(dissenting). The majority concedes that the evidence in this case proves that in setting up the joint bank account it was the intention of the depositor, Charles Ratliff, that his son and daughter should have the right of survivorship in the account; that a joint tenancy was intended. But the majority holds that the depositor did not take the steps necessary to accomplish his intention. I do not agree. I think the intention of the depositor should prevail.
Here, the evidence is overwhelming that it was the intention of the depositor to make his son and daughter owners of the account as joint tenants. The majority does not contend that the evidence shows otherwise, but say, in effect, that it was admitted that the account was not set up in proper form to constitute a joint tenancy. In my opinion, the record in this case does not show such admission. In fact, appellants stoutly contend that the account as set up by their father is sufficient to constitute a joint tenancy under the provisions of our statute, Ark. Stats. 67-521. The account was set up in form to be paid to either the father, or the son or daughter, or the survivor of them. The bank would have honored a check drawn by either of them, or the survivor, as was done in Black v. Black, 199 Ark. 609, 135 S. W. 2d 837, and Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709.
What more was necessary? The statute makes no other requirement in order to make an account a joint tenancy. If there is some particular form that a depositor has to fill out to make an account a joint tenancy, the majority should spell out what that form is. The statute provides for none. This court has held heretofore that the filling out of a form, furnished by the bank for the very purpose of providing for survivorship, was not sufficient to bring the account within the purview of the statute, where there was parole evidence proving that it was not the intention of the depositor to create a joint tenancy in the account. Park v. McClemens, supra. There, it was held that the intention of the depositor controlled, and not the printed matter on the signature card that was furnished by the bank. To the same effect is Powell v. Powell, 222 Ark. 918, 263 S. W. 2d 708.
Now this court is holding that there is no right of survivorship when the evidence proves overwhelmingly that it was the intention of the depositor to create the right of survivorship in the money. The majority points out that under the common law the account would not be owned as a joint tenancy, but it is also pointed out that we are not dealing with a joint tenancy created by the common law, but one provided for by statute.
It was the intention of the depositor, and as I read the record, it was the understanding of the bank that the account was payable to appellants, or their father, or the survivor. Mr. Delford Rieff, president of the bank testified:
“Q. Let’s go back to my original question then: Just state from the ledger sheet who would have been permitted to make withdrawals on that account on and after October 21, 1961?
A. Mr. Ratliff, Edith Matthews or Herbert Ratliff. ’ ’ In these circumstances the account became a joint tenancy. The statute makes it a joint tenancy. The statute uses words of art “joint tenancy”. Such words are to be construed in their technical meaning. It is said in 50 Am. Jur. 265: “Technical words and phrases which have acquired a peculiar and appropriate meaning in law, cannot be presumed to have been used by the legislature in a loose popular sense, but, to the contrary, have been presumed and assumed to have been used according to its legal meaning, and will ordinarily be interpreted, not in its popular, but in its fixed legal sense and with regard to the limitations which the law attaches to them.” Thus, when the legislature provided for a joint tenancy in the account, it automatically provided that one who owns as a joint tenant has the right of survivor-ship.
In 14 Am. Jur. 79, it is said: “An estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship . . .”. In Ferrell v. Holland, 205 Ark. 523, 169 S. W. 2d 643, it was pointed out that there can be a joint tenancy in almost any kind of personal property, and that survivorship is one of the essential results of joint tenancy. In 48 C.J.S. Joint Tenancy § 1, p. 910, it is said: “Survivorship is the distinctive characteristic of an estate in joint tenancy.”
In 50 Am. Jur. 272, it is said: “When the meaning of a law is evident, to go elsewhere in search of conjecture in order to restrict or extend the act would be an attempt to elude it, a method which, if once admitted, would be exceedingly dangerous, since there would be no law, however definite and precise in its language, which might not by interpretation be rendered useless.”
Our statute, Ark. Stats. 67-521, adopted in 1937, providing for joint tenancy in bank accounts, was apparently adopted from the State of Missouri. (Mo. Rev. Stats., Yol. 3, Sec. 362.470, adopted by the State of Missouri in 1915.) The Arkansas and Missouri statutes are identical, word for word. The Missouri court has held that a signature card signed by a depositor constitutes a prima facie showing of joint tenancy in the account, but such prima facie case is subject to rebuttal. Kaimann’s Estate, 229 S. W. 2d 527 (1950). We have held the same thing. In Von Tungeen v. Chapman, 233 Ark. 219, 343 S. W. 2d 782, the court said: “Reviewing the evidence on trial de novo here, we find the record utterly bare of evidence to overcome the prima facie intent which we hold the signature card creates as to the existence of a joint tenancy.”
The Missouri case of Princeton State Bank v. Wayman, 271 S. W. 2d 600 (1954), is directly in point with the case at bar. In that case no signature card or other writing was used evidencing the kind of joint account that was established. The Missouri court held that the Missouri statute 362.470, identical with our statute 67-521, providing for joint tenancy, applied because it was shown by the evidence that it was the intention of the depositor that the account be held as a joint tenancy. There, the court said: “It is the intention that controls.” The court further said that there was no statutory presumption, but that the burden was on those seeking to establish joint tenancy to prove their contention by a preponderance of the evidence, and that the evidence in that case proved the joint tenancy. Here, the majority apparently concedes that appellants made such proof.
Since I believe that the intention of the depositor should control, I respectfully dissent.
Mr. Justice Johnson joins in this dissent.