. The owner could have withdrawn all the fund and made a different disposition of it. The question is fully discussed and settled against the contentions of appellee in the following well-considered opinions : Staples v. Berry, supra; Holman v. Deseret Savings Bank, (Utah) 124 Pac. 765; Whalen v. Milholland, 89 Md. 199, 43 Atl. 45; Flanagan v. Nash, 185 Pa. St. 41, 39 Atl. 818; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840; In re Brown’s Estate, 113 Iowa, 351, 85 N. W. 617. See Annotation L. R. A. 1917C, 550-573.
As I understand the law, the fund involved belongs to the estate of Mary J. Moser.