(dissenting).
I dissent.
The court has been presented with two valid joint accounts with one common joint depositor who appropriated the funds of one account to establish the second. We are asked to choose between the two. Resolution of the dilemma must turn on analysis of the two substantive issues raised by this case: (1) what rights accrue to co-tenants of a joint account opened according to statute; and (2) what effect is to be given to appropriation of all funds from a joint account by one co-tenant.
At common law, plaintiff Carroll’s claim to the funds in question would fail. A common law joint tenancy requires four unities: interest, time, title, and possession. Plaintiff’s testimony fails to establish unity of either interest or possession. Furthermore, Purdy’s appropriation of the funds in the first account destroyed whatever unities may have existed in that account and itself operated as a severance of the joint tenancy. The consequent right of survi-vorship was extinguished. It might also be noted that at common law defendant Hahn’s right to survivorship as a joint tenant would fail, since she also failed to establish unity of either interest or possession.
The relationships created by joint banking and savings accounts do not fit readily into common law concepts. In an attempt to meet the problems presented by these accounts, courts in other states have adopted many varying theories to explain what has been called the “poor man’s will.” Much confusion has resulted. Our Supreme Court fully discussed these various theories of joint tenancy and the resulting difficulties in In re Estate of LaGarce v. Mouldon, 487 S.W.2d 493 (Mo. banc 1972), and I will not repeat the arguments here.
Since joint accounts of the type presented by this case are governed by statute in Missouri, I quote the applicable section of § 369.150, RSMo 1969, V.A.M.R. (Savings and Loan Associations) :
“2. Such account, and any additions made thereto by any of them, shall become the property of such persons as joint tenants and shall be held for the *609exclusive use of the persons so named and may be paid to any person named therein, or the survivor or survivors of them.”
This statute and § 362.470, applying to joint accounts in banks and trust companies, were first reviewed in Ball v. Mercantile Trust Co., 220 Mo.App. 1165, 297 S.W. 415 (1927), where this court adopted the New York construction of the same statutory language. We held that deposits made and accounts opened within the purview of the above statutes presumptively became the joint property of the persons named as joint tenants, and that, absent competent evidence to the contrary, such deposits actually fixed ownership of the funds in the persons named as joint tenants, with all the incidents attaching to such ownership. The effect of this construction was that a deposit opened in compliance with the statute carries with it the incidents of joint tenancy, namely a transfer of a present interest in the moiety, or undivided half of the fund, and a future interest through survivorship in the whole of the fund. The presumption that a true joint tenancy was so created could be rebutted only by competent evidence showing that the parties in fact intended something otherwise.
This ruling was later affirmed by our Supreme Court in Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W.2d 58 (1928), and has been followed until recently. See Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28 (1930); In re Patterson’s Estate, 348 S.W.2d 6 (Mo.1961), and Melton v. Ensley, 421 S.W.2d 44 (Mo.App. 1967).
There has been, however, some confusion about which interest vest in the joint depositors when such a joint account is opened. Some have suggested that only a future interest through survivorship is carried with the deposit. In Moskowitz v. Marrow, 251 N.Y. 380, 167 N.E. 506 (1929) cited with approval in Ambruster v. Ambruster, supra, Judge Kellogg spoke to this question:
“. . . Assuming that, upon the making of the deposits by Fannie Manheimer, in the joint names of herself and Pearl Harris, the two become ‘joint tenants,’ it is immaterial whether Pearl Harris then acquired an interest in a moiety or an interest in the whole of the funds deposited. If she received the former, rather than the latter, to that extent at least the deposit was irrevocable, since she had acquired a vested property interest. (Emphasis added.)
“ . . . To say that they became joint tenants through survivorship only is to state an absurdity. Certainly the law has never indulged in the fiction that a joint tenancy between two persons may arise after the death of one person, when only one survives.” (at 509)
A Missouri court ruled on the same question in Horton v. Estate of Elmore, 420 S.W.2d 48, 51 (Mo.App.1967), where the court said:
“ . . . One aspect of a joint tenancy is that both parties presently have an ownership interest in the property held. Each one has a present interest in the property, it is not one or the other, it is both. ...”
Joint tenancy under § 369.150 was recently reconsidered by the Supreme Court in In Re Estate of LaGarce v. Mouldon, supra, where the court put to rest any of the strained constructions of the past. Justice Holman, speaking for a unanimous court, said:
“ . . . Our courts have placed limitations thereon and have added requirements thereto which are not contained in the statutes and are not warranted. Section 360.150 specifically and unqualifiedly provides that if the certificate is issued in the statutory form the account ‘shall become the property of such persons as joint tenants ... or the survivor.’ There is nothing in the statute which would warrant the conclusion that a rebuttal presumption is created *610that the deposit shall become the property of such persons as joint tenants and that it may be shown by competent evidence that it was not a joint tenancy even though the statutory form had been complied with. The statute says it 'shall become the property of such persons as joint tenants’ . . . ”
“It is our view that the statute creates what might be described as a statutory joint tenancy which should be given effect without consideration of the strict common-law requirements mentioned in the cases.” (Emphasis added.)
