The opinion
Schwellenbach, J.
(dissenting) — When the money was deposited it was community property. It retained such status during all of the time that it was on deposit. However, careful study of the facts clearly reveals that the money was deposited by the community composed of Mr. and Mrs. Munson under an
agreement
between Mr. and Mrs. Munson and the savings and loan association that (1) in the event of the death of either of the depositors, the survivor could take all; and (2) under the further agreement that, during the life of the parties, either Mr. or Mrs. Mun-son could withdraw all, or any part, of the funds deposited, and, if such person wished, to appropriate such funds withdrawn to his or her own use (no written instructions to the contrary having been given to the association).
This agreement was in complete conformity with the rule laid down by this court in
In re Witte’s Estate,
21 Wn. (2d) 112, 150 P. (2d) 595 , to the effect that a husband and wife, by their agreement, may change the status of community property. We stated:
“The status of property, when once fixed, remains so in character until changed by deed, by agreement of the parties, by operation of law, or by the working of some form of estoppel.”
This was a mutual
agreement
entered into by and between Mr. and Mrs. Munson and the association, providing for the contingent determination of the status of the property at
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some later time. Each deposit was made contingent upon the right of withdrawal and appropriation by either of the depositors. All, or a part, of the funds could be withdrawn by either for the purpose of applying the proceeds to a community purpose. Such funds withdrawn would continue to be community property. It would be the act of withdrawal with intention to appropriate to the use of the withdrawer, which would change the status of the property from community to separate.
When Mrs. Munson withdrew the entire fund and appropriated it to her own use, she exercised the rights granted to her under the agreement and thereby changed the status of the property from community to separate. I believe that the judgment should be affirmed.