(dissenting in part)—The question presented in this case is whether co-owners of real property (presumptively as tenants in common) can, by means of an escrow containing deeds from one to another, and a will of the grantee devising the property to the grantor, establish thereby a right of survivorship to the exclusion of heirs at law of the grantor, when the delivery of the papers in escrow (the deeds and the will) was dependent upon which of the parties died first. There is the further consideration that the grantor and grantee had agreed orally that the survivor should take all. The majority opinion holds that this agreement made the parties owners of an estate in joint tenancy.
I concur with that portion of the majority opinion determining that the Gold Bar property belongs to respondent upon the theory that Miss Reck intended a gift to respondent of her interest therein, reserving to herself a life estate as to her one-half interest.
I also agree with the conclusion reached in the majority opinion determining that the ocean property was owned by Miss Reck and Miss Melville (respondent) as tenants in common and that, as. to this property, “the survivorship agreement was merely an abortive attempt to pass property at death.”
I dissent from that portion of the majority opinion which concludes that:
“Respondent’s present estate in severalty therein [the Seattle property] arises from the survivorship agreement and the joint tenancy created thereby, and not by reason of the deed executed by Miss Reck, which is merely evidence, of the survivorship agreement.” (Italics mine.)
To my mind, the fallacy of this conclusion is based upon the failure to distinguish between (a) an estate in joint tenancy (of which survivorship is one of the characteristics) , and (b) an agreement between co-owners of property *403that the survivor shall take all. See Teacher v. Kijurina, 365 Pa. 480, 488, 76 A. (2d) 197 (1950). The existence of such an agreement does not, ipso facto, make their ownership in the subject matter of their agreement an estate in joint tenancy. The effectiveness and validity of such an agreement must he determined hy the manner of its creation and the method of its execution.
Conceding for the purpose of argument that an estate in joint tenancy in real property may be created in this state despite RCW 11.04.070, under certain circumstances and hy proper means (a conclusion reached by the majority but upon which I express no opinion), I cannot find from the record in this case that such an estate was created in either the Seattle or the ocean properties.
The record is short and the facts are meager. It will be helpful to point out several things which do not appear in the record before considering what does appear.
(a) It does not appear whether the oral agreement that their jointly owned property should be the property of the survivor was made before, contemporaneous with, or subsequent to the acquisition of the Seattle and the ocean properties.
(b) It does not appear definitely when Miss Reck and Miss Melville acquired the Seattle and ocean properties, except as hereafter noted.
(c) The deeds are not in evidence by which title to these properties was acquired. It is conceded by the parties that the names of Miss Reck and Miss Melville appeared as grantees in the deed of the ocean property.
I turn now to what the record does show of the transaction between the parties.
(a) The Seattle property was purchased on contract prior to April 14, 1937. They completed their payments on the contract in January, 1945. On March 31, 1945, the date of Miss Reek’s death, the title to the Seattle property stood in the names of Miss Reck and Miss Melville. It does not appear that the deed vesting title named both of them as *404grantees, but, for the purpose of this dissent, I assume that it did. The litigants so considered it.
(b) The Seattle property was purchased upon contract before the ocean property.
(c) An interest had been acquired in both the Seattle and ocean properties prior to April 14, 1937, the date they consulted counsel to have the quitclaim deeds and will prepared and executed.
(d) The agreement between Miss Melville and Miss Reck is best expressed in the testimony of- Miss Melville when called by the plaintiff as an adverse witness. She testified as follows:
“Q. What was that agreement between the two of you? A. Well, we decided that we should be planning for that thing. We were having a long trip in 1937 and we decided that we had better have some arrangements in case something happened to one or the other of us, and so we went down to Mr. Kinney, Mr. Tom Kinney, in the spring. We chose him because he was a young attorney, younger a good deal than we were and we thought he would be alive after we were gone, and we—I made a will and willed all the real estate I owned to Myrtle J. Reck and she made quitclaim deeds for the two pieces of property that we owned at that time to me, and those were to be kept by Mr. Kinney until— . . . Q. Do I understand you that the agreement was that the survivor would take all the property? A. Yes. We earned it together and we thought we had a right to. Q. Then you went to Mr. Kinney, as you stated, to effectuate that agreement? A. Yes. Q. What did you do to effectuate this oral agreement? A. What do you mean? I made a will, is that what you mean? Q. Yes, what did you and Miss Reck do? A. I willed all of the real estate property of which we were possessed at that time, which in case of my death would go to Myrtle J. Reck. . . . Q. And what did Miss Reck do to consummate her half of the agreement? A. She signed deeds for the property that we had at that time, owned together, in my favor. Q. What properties did she sign the deeds for? A. The ocean property, the acre at Grays Harbor at Ocean city, and the home property at 8203 8th Northeast, Seattle. Q. I see. Was there any other agreement that the two of you signed at that time? A. No, not that I recall. . . .
*405“Q. Now, what was your joint agreement, what did you two agree with reference to the situation had you died first? Would she be able to— A. My will gave everything in real estate to her. Q. And she would take the—would she take the will and the deeds back at that time? A. That was the understanding. Q. That was the understanding? A. Yes.
“Q. And you felt that you accomplished your design of being able to each of you take the half of the other in case of the death of the other? A. (Witness nods her head.) Q. There was absolutely no change in your ownership of the property? A. No.” (Italics mine.)
