(dissenting.) I. The majority opinion is fine literature. It discloses much research and learning. It is clear in the statement of thought units. On first reading, *90while reading, one finds nothing to 'differ from. Having finished, there seems to be nothing objectionable that is outstanding. Somewhat later, one finds a qualm of unrest suggested, such as sometimes follows too enjoyable a banquet. The reader can readily recall many fine passages and sound statements of law. But it now occurs to him that he cannot so readily understand why the opinion affirms. On another reading, made for the purpose of getting clear on this point, he does find some grounds for affirmance stated. Part of them are buried in the argument, and all the grounds are few in number. Every reason set forth as a ground for affirmance is contrary to well settled law, and to both older and recent decisions in this court. In some of these opposing decisions, the writer of the majority opinion and some of those who now join him spoke for the court. The opinion malíes no reference to any of these. In a word, the final conclusion would seem to be reached because every argument urged in its support is untenable.
Reference has been had to grounds buried in argument. Some confusion exists as to what is argument, and what is relied upon as a ground for the final conclusion reached^. In this class are attempts to construe the three writings into which the parties entered. This construction deals with the purpose and object of the writings, — the relation of each of the writings to each of the others, and to all three; and it singles out one part of the writings and construes it to mean what it most clearly does not say. I may as well say at this point as say it anywhere that, in my opinion, this case presents no writings to be construed ; that the writings themselves are so clear that no judicial construction is warranted; that here there is no question as to what was done and intended; and that the sole question is, What is the effect of that which has been written? To what that effect is, I shall, of course, recur later.
The majority declares:
“The determination of the question here involves only the proper construction of the three writings on wliich defendants rely to defeat her claim;” that “within the cover of these writings must be found all that these men had in mind touching their personal relationship, and their relationship to and interest in the property accumulated by the joint efforts.”
*91It declares that we must look to “what is written in these three instruments, taken as one instrument, to find the thought that lies back of the writing’, — the purpose and intent of the parties in the making of the writing.” It is said that “within these instruments the height, depth, width, and length of that purpose must be found;” and that'to the three writings, construed as one, we must look to determine status created by the writings, and whether the three create a joint tenancy. There is more along the same line; but this must suffice to point out that it is recognized, for the time being, that the question before us must be resolved by treating the three writings together, as expressing what there is to decide. "With this much I am in full accord. I do not find it so easy, however, to be in accord also with other parts of the opinion, wherein it is declared that we must turn to the third “for further light as to the purpose and intent of these parties and the status created by the preceding writings;1 ’ that this is so, for one thing, because the last writing “is the last expression” as to the “subject-matter of all three contracts;” and that “it might well be considered the controlling expression, determinative of their relationship and their rights in and to the property,” because it is the last expression. I pass, without further comment, the naked fact of the contra-dictoriness of these positions, and next address myself to a consideration of what is, in truth, the relative standing of the three writings. It is true that some of the later writings express the idea that the makers deem them necessary to clarify earlier ones. But I venture to deny that either the first or second writing need any clarifying. I venture to assert that none of the Writings did any clarifying; that no material change was worked by any writing in any former one; that the last is no more controlling than the first; and that in this ease there is the common case of doing much needless writing, and yet leaving all that is written too clear for the need of interpretation on part of a court. A short analysis of each of the three writings will, I think, demonstrate this, — will demonstrate that, in all vital particulars, each of the three writings makes like provision and clear provision.
In the first, the object is stated to be “to provide for the future uninterrupted prosecution of the business of life insur-*92anee iru wbicb we are now or may be hereafter engaged and mutually associated.” The second declares it is made in view of the fact that the past association of the makers and the manner of conducting their business has been “without the usual and ordinary incidents of a partnership,” and is made “to more effectually define and determine our individual interests in said business in the future, as between ourselves and in relation to all other persons, and to provide for the future uninterrupted prosecution of said business in which we are now engaged or may be hereafter associated.” The only change, if it can be said to be one, which is made on this point by the third writing is that it has a more specific reference to an existing partnership than have any of the others. It recites:
“That the partnership between the undersigned is with the express and distinct understanding and agreement that all of the property heretofore acquired by the undersigned has been acquired as the results of said partnership, and that said property now belongs to the said partnership, including all proceeds of said insurance business with the renewals to which the parties hereto may be entitled thereon.”
