In Re Estate of Olson

Hunter, J.

This is an appeal from a superior court judgment declaring a certain promissory note to be property held in joint tenancy with right of survivorship rather than community property. The precise issue presented concerns the interpretation and application of RCW 64.28.

Victor Olson and Georgie Ethel Olson were married on August 12,1926. In 1967 a loan of $55,000 consisting of funds of the marital community was made to Dorothy W. Linn. A promissory note dated June 5, 1967, and an accompanying real estate mortgage evidenced this obligation. The note is *856payable to the order of “Victor Olson or Ethel P. Olson as joint tenants with rights of survivorship” and the real estate mortgage securing it names the Olsons as mortgagees in the same language.

Victor Olson died on November 4, 1973. At the time of his death the balance remaining on the loan was $31,528.11. In his last will and testament executed on February 17, 1972, Victor Olson in paragraph four bequeathed to Dorothy W. Linn the remaining balance on the loan.1

Georgie Ethel Olson was aware of the loan and after the death of her husband, the note and mortgage were taken from the safety deposit box in which they had been placed following their execution. At this time, her attorney in connection with the administration of her husband’s estate called her attention to the form and language of the note. Georgie Ethel Olson then informed Dorothy W. Linn on January 22, 1974, that she claimed the full balance due on the note by virtue of her survivorship.

Georgie Ethel Olson died on February 15, 1974. Respondent F. Morris Lamborn is the executor of her estate. On June 21, 1974, the executors of Victor Olson’s estate, W. J. Renn, Al T. Olson, and E. Robert Fristoe, filed a petition in the probate proceedings of that estate for a declaratory ruling that the obligation evidenced by the promissory note is an asset of the Victor Olson estate. Following a trial based on stipulated facts, the trial court concluded that the note and mortgage were held in joint tenancy with right of survivorship. The court therefore found that upon the death of Victor Olson, the obligation represented by the note became the sole and separate property of Georgie Ethel Olson and was not subject to disposition under the fourth paragraph of Victor Olson’s will. The executors of Victor Olson’s estate appeal from this judgment.

*857We reverse the trial court because we agree with appellants’ argument that the form of the note and mortgage is not sufficient to meet the statutory requirements for a joint tenancy contained in RCW 64.28. In light of this disposition of the case, we have not considered the other arguments raised by appellants.

Until the passage of Initiative 208 in 1960, the form of joint ownership of property known as joint tenancy with right of survivorship was not recognized in this state.2 In that year the people voted to end the prohibition against joint ownership with right of survivorship and to establish the “form of co-ownership of property, real and personal, known as joint tenancy [which] shall have the incidents of survivorship and severability as at common law.” Laws of 1961, ch. 2, § 1, p. 26. This legislation further provided as follows:

Joint tenancy may be created by written agreement, written transfer, deed, will or other instrument of conveyance, when expressly declared therein to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants: . . .

Laws of 1961, ch. 2, § 1, p. 26. The provisions of Initiative 208 were codified as RCW 64.28.010-.030.

In 1963 the legislature amended RCW 64.28.010 to státé more explicitly the requirements for the creation of a joint tenancy. RCW 64.28.010 was changed to read as follows:

Joint tenancy shall be created only by written instrument, which instrument shall expressly declare the interest created to be a joint tenancy. It may be created by a single agreement, transfer, deed, will, or other *858instrument of conveyance, or by agreement, transfer, deed or other instrument from a sole owner to himself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from husband and wife, when holding title as community property or otherwise, to themselves or to themselves and others, or to one of them and to another or others, or when granted or devised to executors or trustees as joint tenants . . .

Laws of 1963, 1st Ex. Sess., ch. 16, § 1, p. 1387.

