(dissenting).
The journey of joint tenancy of personal property remains an uncharted course in Arizona law. A comparison of McNabb v. Fisher, 38 Ariz. 288, 299 P. 679 (1931); Phoenix Title & Trust Co. v. King, 58 Ariz. 477, 121 P.2d 429 (1942); and Brown v. Navarre, 64 Ariz. 262, 169 P.2d 85 (1946), illustrates the problems encountered in dealing with joint tenancy, and it appears that the law is anything but “well settled” on the subject. In a helpful annotation in 43 A.L.R.3d 971, some of the various rules developed by the courts from other jurisdictions are set forth. For the cases on the contract theory see 33 A.L.R. 2d 569. Interestingly enough, the jurisdiction which the majority has seen fit to quote at length, that is, Illinois, has held that in joint tenancy bank accounts with close relatives as the joint tenants there is a presumption of gift, and the burden is upon the party questioning the gift to establish that no gift was intended by clear and convincing proof. Frey v. Wubbena, 26 Ill.2d 62, 185 N.E.2d 850 (1962); Graves v. Graves, 42 Ill.App.2d 438, 192 N.E.2d 616 (1963). This position certainly seems to make good sense and logic that at least by reason of the relationship of the parties the establishment of a joint account indicates a gift.
In my view, the above rule should also apply to husband and wife as joint tenants. The author of the opinion of the Court of Appeals in this case, after analyzing the various theories on gift and joint tenancy, stated:
“Courts have had no reluctance in holding that when a husband causes his sole and separate property to be placed in joint tenancy with his wife, that the husband is presumed to have made a gift to his wife of an undivided one-half interest in such property. Collins v. Collins, 46 Ariz. 485, 52 P.2d 1169 (1935); Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945). Likewise, we should show no reluctance in holding that when a husband places his sole and separate funds in a joint bank account with his wife, he is presumed to have made a gift to his wife of an undivided one-half interest in such funds.” O’Hair v. O’Hair, 16 Ariz.App. 565 at 570-571, 494 P.2d 765 at 770 (1972).
The foregoing position would be in harmony with our cases concerning real property and joint tenancy. The close relationship between husband and wife makes such a construction of their intentions more natural than the position by the majority which seems to treat them as strangers dealing at arm’s length.
The position of the majority must be considered unsound from another and far more vital aspect. The Arizona Legislature has made special provisions for joint accounts in a savings and loan association:
Ҥ 6-431. Joint account; trust account
“A. If two or more persons opening or holding an account shall execute a written agreement with the association providing that the account shall be payable to any or the survivor of them, the account, and any balance thereof which exists from time to time, shall be held by them as joint owners with the right of survivorship and, unless otherwise agreed, any payment by the association to any of such persons shall be a com*243píete discharge of the association’s obligation as to the amount so paid.”
The facts in this case clearly show that the principal sum in dispute by the parties involves the funds placed in the Western Savings and Loan Association. The evidence shows that the application by the parties which bears both their signatures contained the following language:
“Such account together with all deposits and accumulations therein shall be held by Association for applicants as joint tenants with right of survivorship and not as tenants in common nor community property.”
The reference in the majority opinion to A.R.S. § 6-267 is misplaced since this section deals with bank deposits — not deposits in savings and.loan associations. It is true that the bank deposit section is a so-called “bank protection” section, but it must be conceded that its relevance is to questions concerning deposits in a bank. The legislature in 1960 saw fit to provide a separate savings .and loan code, and the sections of that code are controlling on questions involving the nature and effect of accounts in such associations.
The effect of statutes similar to A.R.S. § 6-431 has not been the subject of uniform interpretation, usually due to the fact that a number of jurisdictions have an additional statute which provides for a conclusive presumption that an account in joint ownership with right of survivorship vests title to the deposits in the survivor. See 43 A. L.R.3d 1013, § 10. In jurisdictions without a statute creating the conclusive presumption, but with a statute similar to A.R.S. § 6-431, the courts have generally held that accounts established under such a statute create a presumption of joint ownership in the named parties, but the presumption is rebuttable. Green’s Estate v. Meeker, 46 Wash.2d 637, 283 P.2d 989 (1955). See also: Frey v. Wubbena, supra; Jacques v. Jacques, 352 Mich. 127, 89 N.W.2d 451 (1958).