While the facts in LaGarce are different from those presented in this case, the ruling on the meaning of § 369.150 is applicable to all deposits made and accounts opened under that statute. As long as the parties comply with the statute, a true joint tenancy, unencumbered by the common law requirements of unity, is created. Presumptions about the intent of the parties when the account was opened are no longer valid. In fact, the intent of the parties is immaterial, in the absence of fraud, undue influence, mental incapacity, or mistake. The plain language of the statute, that “Such account . . . shall become the property of such persons as joint tenants . . . ” will be enforced.
Since a true joint tenancy is created by compliance with the statute, it necessarily follows that the incidents of such ownership attach from the moment the deposit is made. Both tenants, whether one or both contribute funds, become vested with a present interest in a moiety of the fund, and both are vested with a future interest through survivorship.
Turning to the facts presented by this case, it should be noted that the Carroll-Purdy account was established in compliance with § 369.150. I would therefore hold that the deposit by Purdy naming himself and Carroll as joint tenants created a true joint account. I would also hold that the deposit vested in both Carroll and Purdy (1) a present interest in an undivided half of the fund, and (2) a future interest in the whole of the fund through survi-vorship.
The second question raised in this appeal is whether one cotenant in a joint account may appropriate the entire fund for himself without liability to the other. Defendant Hahn asserts that Purdy’s withdrawal of funds from the Carroll account was lawful and acted to sever that account. Defendant claims that under § 369.150 the funds in a joint account “may be paid to any person named therein, or the survivor or survivors of them.”
The power to withdraw, however, is different from the power to appropriate the entire account. This court considered that difference in Feltz v. Pavlik, 257 S.W.2d 214, 218 (Mo.App.1953), where we said:
“. . . While either tenant of a joint bank account may, without the other’s consent, withdraw all or part of the fund . . . a joint owner may not assign the entire account . . . so as to divest the other joint tenant of his right to the funds. 14 Am.Jur., § 84, p. 148; 48 C.J. S. Joint Tenancy § 17, p. 936 . . .”
In Feltz we held that the withdrawer, who later died, had no power to divest his wife without her consent of her joint ownership in a bank account, and that the funds withdrawn retained their joint character when they were deposited in a new account with the withdrawer’s brother, and in later successive accounts when withdrawer died.
A similar ruling on the question of appropriation is given in Ambruster v. Ambruster, supra, where the court said (326 Mo. 51,31 S.W.2d 1. c. p. 37):
“. . . the joint form of the account, either or the survivor to draw, of itself alone raises a presumption of fact, or inference, that the joint interest of the depositors follows funds withdrawn by either and negatives the idea that such withdrawals were severed from the joint estate and appropriated by the drawer to his own use . . .”
When the presumptions ruled invalid by LaGarce are stripped from this ruling, we *611are left with the plain meaning that the joint interest of both depositors follows funds withdrawn by either.
New York courts interpreting a like statute have reached like results. In Moskowitz v. Marrow, supra, the court held that a true joint account, once established, could not be revoked by one of the cotenants, and that even a donor-depositor had no power to transfer funds from a joint account to an account in her own name. In Bricker v. Krimer, 13 N.Y.2d 22, 241 N.Y.S.2d 413, 191 N.E.2d 795 (1963), the court, in ordering a new trial, said that withdrawal of funds from a joint account does not destroy the joint tenancy, and that a joint tenant who withdraws in excess of his moiety is liable to the other tenant for the excess so drawn. See also Walsh v. Kennan, 293 N.Y. 573, 59 N.E.2d 409 (1944); In re Will of Filfiley, 63 Misc.2d 824, 313 N.Y.S.2d 793 (Sur.Ct.1970).
Consequently, I would hold that Purdy’s unilateral appropriation of the entire account with Carroll without Carroll’s knowledge or consent was ineffectual to destroy the joint tenancy. The funds on deposit with the Association standing in the name of defendant Hahn did not lose their character as joint property from the first account. I would further impose a constructive trust upon the funds now held by defendants.
Since the account opened by Purdy with defendant Hahn was also established according to statute, I would not follow Feltz, supra, in awarding all of the money in the original account to the original joint tenant. I would rule that only Carroll’s moiety in the first account could be traced to the second account. Bricker v. Krimer, supra. Plaintiff would therefore be entitled to one-half of the funds in the second Purdy-Hahn account at Purdy’s death, and defendant is entitled to the other half.
I would reverse the judgment with directions in accordance with the views expressed herein.