(dissenting). The argument advanced by my Brother Bird to sustain the result he reaches in this case is the same as was advanced by him in Ludwig v. Bruner, 203 Mich. 556, i. e., that parties by contract may create an estate of joint tenancy in personal property even though such an estate is unknown to our law. The Ludwig Case was submitted to this court January 11, 1918, and was not decided until December 27th of that year. It was under consideration by this court for nearly a year and was the subject of many conferences. By a vote of 5 to 3 it was finally held (I quote from the syllabus):
*70“Joint tenancy in personal property with its right of survivorship does not exist in this State.”
And it was definitely decided that such had been the law from the time that Wait v. Bovee, 35 Mich. 425, was handed down, that it was a rule of property and should' not be deviated from. No member of this court had ever questioned this rule until Hart v. Hart, 201 Mich 207. It had been, and by a majority of this court was declared in the Ludwig Case to be, the settled “bench” law of this State.
If parties by contract undertake to create an estate tail it fails because it is in collision with the statute law of the State. If parties by contract attempt to create three or more successive life estates, such contract must fail because it is in conflict with the statute law of the State. If parties by contract undertake to create a joint estate in personal property it likewise must fail because it is in collision and in conflict with the settled “bench” law of the State. This was definitely settled in the Ludwig Case as it had been in all the cases which preceded it. A change in the personnel of this court does not, or at least should not, change the settled “bench” law of the State. .
In the instant case two notes each secured by mortgage are involved. The Rudinger note is for $2,700 and is payable to “George W. Bush and Sarah Bush, or order.” The note is the evidence of the debt, is the contract between the parties, and the mortgage which contains the language quoted by my brother is but the security for the payment of the note, for the performance of the contract. Decision of the case so far as the Rudinger note is concerned might well be made to rest, upon the ground that by the contract no estate in joint tenancy with the right of survivor-ship was attempted to be or was created, that an estate in common only existed. The other note does not *71appear in the record but the mortgage is for $400 and is given by Frank Daniels and Ella Daniels to George W. Bush alone. Mrs. Bush collected on the Daniels note and mortgage $152. I do not understand the reason Which prompted the trial judge in denying relief as to the Daniels note and mortgage. Decision on the Daniels, note and mortgage might well be made to rest and should be made to rest on the ground that Mr. Bush’s estate is entitled to an accounting from Mrs. Bush’s estate for the money collected by her from Daniels after the death of her husband.
But my reason for dissent is based upon broader grounds than those just stated. It is based upon the ground that joint tenancy in personal property with the right of survivorship does not exist in this jurisdiction no matter what the holding may be elsewhere. That the right of survivorship is an incident of joint tenancy is well known to the profession. The words “with sole right to the survivor”, in the Rudinger mortgage added nothing to the words “as joint tenants.” In the case of State Bank of Croswell v. Johnson, 151 Mich. 538, the language was “payable to Thomas Parker and Alice Parker or the survivor of them.’,’ We there held that the transaction partook of the nature of a gift inter vivos and of a gift causa mortis, and decision was there based on.these grounds. In order that the profession might not misunderstand the ground of decision we said:
“Our decisions that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.”
And Wait v. Bovee, supra, was cited and quoted from. We there clearly indicated that the language used “or to the survivor of them” did not pass title to the survivor and that she must depend upon her rights as donee or fail.
*72I quite fully expressed my views in Hart v. Hart, supra, and in Ludwig v. Bruner, supra, and have no desire to again review the authorities. The rule is a rule of property and the doctrine of stare decisis should obtain. As was said in the Ludwig Case:
“This court should not reverse a rule of property which has been unquestioned for over 40 years and under which rights of creditors of decedents have been protected and no small amount of revenue by way of inheritance taxes has been contributed to the support of the State government.”
In my judgment the decree should be reversed and one here entered in'conformity with the prayer of the bill. Plaintiff should recover costs.
Steere, C. J., and Stone, J., concurred with Fellows, J.