And it recites that each signer owns one fourth of the stock in the corporation known as Fleming Brothers, Incorporated. One part of the second writing makes specific reference to certain things that the parties shall own, by assigning and transferring “for the mutual benefit of the parties hereto” certain renewal commissions and “all commissions -earned or hereafter to be earned, and all bonuses allowed, payable or to become payable in any manner, whether payable to or standing in the name of Robert J. Fleming or any of the other parties to this agreement, * * * to be used, applied and disposed of in the manner only as herein agreed and provided for.”
The third contract makes the first reference to the following fact: “Said property now held and owned by the undersigned has been acquired by them with the understanding that it shall be disposed of as hereinafter set out;” that said property includes certain real estate; and that it is purposed to acquire more by means of what will be realized from the joint business.
There are provisions which, for convenience in further ref*93erence, I will set out in a group, denoting tbe writing in which the matter is found by a numeral in a bracket.
There is a declaration that the purpose is to fix and determine the interest of each and of all signers. (1)
It is distinctly understood and agreed by the parties hereto that they nor any of them have or can have any property rights or money interests in said business, other than that herein specified and defined. (1) • ,
“In consideration of the services of each of us rendered, or hereafter to be rendered in the business of life insurance, of the income to be .derived therefrom and of the mutual stipulations herein contained, each of the parties * * * has, and hereafter shall have, only such share of, and interest in the profits, earnings, renewals due or to become due under any and all contracts of insurance, or commissions thereon, to whomsoever nominally payable in the business of life insurance in which we are now or any of us shall hereafter be jointly engaged, as shall be actually received by each, or shall be paid upon the order of each with the consent of the others, from the general funds or income of said business.” (2)
‘ ‘ It being the intention of all the parties to this agreement, and they hereby declare that [neither] they, nor any of them have, or can have any property rights or money interest in said business other than that herein specified and defined, so long as any of them shall be associated together in the business of life insurance.” (2)
“And any sum or amount so paid shall fully represent the share and interest of each of the parties hereto at any time while any of the undersigned shall be associated together in said business or thereafter.” (2)
"What one who has deceased “has theretofore withdrawn from said partnership' shall constitute his sole and entire interest therein, and the sole and entire interest of his estate therein.” (3)
“It is further agreed that upon the death or withdrawal of any party hereto, all his interest in said business, and in the assets thereof, shall thereupon cease and determine; and at no time shall any accounting be made, or required * * * to any *94party hereto, or tbeir beirs, executors, administrators, survivors or representatives.” (2)
Upon the death or withdrawal o£ any party hereto, all his interest in said business shall thereupon cease and determine (without right to accounting- for the past.) This is repeated. (1-2)
The purpose is to bind survivors. (1)
‘ ‘ Upop, the death of either one of the undersigned, the property then owned by the said partnership, including all property standing in the names of the individual partners which embraces said stock in Fleming Brothers, Incorporated, shall be and become the property of the surviving brothers of the said partnership.” (3')
It is manifest that, as to vital points, each of the three writings, in effect, repeats. It is manifest that the three read together are the contract, and a clear-cut one. What the contract is, is perfectly stated in the decree appealed from, to wit:
“Considering the terms of the agreements, it is clear they were made with an intent to establish a joint ownership of the property acquired by the brothers, with a right of survivorship, upon the death of a brother, in the surviving brothers or brother. Such intent and purpose appear in every contract. * # * The intent of the parties to the instrument set out above is clearly to create an estate, with the incident of stirvivorship.”