The attorney who drew and with whom the two deeds and will were left in escrow testified:
“Q. What did they tell you they wanted to accomplish? A. They wanted to accomplish an arrangement whereby all of their assets would go to the survivor, since they had commingled their funds, and the survivor would arrange for a disposition of the property . . . Q. Mr. Kinney, at the time these instruments were left with you what instructions were given to you? A. Instructions were given to me substantially in this form, that I was to keep the three documents together and in the event of the prior decease of Miss Reck I was to give the documents to Miss Melville, and in the event of the prior decease of Miss Melville I was to give all of the documents to Miss Reck.” (Italics mine.)
It appears from the testimony that Miss Reck and Miss Melville did not have a contract—and did not consider that they had an effective agreement of survivorship—prior to April 14, 1937, the day they went to Mr. Kinney, the lawyer. Of course, they had an understanding of what they wished to have accomplished; and the problem of this case is to determine whether that which they did on April 14, 1937, legally accomplished their agreed purpose. The majority opinion approaches the problem by assuming that they had an oral contract of survivorship prior to April 14, 1937, and then tests to determine whether such a contract is valid in this state. The facts do not support the major premise of the majority opinion and it thus becomes unnecessary, to my mind, to explore the minor premise and the conclusion of the syllogism upon which the majority opinion is based.
*406The true estate in joint tenancy in real property (as distinguished from an agreement of survivorship between co-owners) presents some of the most artificial rules and subtle distinctions of the common law. A distinguishing characteristic is that it arises by way of grant or devise and never by way of descent or other acts of law. It would unduly extend this dissent to analyze in detail each of the cases cited in the majority opinion directed to the proposition that, under the facts of each case, an estate in joint tenancy was established. In view of the facts of the instant case, it is sufficient for my purpose to state that in all such cases (except two) the right of survivorship was either established in the deed of conveyance or by devise. The two exceptions are In re Leach’s Estate, 282 Pa. 545, 128 Atl. 497 (1925), and Ashbaugh v. Ashbaugh, 90 Pittsburgh Legal Jour. 351 (1942).
Both cases are distinguishable. In the former, the state of Pennsylvania levied an inheritance tax of fifty dollars upon one half the value of a historical library collected over many years by a brother and sister. The survivor, the sister, argued that no tax could be levied for she and her brother were joint tenants therein with the right of survivorship. The court said:
“It therefore becomes necessary to determine when the half interest in the library was acquired by the sister, for if the right was acquired by reason of the original agreement in 1899, then the succession cannot be under the brother’s will and no tax is assessable. . . . The sister’s rights then accrued, and the one-half did not pass to her by succession from him, but by reason of her contract of purchase.” (Italics mine.)
The facts of the Ashbaugh case (1942), supra, are set forth in the majority opinion. It was a proceeding in the court of common pleas of Allegheny county. To date, it has not been cited as authority by any court, even in Pennsylvania. It was decided upon demurrer and simply held that:
“All of the averments in the bill of equity, at this stage of the proceeding, must be construed in favor of the plaintiff ...” (Italics mine.)
*407In the latest case upon the subject in Pennsylvania, Teacher v. Kijurina, supra, the supreme court held that:
“The intent of the grantees must be gleaned solely from its [the conveyance] language ... In absence of fraud, accident or mistake parol evidence is inadmissible to vary or limit the scope of a deed’s express covenants and the nature and quantity of the interest conveyed must be ascertained by the instrument itself and cannot be orally shown.” (p. 486.)
To establish a rule of property as drastic as that proposed by the majority opinion, upon facts as deficient as those of the instant case, would have a thunderous effect. Assuming that the deed to the Seattle property stood in the names of Miss Reck and Miss Melville, and assuming nothing more, the interest of Miss Reck would, upon her death, descend to her heirs by operation of RCW 11.04.070. The majority opinion interprets the facts in such a way as to append to this deed an oral agreement setting up cross-contingent remainders in real property. While a tenancy in common to two for life with cross-contingent remainders to the survivor in fee might possibly be created by deed (see Erickson v. Erickson, 167 Ore. 1, 115 P. (2d) 172), such remainders cannot be created orally. The determination of the exact nature of the situation assumed by the majority opinion may well await the trial of a case wherein the facts present that question.
I have little to add to the excellent discussion in the majority opinion concluding that the trial court erred in drawing its conclusion of law that title to the Seattle and ocean properties vested in Miss Melville, subject to a life estate in Miss Reck as to her one-half interest, at the time the deeds were left with the attorney.
There was no present intention that title should pass at the time the escrow was established, and there was no delivery of the deeds during the lifetime of the grantor. Where a deed is handed to a third person with instructions to keep it until the death of either the grantor or grantee, and then to deliver it to the survivor, the delivery is not *408effectual for it is conditional upon the grantee (Miss Melville) surviving the grantor (Miss Reck).
Both the Seattle and the ocean properties are in the same position. The escrow as to both “was merely an abortive attempt to pass property at death.”
The decree should be reversed and the case remanded with directions to the trial court to quiet title in appellant in an undivided one-fourth interest in the Seattle and ocean properties.
Schwellenbach, C. J., and Olson, J., concur with Weaver, J.
Order Denying Petitions for Rehearing.
The above entitled cause coming before the court upon the petitions for rehearing filed by appellant and amicus curiae, and it appearing to the court that among other reasons assigned by the petitioners for a rehearing of the case is that the statute of frauds was violated by the agreement made by the respondent and the decedent, and it further appearing that the issue of the statute of frauds was not theretofore raised and therefore could not be considered or determined on this appeal, and the court having considered such petitions,
It Is Ordered, That the petitions of appellant and amicus curiae for a rehearing of this cause be and the same are hereby denied.
Dated this 25th day of February, 1953.
Thomas E. Grady,
Chief Justice.