The courts interpreting sections similar to A.R.S. § 6-431 appear to be uniform in holding that the statute itself creates a method of holding personal property in joint tenancy, and it is not necessary that the common law elements of gift be established. The statute itself establishes a method of creating a form of ownership with right of survivorship in intangible property. It is the duty of the courts to acknowledge the statutory scheme creating such a method of holding property and give it full effect.
In the instant case legal title to the funds deposited in the Western Savings and Loan Association was vested in both husband and wife. A joint tenancy with right of survivorship was created. In order to divest the wife of her interest in such property there must be a showing of fraud, duress or mistake, or there must be established a showing that there was no intention for the beneficial interest to follow the legal title. Frey v. Wubbena, supra. The burden of establishing such a showing is upon the husband, in this case, and the showing must be made by clear and convincing evidence. In my judgment such a showing was not made in the case, and, other than the self-serving declarations of the husband, there was no evidence to support the position that he did not intend for his wife of over twenty years to have a joint interest in the savings account.
Finally the majority, without citing any Arizona authority, hold that while an appeal is pending the trial court may nevertheless hear and modify the terms of the decree.
Such a position is contrary to what at one time I thought was the settled law in Arizona. Whitfield Transportation, Inc. v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956); Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238 (1941); Allison v. Ovens, 102 Ariz. 520, 433 P.2d 968 (1967), cert. denied 390 U.S. 988, 88 S.Ct. 1184, 19 L.Ed.2d 1292 (1968).
The majority feel that A.R.S. § 25-321 which gives the superior court authority to change or alter the final judgment, is also authority for the trial court to act even while the matter is on appeal. No Arizona *244authority is cited for this position, and this Court’s holding in Allison v. Ovens, supra, is contrary to such position.
The provisions of A.R.S. § 25-321 are not in conflict with our previous holdings, and especially in this case where there is no final judgment since the matter has not been resolved on appeal. Secondly an appeal, according to our previous holdings, removes the entire case from the superior court and there is nothing pending in that court upon which it can act.
The experience over the years has made it abundantly clear that the holding in Allison v. Ovens, supra, and prior cases is not only good law but good sense. While a matter is on appeal, particularly in a divorce action, the battles, disputes and bitterness can continue unended in the trial court during the pendency of the appeal. Errors of law made by the trial court can be compounded. Until the appeal is resolved the parties remain undecided in their rights. Decisions by the appellate court may so affect the case that so-called modifications during the course of the appeal may be made nullities.
Ample protection is afforded the parties by permitting application to the appellate court for a limited return of jurisdiction to the trial court. The appellate court can provide adequate protection to the needs of the parties as they occur, and upon a proper showing can permit the trial court to hear applications for modifications of such matters as custody, child support or alimony.
In this case the ultimate disposition of a large sum of money is the principal issue. A modification of support payments by the husband would certainly have to be changed if the sum is awarded solely to him. From a policy standpoint it makes little sense to allow the trial court to be occupying itself with such matters only to have the very basis of the decision subsequently made a nullity after ruling by the appellate court. In other words if the trial court finds the husband in reduced circumstances, reduces the child support payments and shortly thereafter the appellate court awards substantially all the assets to the husband the so-called need or reduced circumstances is no longer the fact. Of course it can be urged that another petition for modification can be filed by the wife to secure an increase in the child support payments which of course increases the expense and time of the litigation.
The abandonment of our previous rule will only lead to extended litigation in the superior court on those divorce cases which are appealed. The results of such a rule can be of no aid to the parties, to the trial court nor to the cause of justice.
HAYS, C. J., concurs.