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Confusion often results from the attempt of a property owner to purchase some valuable thing from another while retaining the benefit of the purchase price until his death, a case where the law seems to permit a person to have his cake and eat it too. Frequently the transaction takes the form of an agreement whereby the promisor, in return for some present consideration given by the promisee, agrees to give the latter by will all the property which he has at his death. Thus the promisor obtains the benefit of the contract while retaining that control over his property which is consistent with the power of testamentary disposition. The confusion results from the attempt to attach to the transaction the characteristics of both a will and a contract. These characteristics are, however, entirely distinct. A contract operates immediately to create a property interest in the promisee; while a will is revocable, or, more properly speaking, inoperative or ambulatory until the death of the testator, at which time it operates to create a property interest in the beneficiary. Or to give the more apposite terminology, the formation of a contract immediately vests in the promisee certain rights, privileges, powers and immunities; while a will does not have a like effect as regards the beneficiary until the testator's death intervenes. And, as pointed out in Lawrence v. Prosser (1917, N. J. Ch.) 101 Atl. 1040, the distinction need not be obscured by the fact that the same instrument which is the will also contains the written evidence of the contract. The agreement is not made subject to change by reason of being embodied in a document which is so subject. Where the will has been changed, the agreement may be enforced by specific performance or by fastening a trust upon the property left by the deceased.
Date of Authorship for this Version
Testamentary Contracts and Irrevocable Wills, 27 Yale Law Journal 542 (1918)