There is no just right to construe; and at the one point where most of the construing is being done, the construction is an erroneous one. I refer to the part which I have set out. That is where it is said over and again, and by repetition in different ones of the writings, that the share and interest of one who dies is what he has drawn out while he lived. It is the part which the majority holds was not intended to be “literally” construed. It is the part of an unmistakably clear Contract which the majority amends by means of “construction.” The judicial amendment is this:
“This provision was intended to cover the immediate needs of each of the parties so associated and engaged in the business. Its purpose evidently was to forestall any extravagant tendencies on the part of any of the brothers, and to conserve the interests and profits of the business, to the end that the business *95might not suffer from extravagance, and might be continued uninterrupted. ’ ’
I repeat, the words written are too plain to permit construction. The parties took great pains to say, and said most clearly and repeatedly, that they did not intend what the majority declares they did intend. I beg to add that the “literal” construction is demanded, because it is the only construction which is in harmony with the entire purpose of the contract. I mean by this that, if it was the purpose to cut off inheritable interest, and to give the share of one who predeceased to the survivor, it must have been intended that the only interest of the one dying first should be what he had received in life. For if his interest is more than that, he will die seized of property, and it will not go to his survivor, but to next of kin or devisees or both. In defining the interest and share to be what was received in life, the parties but recognized that they had contracted to cut off inheritable interest, and to create a survivorship. I venture to say that is what they did contract to accomplish. There is no warrant for saying that the part defining share and interest is not to be construed literally. There is better reason for saying that that part of the writings is needless. Once agreed that neither party shall have an inheritable interest, once agreed that, when one dies, all that remains belongs to the survivors, and, without more, it has been agreed that the interest of each is measured by what he receives before he dies. So when it is all said and done, we have a clear contract that whoever died first left nothing to inherit, — nothing for dower or marital rights to attach to; that, at his death, the title became complete and perfect in his survivors, and so on, until the last survivor was reached. As said, the only question is whether this is a lawful and enforeible contract. There is no question about what the contract is.
II. It may be conceded, for the sake of argument, that joint tenancy does not apply to “commercial enterprises,” and that neither in this state or generally has it been recognized that such tenancies can be created as to “a commercial enterprise.” But does that quite meet the situation? These parties attempted nothing as to their commercial enterprise. What they did do was to arrange concerning the moneys that might be realized *96from such enterprise. Suck moneys are not a commercial enterprise, but are personal property. If the insurance business were closed out and abandoned, the contracts would still have for operation all they ever had to operate upon. True, the inducement in the contract was the belief that the contract would tend to avoid interruption of the business. But the joint tenancy was in the property the business had or would get; the purpose, that death of one, as in the course of nature it would occur once and again, should not disturb the business by means of the drawing out that must occur when there is no agreement to cut off inheritable interest, and no survivorship contract. The joint tenancy was created to avoid all interruption by withdrawal of the earnings and .property by deaths, until the one death of the last survivor. I do not overlook that the majority goes a step beyond, and holds that there can be no joint tenancy in property other than land. But in this I think it is clearly in error, and that no such rule prevails in this jurisdiction, or anywhere. In Baker v. Syfritt, 147 Iowa 49, we enforce a contract creating survivorship, both as to lands and personal property. In Stewart v. Todd, 190 Iowa 283, we enforce a survivorship agreement to cut off inheritable interest as to lands; also against some $18,000 worth of personal property.
III. The most definite ground assigned for the final conclusion is this: It is found that the relation between the parties was that of a partnership; next, that the provision creating sur-vivorship as to the partnership property “is an attempt to make a testamentary disposition óf the interest of each partner.” Finally, that “an attempt to create a survivorship among partners is an attempt to make a testamentary disposition of the dying partner’s property or his interest in the partnership property, in favor of the surviving partners, to take effect after his death.” As a ground for affirmance, this finding can have but one construction, to wit: that a partnership cannot enter into a contract of survivorship, because it is a partnership; and, passing that, if a partnership does make such a contract, it amounts to an unenforcible testamentary gift.