In interpreting statutory language, it is our goal to give effect to legislative intent whether the' legislation is enacted by the legislature or directly by the people. Compare Hartman v. State Game Comm’n, 85 Wn.2d 176, 179, 532 P.2d 614 (1975), and Anderson v. O’Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974), with Department of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). The history behind the statutory language quoted above shows that the long disfavored joint tenancy form of joint ownership was to be permitted. But the language also demonstrates that joint tenancies are to be given effect only within specific bounds. The language unambiguously requires a joint tenancy to be created in a writing clearly and expressly stating that the interest created thereby is a joint tenancy. In addition, the language added by the legislature’s amendment suggests that the interest will usually be created by the action of a “sole owner,” “tenants in common or joint tenants,” or “husband and wife.” In general, therefore, the requirements of the statute for the creation of a joint tenancy with right of survivorship will be met if there is an express written document indicating that the owner or owners of the property involved intend to create a joint tenancy. See also RCW 64.28.020.

The promissory note and real estate mortgage in the present case do not meet these requirements and therefore they were insufficient to create a joint tenancy. The promissory note3 was executed by Dorothy W. Linn, a third party, *859and hers is the only signature affixed thereon. There is no indication, other than her promise “to pay to the order of Victor Olson or Ethel P. Olson as joint tenants with rights of survivorship,” that the marital community of Victor and Georgie Ethel Olson intended the community property represented by the promissory note to be held in joint tenancy. Nothing in the note or the mortgage expressly declares the interest created to be a joint tenancy. A joint tenancy cannot be created within the purview of the statute in the absence of at least some clear indication by the marital community that the property subject to joint tenancy is intended by them to be held as such. See In re Estate of Patton, 6 Wn. App. 464, 481, 494 P.2d 238 (1972); Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729, 794, 817 (1974). The creation of a joint tenancy could not be accomplished by Dorothy W. Linn’s unilateral act of executing the promissory note and real estate mortgage. In substance, there was no writing by the marital *860community expressly declaring the interest created to be a joint tenancy. Upon the death of Victor Olson, the promissory note remained a community asset of Victor and Georgie Ethel Olson since the requirements of ROW 64.28.010 had not been met.

The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

Stafford, C.J., and Rosellini, Hamilton, Utter, Brachtenbach, and Horowitz, JJ., concur.

Paragraph four of Victor Olson’s will provided:

“Fourth: I hereby will and bequeath to my friend, Dorothy W. Lind [sic] who presently resides in Olympia, Washington, the remaining balance, if any, owing by her to me at the time of my death, which is evidenced by a Promissory Note secured by a real estate mortgage covering a duplex in which I am presently residing.”

Even before Washington became a state, the legislature had eliminated the right of survivorship from the lavs' pertaining to joint ownership of property.

“That 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 transmissable 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, provided, that community property shall not be affected by this act.” Laws of 1885, § 1, p. 165; as amended, Laws of 1953, ch. 270, §§ 1, 2, pp. 717-18.

The following is the complete text of the promissory note, which is *859entitled “Installment Note” and dated June 5, 1967, at Olympia, Washington:

“For Value Received, I promise to pay to the order of Victor Olson or Ethel P. Olson as joint tenants with rights of survivorship, the sum of Fifty-five Thousand ($55,000.00) Dollars, with interest thereon at the rate of Seven (7) percent per annum from date hereof, payable as follows:

“The sum of Four Hundred Twenty-five ($425.00) Dollars on the 5th day of July, 1967, and the same sum on the same day of each and every month thereafter until the entire amount of principal and interest is fully paid, payments to be credited first to interest and the balance to principal.

“There is no right of acceleration of payments on this note in order to reduce the amount of interest. The maker shall have the right to pay off said note at any time by paying the total amount of principal and the total amount of interest computed to the end of the term of this note.

“If any of said installments are not so paid, the whole sum of both principal and interest shall become due and payable at once without further notice at the option of the Holders or Holder hereof.

“Each maker of this note executes the same as a Principal and not as a Surety. In the event suit shall be brought to collect any of the principal or interest of this note I promise to pay reasonable attorneys fee and costs of such action.

“/s/ Dorothy W. Linn”