This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In their simplest forms a contract and a will bear little resemblance other than the fact that in each the law gives effect to the intention of the party who enters into such transaction. A will is a unilateral act without consideration, of no effect until the death of the testator, and subject to revocation during his life. A contract is a promise by one party to another either for value or under seal which gives to the promisee a present right to performance at the time fixed by the contract. Instruments, however, are found which are usually prepared by the party without the advice of counsel which contain such provisions as to make it in some cases doubtful whether the parties intend to bind themselves by contract or by one party making a testamentary disposition of property in favor of the other. The fact that a promise is to be performed at the death of the promisor does not of itself prevent the instrument from being a contract and it does not make it testamentary.1 A provision in a contract of partnership by which the surviving partner is to become the owner of the partnership property, is generally held not to be testamentary in character.2 The fact that the instrument recited "as a bequest I promise to pay" at the promisor's death, is not of itself sufficient to show that the instrument is a testament and not a contract.3 The fact that payment or performance is postponed until the death of the promisor is regarded in some jurisdictions as tending to show that the real intention of the promisor was to make a will and not to enter into a contract.4 This principle has been carried so far that a covenant in a partnership contract by which the partnership property is to belong to the surviving partner has been regarded as testamentary in character,8 even if by the specific terms of the instrument the surviving partner is to make a payment therefor to the family of the decedent.9
1 Delaware. Kirkpatrick v. Pyle, 6 Houst. (Del.) 569.
Illinois. Beatty v. Western College, 177 111. 280, 69 Am. St. Rep. 242 [sub nomine, Miller v. Western College, 42 L. R. A. 797, 52 N. E. 432].
Indiana. Price v. Jones, 105 Ind. 543, 55 Am. Rep. 230, 5 N. E. 683.
Iowa. Board of Trustees of Upper Iowa Conference v. Noyes, 165 la. 601, 146 N. W. 848; First Presbyterian Church v. Dennis, 178 la. 1352, L. R. A. 1917C, 1005, 161 N. W. 183.
Massachusetts. Krell v. Codman, 154 Mass. 454, 28 N. E. 578.
New York. Hegeman v. Moon, 131 N. Y. 462, 30 N. E. 487; GaNun v. Palmer, 216 N. Y. 603, 111 N. E. 223.
Pennsylvania. In re Maull's Estate, 186 Pa. St. 477 [sub nomine, In re Maul's Estate, 40 Atl. 1010]; Eisen-lohr's Estate, 258 Pa. St. 438, 102 Atl. 117.
2 McKinnon v. McKinnon, 56 Fed. 409, 5 C. C. A. 530; Murphy v. Murphy, 217 Mass. 233, 104 N. E. 466; Moore's Estate (No. 2), 228 Pa. St. 523, 77 Atl. 902.
3 First Presbyterian Church v. Dennis, 178 la. 1352, L. R. A. 1917C, 1005, 161 N. W. 183.
4 Caviness v. Rushton, 101 Ind. 500, 51 Am. Rep. 759; Pelley's Admr. v. Earles, 107 Ky. 640, 55 S. W. 550; Ferrara v. Russo, 40 R. I. 533, L. R. A. 1918B, 905, 102 Atl. 86.