I am of opinion that no partnership was created, notwithstanding that the writings at times refer to the relationship as being that. While I agree that there may be a partnership if *97there be either express or implied agreement to share losses, it is my view that these writings have no such agreement to share losses. Bnt that aside, I submit that nothing in the law prevents the creating of a joint tenancy, with its incident of survivorship, on part of a partnership. So far as there is a rule on the subject, none are excluded from creating such a tenancy except “bodies politic or corporations.” 23 Cyc. 484, Point 3. And there is express authority, both here and elsewhere, that a partnership can do the thing, whatever its name, which cuts off inheritable interest and creates a survivorship. In McKinnon v. McKinnon, 56 Fed. 409, it is held that, where an uncle and nephew entered into articles of partnership to practice medicine, a provision in the partnership agreement that, “in the event of the death of the senior member of the firm, * * * all his property, personal and otherwise, which he held in partnership at the time of his death, shall go to the junior partner,” should be enforced. One point made in the case was that it was a testamentary disposition without the formalities of a will, and therefore incapable of enforcement in equity. Of necessity, the decision aforesaid overruled this point, and held, moreover, that the ruling could not be affected because the disposition was made in a partnership agreement as to partnership property. This is in harmony with our decisions that there is no unenforcible contract where a di& position agreed upon to take effect after death is not executed as a will should be, if the agreement rests on consideration. Surely, no one will challenge that the disposition made in the writings in this case has a consideration to support it. It seems to me that, in Stewart v. Todd, 190 Iowa 283, we have disposed of the entire point contrary to the present conclusion of the majority. In that ease, we sustained this contract: The parties “have agreed to start a general store under the firm name [consisting of the name of the wife] in which each party is to be an equal partner.” The husband “is to transact and do all the business, sign the firm name * * * to any and all papers necessary; and all the property accumulated, purchased and owned by either party to be in the firm name * * * Both parties to use any money they need, and at the death of either party the one living shall fulfill all contracts, pay all debts, and have all property left or owned by either party, or in the firm name.” We *98sustain the claim of the husband to survivorship under this contract, and included therein the real estate and, as well, a large amount of personal property.
The matter cannot be better stated than is done in Wood v. Logue, 167 Iowa 436, wherein we say:
“Laying aside the question as to what name or designation we shall apply to the transaction between the grantor and grantees, what good reason can be assigned in law or equity for the courts’ refusing to give it effect according to its clear intent?”
It is said that the title to property subject to ownership must vest in someone, — an individual, individuals, or a legal entity. To be sure, that is so; but what is it relevant to ? especially when it is also said 'that this property, when it came into existence, vested in these brothers, and that they became vested in these, either as joint tenants or by placing title in a copart-nership.
This involves a repetition of the idea that there is a difference as to a partnership.
IV. One of the matters as to which it is difficult to say whether it be merely argument, used as some sort of inducement, or a reason for affirming the decree below, is that part of the majority opinion which asserts, rightly enough, that, as a general proposition, estates in joint tenancy have, in modern times, ceased to be a favorite of the courts. Though true, how is this material, if such tenancies are still recognized in this jurisdiction, and if therein contracts to create them may be specifically enforced in equity ? If that be the state of the law in this jurisdiction, what purpose is served by those statements in the opinion which direct attention to the origin and character of joint tenancy; that in its origin it was feudal; that some states have denied the existence of it, except as to real property; that some states have abolished it altogether; and that some require strict proof thereof?
It may be conceded that, in early decisions, among which Hoffman v. Stigers, 28 Iowa 302, is one, that something was . said to the effect that the estate of joint tenancy is not favored by our law. But when we consider the statute on tenancies, and its construction in cases much later than the Hoffman case and like decisions, such language in the early cases can mean no more *99than that there is such disfavor of such estate as that the proof thereof must be clear. The statute itself compels that interpretation ; for it provides that conveyances to two or more in their own right create a tenancy in common, “unless a contrary intent is expressed.” This must mean merely that a tenancy in common is presumed, and that the presumption will not stand if a contrary intent is expressed. We have expressly held that, under this statute, the estate of joint tenancy is permitted to be created, and that the only disfavor it stands in is that its existence must be clearly proved. We so held in Wood v. Logue, 167 Iowa 436. In that case, we say further that the qualifying words “unless a contrary intent is expressed” leave a place in the law of the state for a joint tenancy, “with its characteristic incident of survivorship, if the intent of the parties to the instrument to create it is clearly indicated by the language expressed. ’ ’ Here, the agreement overwhelmingly demonstrates that the creation of a joint tenancy was intended. In the Logue case, we held that such a tenancy had been created, although the deed standing alone might convey the fee, and though the instrument was not drawn “with technical nicety nor the exactness of a learned, professional conveyancer,”' — and this, on language very far from expressing such intent as clearly as the writings before us. About as much as this can be rightly claimed, too, for Baker v. Syfritt, 147 Iowa 49, 62.
