¶1(concurring in part and dissenting in part).
¶2Much of the foregoing opinion is based upon prior decisions with which I disagreed. To the extent that it does so, I concur in it solely on the ground of stare decisis.
¶3Since the case is being remanded for further hearing, I think it is important to ascertain who held title to the real estate which was sold to obtain the money used to buy the bonds in question. The court found that the real estate “had been held by them [referring to Mr. and Mrs. Marsh] and owned by them for a period of twenty years before the sale thereof.” If this was held in the names of Mr. and Mrs. Marsh, either as joint tenants, tenants in common, or in partnership, then I think the conclusion of the trial court would be warranted under the last two lines of R. C. M. 1947, sec. 91-4405, depending upon the interest of each in the real property, and this without reference to the question of delivery of the bonds.
¶4Likewise in determining whether there was a delivery of the bonds, it should be kept in mind that both of two joint owners cannot each have exclusive possession of them. I think if Mrs. Marsh and Mr. Marsh each had access to the bonds, then there was sufficient delivery to constitute her a joint owner with her husband, regardless of the source of the purchase money. It is my view that if Mrs. Marsh as well as her husband had access to the bonds, then there was a joint ownership thereof, and section 91-4405 governs as to their taxability, i. e., they are taxable to the extent of fifty percent of their value unless the court finds that the last two lines of that section have application.