This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The question frequently arises whether a particular instrument is to be regarded as a conveyance inter vivos or as an instrument of a testamentary character, that is, a will. The distinction would seem to be clear, however difficult of application. If the instrument is intended to be immediately operative, it cannot be regarded as a will, and conversely, if it is intended to be operative only upon the death of the maker, it cannot be regarded as a conveyance inter vivos.19 The question is, in the last
16. 2 Pollock & Maitland, Hist. Eng. Law, 329, 331.
17. Holdsworth & Vickers, Law of Succession, 31; Maine, Anc. Law (4th Ed.) 173 et seq.; Har-wood v. Goodright, Cowp. 87.
18. 2 Pollock & Maitland, Hist. Eng. Law, 334, 345; Digby, Hist. Real Prep. (5th Ed.) 380.
19. The statement frequently made that whether an instrument is a deed or a will depends upon whether it passes a "present interest (See e. g. Ransom v. Pottawattamie County, 168 Iowa, 570, 150 N. W. 657; Glover v.
Fillmore, 88 Kan. 545, 129 Pac.
144; Sappingford v. King, 49 Ore. 102, 8 L. R. A. N. S. 1006, 89 Pac. 142, 90 Pac. 150; Trumbauer v. Rust, 36 S. D. 301, 154 N. W. 801; In re Edwall's Estate, 75 Wash. 391, 134 Pac. 1041; and cases cited in note to Phillips v. Phillips. A. & E. Ann. Cas. 1916D, 996) is in a sense correct, but it is open to criticism as suggesting that the distinction depends on tin-character of the interest which passes rather than on the tin at which it is to pass. Until the tator's death, nothing passes by a will.
Analysis, merely whether the maker of the instrument intended, by its execution, immediately to transfer an interest to another, or whether he intended merely to declare in whom an interest should vest upon his death, in case he did not subsequently indicate a different intention. The difficulty in the practical application of the distinction lies in the difficulty of ascertaining the intention of the maker of the instrument in this regard. That no estate in favor of the person named is to commence until the death of the maker of the instrument does not show that the instrument is testamentary in character,20 since an estate to commence at his death can, as previously stated,21 be created by a conveyance inter vivos. And the fact that the maker expressly reserves a life estate,22 or the possession and control of the property during his life,23 is perfectly compatible with the operation of the instrument as a conveyance inter vivos. Nor is the instrument necessarily a will because the beneficiary named has merely a possibility, and no assured prospect, of an estate, to commence upon the testator's death. For instance a conveyance may be made inter vivos of a life estate to commence in interest upon the grantor's death, in which case the beneficiary has, previous to the grantor's death, merely a possibility of an estate, dependent on his survival of the grantor.24 And one may, by a conveyance inter vivos, limit an estate to commence on the death of the maker of the instrument provided a particular contingency occurs, provided, for instance the transferee named survives the maker.25 In such a case the grantee would have merely a possibility of an estate, but the possibility becomes his immediately upon the delivery of the conveyance, and he cannot be deprived of the possibility by any act on the part of the maker.
20. West v. Wright, 115 Ga. 277, 41 S. E. 602; Kytle v. Kytle, 128 Ga. 387, 57 S. E. 748; Bowler v. Bowler, 176 111. 541, 52 N. E. 437; Love v. Blauw, 61 Kan. 496, 48 L. R. A. 257, 59 Pac. 1059; O'day v. Meadows, 194 Mo. 588, 112 Am. St. Rep. 542, 92 S. W. 637; Fellbush v. Fellbush, 216 Pa. 141, 65 Atl. 28.
21. Ante, Sec. 159.
22. Mays v. Burleson, 180 Ala. 396, 61 So. 75; Sharpe v. Matthews, 123 Ga. 794, 51 S. E. 706; Timmons v. Timmons, 49 Ind. App. 21, 96 N. E. 622; Lefebure v. Lefebure, 143 Iowa, 293, 121 N. W. 1025; Love v. Blauw, 61 Kan. 496, 48 L. R. A. 257, 78 Am.
St. Rep. 334, 59 Pac. 1059; Deck-enbach v. Deckenbach, 65 Ore. 160, 130 Pac. 729; Muntz v. Whitcomb, 40 Pa. Super Ct. 553.
23. Adair v. Craig, 135 Ala. 332, 33 So. 902; Guthrie v. Guthrie, 105 Ga. 86, 31 S. E. 40; Spencer v. Razor, 251 111. 278, 96 N. E. 300; Tansel v. Smith, 49 Ind. App. 263, 93 N. E. 548, 94 N. E. 890; Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329; Dozier v. Toalson, 180 Mo. 546, 102 Am. St. Rep. 586, 79 S. W. 420; Ran-ken v. Donovan, 166 N. Y. 626, 60 N. E. 119; Cook v. Cooper, 59 S. C. 560, 38 S. E. 218; Jones v Caird, 153 Wis. 384, 141 N. W. 228.
While a will is in its nature revocable and a conveyance inter vivos is in its nature not revocable, the fact that the instrument contains an express power of revocation does not show it to be a will.26 The right to revoke a will, which is based on the fact that the will does not become operative until the testator's death, is in effect a right to render the instrument absolutely nugatory, while an express power of revocation contained in a conveyance inter vivos does not involve a right to render the instrument absolutely nugatory, but merely empowers the grantor to divest an estate or interest which is created by the conveyance. Occasionally, language is used by the courts suggesting that the absence of an express power of revocation tends to show that the instrument was intended as a conveyance inter vivos,27 but the property of such an inference seems most questionable. The absence of an express power of revocation might quite as well be regarded as tending to show that the instrument was intended as a will, since a will is always revocable, and there is no possible object in inserting such an express power therein.
Is, no evidence of an expression, by word or act, of an intention that it shall operate as such, would seem to afford some room for an inference that it was intended to operate only at the maker's death,31 though an instrument which is in form clearly a conveyance inter vivos cannot, it would seem evident, be regarded as a will merely because it has not been delivered as a conveyance.32 In so far as a lack of delivery can be inferred from the maker's retention of possession of the instrument,33 and in so far as testamentary intention can be inferred from a lack of delivery,34 such intention can be inferred from the retention of possession. But the retention of possession is not conclusive of a lack of delivery,35 and it is certainly not conclusive of an intention that the instrument shall operate as a will rather than as a conveyance.