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 .
24. See e. g. Lindemann v. Dobossy, - (Tex. Civ. App.) - 107 S. W. Ill; West v. West, 155 Mass. 317, 29 N. E. 582.
25. See e. g., Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Phifer v. Mullis, 167 N. C. 405, 83 S. E. 582. If Kenney v. Parks, 125 Cal. 146, 57 Pac. 772; Dunlap v. Marnell, 95 Neb. 535, 145 N. W. 1017; In re Edwall's Estate, 75 Wash. 391, 134 Pac. 1041, are to be regarded as deciding the contrary, they cannot, it is submitted, be upheld.
26. Mays v. Burleson, 180 Ala. 396, 61 So. 75; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Tennant v. John Tennant Memorial, 167 Cal. 570, 140 Pac. 242; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Stamper v. Venable, 117 Term. 557, 97 S. W. 812; 1 Jarinan, Wills, 22.
That an instrument has been expressly delivered as a conveyance would seem to be conclusive that it is not intended to operate as a will, unless it is susceptible of division into two instruments, one a will and the other a conveyance. Usually, however, even though the circumstances are such as to create a presumption of delivery, so as to validate the instrument if regarded as a conveyance, they are not such as to show conclusively that the instrument was intended to operate as a conveyance. If, for instance, the maker hands the instrument to the transferee named, though this creates a presumption of delivery in case the instrument is to be regarded as a conveyance,28 and may tend to show that the instrument was intended as a conveyance,29 it is perfectly possible that the instrument was put in such transferee's care as a will, and that it was not intended to operate as a conveyance.80 On the other hand, the fact that there is no evidence of delivery of the instrument, such as is necessary to support it as a conveyance inter vivos, that
27. See e. g. Abney v. Moore, 106 Ala. 131, 18 So. 60; Harper v. Reaves, 132 Ala. 625, 32 So. 721; Stroup v. Stroup, 140 Ind. 179, 27 L. R. A. 523, 39 N. E. 864; Lacy v. Comstock, 39 Kan. 86, 39 Pac. 1024; Kelleher v. Kernan, 60 Md. 440; Ellis v. Pearson, 104 Tenn. 591, 58 S. W. 318.
28. Ante, Sec. 463, note 67.
29. Abney v. Moore, 106 Ala. 131, 18 So. 60; Driscoll v. Driscoll, 143 Cal. 528, 77 Pac. 471; Youngblood v. Youngblood, 74 Ga. 614; Hathaway v. Cook, 258 111. 92, 101 N. E. 227; Fellbush v. Fellbush, 216 Pa. 141, 65 Atl. 28; Billings v. Warren, 21 Tex. Civ. App. 77, 50 S. W. 625.
30. See Fellbush v. Fellbush, 216 Pa. 141, 65 Atl. 28; Griffin v. Mcintosh, 176 Mo. 392, 75 S W. 677; Tewkesbury v. Tewkesbury, 222 Mass. 595, 111 N. E. 394.
The fact that an instrument of doubtful character is invalid if regarded as a conveyance while valid if regarded as a will, has been referred to as a ground for regarding it as a will,36 and conversely, the fact that an instrument is invalid if regarded as a will while valid if regarded as a conveyance has been considered a ground for regarding it as a conveyance.37 This view is based partly upon the policy of the courts to give
31. Sharp v. Hall, 86 Ala. 110, 11 Am. St. Rep. 28; Rice v. Carey, 170 Cal. 748, 151 Pac. 135; Nichols v. Chandler, 55 Ga. 369; Nichols v. Huddleson, 13 B'. Mon. (Ky.) 299; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; Edwards v. Smith, 35 Miss. 197; Miller v. Holt, 68 Mo. 584; Kresecker's Estate, 170 Pa. St. 476; Roudtree v. Rountree, 85 S. C. 383, 67 S. E. 471.
32. See Dexter v. Witte, 138 Wis. 74, 119 N. W. 891.
33. Ante, Sec. 461, note 62.
34. Ante, this section, note 31.
35. Ante, Sec. 461, note 43.
36. Heaston v. Kreig, 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805; Symes v. Arnold, 10 Ga. 506; Sharp v. Hall. 86 Ala. 110. 11 Am. St. Rep. 28; Trumbauer v. Rust, 36 S. D. 301, 154 N. W 801; 1 Jarman, Wills, 22. And see ante, this section, note 31.
37. Jacoby v. Nichols, 23 Ky. L. Rep. 205, 62 S. W. 734; Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Abney v. Moore, 106 Ala. 131, 18 So. 60; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378.
To an instrument a legal operation wherever possible, and partly upon the consideration that the maker of the instrument must have intended it to operate in the mode in which he rendered it capable of operating. The fact, however, that an instrument which is clearly intended to operate as a will is not executed with the formalities required in the case of a will is not sufficient, it would seem, to give it validity as a conveyance inter vivos, but it is totally inoperative.38 The maker's intention that the instrument shall not be operative until his death excludes an intention that it shall be immediately operative, which latter intention is necessary to constitute delivery.39 With this intention lacking, the fact that the maker hands the instrument to the transferee named therein could not make the instrument effective as a conveyance inter vivos.40
That an instrument otherwise in the form of a conveyance inter vivos contains a clause to the effect that it is not to take effect until the maker's death has in some cases been regarded as showing a testamentary intent,41 while in others this has been regarded as not inconsistent with the operation of the instrument as a conveyance inter vivos, and as merely postponing the transferee's right of enjoyment.42 Such language would seem, prima facie, to indicate a testamentary intention, but when read in connection with the context and the surrounding circumstances, it may no doubt be susceptible of a different construction. The decisions which regard such a clause as merely postponing the right of enjoyment are to a considerable extent, it appears, based on the consideration that otherwise the instrument would be a nullity because not executed as a will. It does not seem that any absolute rule that such a clause shows, or that it does not show, a testamentary intention, should properly be aserted, it being a question merely of the construction of the language used. One may, of he chooses, by conveyance inter vivos, create in another an estate to commence upon his, the grantor's, death,42a and the fact that in the particular instrument he indicates an intention to create such an estate is certainly not conclusive that the instrument is a will and not a conveyance.