Nomenclature is, of course, quite immaterial.- We so held in Wood v. Logue, 167 Iowa 436. For we there held that the thing created, whatever its right name, was a joint tenancy, which cut off inheritable interest and created a survivorship. Will anyone venture to affirm that the writing in the Logue case more clearly or even as clearly evinced an intent to cut off the inheritable interest and to create a survivorship? So finding in the Logue case rests largely upon deduction and inference,- — ■ sound, but still but deduction and inference. In the case before us, the trial court that defeated the defendants also declared that purpose to cut off inheritance and to create a survivorship is clear beyond all doubt. And there is absolutely no room for either deduction or inference. For the provision in both the second and in the alleged controlling third writing, we find this:
“It being the intention of all the parties to this agreement, *100and. they hereby declare that they, nor any of them have, or can have any property rights or money interest in said business other than that herein specified and defined, so long as any of them shall be associated together in the business of life insurance.” (2)
All right and interest in renewals and bonuses, no matter in whose name, is to be transferred for the mutual benefit of the signers “to be used, applied and disposed of in the manner only” agreed on in the writing. (2)
“ It is further agreed that, upon the death or withdrawal of any party hereto, all his interest in said business, and in the assets thereof, shall thereupon cease and determine [without accounting for the past].” (2)
“Upon the death of either one of the undersigned, the property then owned by the said partnership, including all property standing in the names of the individual partners which embraces said stock in Fleming Brothers, Incorporated, shall be and become the property of the surviving brothers of the said partnership; and that what said decedent has theretofore withdrawn from said partnership shall constitute his sole and entire interest * * * of his estate therein.” (3)
Y. The majority says:
“We are satisfied wdth the decree of the district court, and its judgment is affirmed.”
But the holding of that court was not based on imperfect testamentary gift; and that court did not hold that the contracts did not clearly express an intention to create an interest that could not be inherited, and which was to go to the survivors. The decree below' is bottomed wholly on the conception that the contract is violative of sound public policy. I do not find that the majority places the affirmance upon that ground. And it seems to me it should not have been put on that ground by the trial court. The legislature is the supreme guardian of public policy, and whatsoever it approves is sound public policy. The statutes of this state in plain terms permit just what these defendants did. This court has so construed them. What the legislature authorizes to be done cannot be violative of sound public policy.
VI. It is true that, in a sense, each of the signers trans*101ferred things that might otherwise have been held by him severally to all of the signers. But that such assignment is permissible, and merely tends to accrete the fund concerning which survivorship is created, is one of the distinctions between a tenancy in common and a joint tenancy. While, as a fiction of law, each joint tenant holds all the property at all times, and that, ordinarily, there can be no recovery because the joint tenant uses all the property or its usufruct (23 Cyc. 490 B, 491 D) on the other hand, one tenant may maintain assumpsit against the other, to recover his share of the property or its proceeds. Stone v. Aldrich, 43 N. H. 52. It follows that the survivorship agreement is not affected by the assignment of anything which the joint tenant owns as an individual, and that, when he conveys his individual property under contract that a survivorship shall be created concerning it, no right of dower attaches, Mayburry v. Brien, 15 Peters (U. S.) 21. In such cases, he dies seized of nothing; and the majority concedes that the supreme test here is whether the husband of the plaintiff died seized of any of the things in which the plaintiff now claims an interest. As to personal property, the right of disposal is absolute. We have emphasized that in every possible way. See Langworthy v. Heeb, 46 Iowa 64; McDaniel v. Large, 55 Iowa 312; Mallory v. Russell, 71 Iowa 63; Paige v. Paige, 71 Iowa 318. We have held that the share of the widow in personal property cannot be enlarged by treating property parted with by the husband as an advancement to children as still part of the personal property of which the husband died seized. Burgoon v. Whitney, 121 Iowa 76. The power to dispose of the personalty is absolute (Lunning v. Lunning, [Iowa] 168 N. W. 140); and it would not ' seem to matter with what intent the husband parts with such property. Metler v. Metler’s Admr., 19 N. J. Eq. 457.
