(dissenting)—The simplest declarative sentence may be so judicially interpreted that it remains neither simple nor declarative. To subject a straightforward and clearly stated piece of legislation to the labyrinthine processes of judicial analysis will quite likely create an unnecessary risk of misconstruction and probably thwart the legislative intent. So clearly stated are the initiative measure and the legislative enactment establishing joint tenancy that neither, I think, requires judicial construction. All that needs be done in this case is to apply the statute to the facts and thereupon determine the parties’ rights in the premises. If that is done here, the court should affirm, and I therefore dissent.
As the court points out, its goal is “to give effect to legislative intent whether the legislation is enacted by the legislature or directly by the people.” That goal, I think, will be more readily attained if the statute is not exposed to the risks of further judicial interpretation.
The statute (RCW 64.28.010) prescribes neither a form nor a formula. Its terms, however, are clear and explicit and should be read to include a transfer or conveyance of property or an interest therein from a sole owner by means of a note and mortgage to, and received by, a community of husband and wife as a joint tenancy with attendant survivorship where the interest created by that writing is, as *861prescribed by the statute, expressly declared to be a joint tenancy. RCW 64.28.010. And a transfer or conveyance of property in writing to two named individuals “as joint tenants with rights of survivorship,” must be regarded as a literal declaration that the interest created shall be a joint tenancy and thus fulfilling the requirements of the statute.
The court’s opinion delineates the history of joint tenancy in this state and shows how it culminated in the two recent enactments under consideration. In pointing out, however, ostensible differences between the initiative measure and the legislature’s enactment, the court overlooks the striking similarities between the two—similarities which the legislature obviously intended to preserve.
Initiative 208, as the court says, enacted by the people in 1960, Laws of 1961, ch. 2, § 1, p. 26, RCW 64.28.010-.030, reestablished in this jurisdiction the common-law co-ownership in property known as joint tenancy in the following words:
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 . . .
(Italics mine.) In comparing the initiative with the statute, one should note the use of directory words: “may be created by written agreement, written transfer” or other instrument, and the absence of a mandatory phrase. This directory language gives rise to the possibility which the legislature sought to avoid that a joint tenancy might, under the initiative, be claimed to have come into existence by operation of law, or by an estoppel, or partly in writing and partly orally, or by a combination of facts and circumstances consummated without a writing which expressly declares the interest transferred to be a joint tenancy. As to prescribing a writing, legislative intent in the initiative may be partly ascertained from the conspicuous absence of the mandatory words so universally available in a lawyer’s lexicon as shall, or must he, or only.
*862The legislature, however, left no doubt that a joint tenancy cannot be created except in writing. This is shown in the change from the directory language of the initiative to the mandatory language in the amendatory legislation enacted by the legislature, Laws of 1963, 1st Ex. Sess., ch. 16, § 1, p. 1387, RCW 64.28.010, reading:
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 instrument 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 . . .
(Italics mine.)
Thus, aside from the fact that the legislative enactment, RCW 64.28.010, spells out in detail what the initiative stated in the broadest possible terms, the differences between the two are seen to be quite superficial with one exception, i.e., where the initiative says a joint tenancy may be created by written agreement, written transfer or other writing, the later statute enacted by the legislature (RCW 64.28.010) specifies that it can be created only by written instrument. The legislature, in this fashion, as it did over a century ago in the statute of wills, categorically sought to eliminate all hazards and uncertainties of a joint tenancy being successfully claimed to exist in the absence of a writing to prove it. The statute (RCW 64.28.010) leaving no room for interpretation makes certain what the initiative left uncertain; it eliminates the possibility of a joint tenancy coming into existence or from being successfully claimed to have come into existence either by operation of law, or the conduct of the parties short of a writing, or by an estoppel or otherwise by facts and circumstances, in the absence of a written transfer, conveyance, deed or other writing. The sine qua *863non under the statute, therefore, is an express written declaration made by one or more persons having the legal power to make such a valid and enforceable writing.
Here there was not one but two writings, a note and a mortgage, each in identical language and a part of the same transfer of property. By accepting a transfer of property through these two written instruments, each of which expressly declared the interests transferred to be vested in Victor Olson or Ethel P. Olson as joint tenants with rights of survivorship, the Olsons, it should be held, acquired the property in joint tenancy. Where it is the clear and express intent of the transferor and the transferees to establish in writing a specific transfer of property in joint tenancy, what other possible construction can be placed on the writing and the transaction short of abrogating the statute? Accordingly, I think the parties to the instant transaction fully complied with the requirements of the statute (ROW 64.28.010) by a transfer of property through written instruments which expressly declared the interests created to be a joint tenancy.
As earlier noted, the legislature did not, as it frequently does, supply a model form or formula nor make mandatory any particular language or phraseology. All that is required to establish a joint tenancy under the statute is that the interest created is expressly declared to be a joint tenancy. To hold, therefore, that the words of the note and mortgage “as joint tenants with rights of survivorship” do not expressly declare the interest created to be a joint tenancy, subjects the statute to an inordinately literal interpretation, puts form above substance, and I fear defeats the purpose and intent of the legislature in enacting it.
Since the enactment of the joint tenancy initiative and the statute, one may reasonably assume that many thousands of pieces of property throughout the state have been taken into ownership in joint tenancy in much the same way that Victor and Ethel Olson acquired possession of Dorothy W; Linn’s note and mortgage and the property interests transferred by these writings. The language employed in many of such transactions, one may be sure, will be the same or *864similar to that utilized here, i.e., naming the transferees or grantees and transferring or conveying to them as joint tenants with rights of survivorship. The court now, I think needlessly jeopardizes these innumerable joint tenancies.
I would, therefore, affirm.
Dolliver, J., concurs with Hale, J. Pro Tern.
Justice Frank Hale is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. 4, § 2A (amendment 38).