This has its bearing, too, on the question of public policy. The very fact that the. statutes restrain the alienation of real property, while permitting it absolutely as to personal property, shows that disposition of the latter by such an agreement as the one at bar is not against public policy. This answers, too, what the opinion is moved to say upon the fact that the wife is the weaker vessel, who maintains the home and rears the children, and is entitled to have provision made for her by law. Both the *102best and the poorest wife is entitled to such provision. But even the best wife is entitled to no more than such provision as the legislature has seen fit to make for her. Conceding everything to the quality of the plaintiff as a wife, that throws no light on whether this contract signed by her husband is or is not en-forcible. See dissent in Younker v. Susong, 173 Iowa 663, at 689, 690, 696, and dissent of Mr. Justice Marshall in Hall v. City of Madison, 128 Wis. 132 (107 N. W. 31, 37).
VII. Speaking by way of summary:
á. We held, in the Logue case, 167 Iowa 436, that it is unnecessary to give the arrangement a name; that nomenclature was immaterial. We said:
“Laying aside the question as to what name or designation we shall apply to the transaction between the grantor and grantees, what good reason can be assigned in law or equity for the court’s refusing to give it effect according to its clear intent?”
We said, also, that that intent was the granting of a unity of title with right of survivorship; and that the grantor had a right to prefer such an arrangement to “a tenancy in common, with the ordinary incidents to such an estate. ’ ’
b. In joint tenancy, neither of the successive survivors receives anything by inheritance from the deceased cotenant, and his title is derived solely and directly through the deed which created the tenancy. And the one who dies first does not die seized of any inheritable interest. And the last survivor becomes “the sole and unqualified owner.” Wood v. Logue, 167 Iowa 436, at 442. And such a contract is sanctioned by Iowa law. It is the essential distinction between an estate in common and a joint tenancy. And in the absence of statute, the survivors take the whole estate, free from any charges on the property made by the deceased cotenant. 23 Cyc. 488, 489.
c. Dower cannot attach to the estate of a joint tenant where, as in this case, his estate remains joint until his death; and this because his estate is not an estate of inheritance. It follows that decedent neither possessed in his lifetime nor died seized of any estate to which a dower interest in plaintiff could attach or inhere. He merely departed from the estate at his death. Code Section 3366; 14 Cyc. 891 to 902.
*103My understanding is that the majority approves this much. All that it fails to do is to make the approval effective.
d. A joint tenancy may be created “by any conveyance or act of purchase inter vivos which gives an estate to a plurality of persons without adding any restrictive, exclusive, or explanatory words.” 23 Cyc. 483 B.
e. It is not the law that joint tenancies can be created as to land only, nor that they cannot be created by a partnership as to partnership property, either personal or real. In McKinnon v. McKinnon, (C. C. A.) 56 Fed. 409, it is held that inheritable interest may be destroyed and a survivorship created in all property, “personal and otherwise,” held in partnership when the senior partner dies. And that is the holding of Stewart v. Todd.
f. It is not the law that a contract like the one at bar fails for being a testamentary gift; for, though not executed with the formalities of a will, it is saved because it rests on consideration. Stewart v. Todd.
g. Speaking to the rule generally, I find a pronouncement in 23 Cyc. 483 A that “a joint tenancy exists where a single estate in property, real or personal, is owned by two or more persons, other than husband and wife, under one instrument or act of the parties.”
h. There is no difficulty about construction here. The writings either clearly create the tenancy, or they do not. The whole test whether they do create one is to be solved by an inquiry as to whether four elements co-exist, to wit: (1) Unity of interest; (2) unity of title; (3) unity of time, except as modified by the statute against perpetuity; (4) unity of possession. That is to say, each owner must have one and the same interest, conveyed by the same act or instrument, to vest at one and the same time, and each must have the entire possession of every item of property held in joint tenancy, as well as the whole. 23 Cyc. 484, 485. It follows that, as to estates held hi joint tenancy, no right of dower will attach. Mayburry v. Brien, 15 Peters (U. S.) 21; Park on Dower 37; 1 Scribner on Dower (2d Ed.) 269; 4 Kent’s Commentaries 37.