## Facts

- Ella Sherwood, anticipating possible death from surgery, signed an instrument labeled a quitclaim deed naming her second husband, Edward Sherwood, as grantee.
- Ella had experienced a will contest involving her first husband’s estate and wanted to avoid another contest by using a deed rather than a will.
- The instrument recited nominal consideration and purported to transfer all of Ella’s real and personal property to Edward only if he survived her.
- The document stated the transfer was “to vest and take effect only upon my decease,” and it reserved to Ella the right to revoke during her lifetime.
- Ella kept possession and control of her property while alive and did not make a present transfer of ownership to Edward.
- After Ella died, her brother and only heir at law, Walter Butler, brought suit to set aside the instrument, alleging undue influence and (separately) that the instrument did not make a valid lifetime transfer and was an invalid attempt at a testamentary disposition.
- The trial court found no undue influence and found that Ella intended Edward to receive her property, but held the instrument void because it was testamentary in character and not executed with statutory will formalities. The court awarded the property to Butler, subject to Edward’s statutory spousal rights.
- Edward appealed from the judgment invalidating the instrument.

## Issues

1. Did the instrument operate as a present conveyance (or completed gift) of an interest in Ella’s property, or was it testamentary in nature and therefore void because it was not executed as a will?
2. If it was not a valid deed, could the instrument nonetheless be sustained as a gift inter vivos or gift causa mortis?

## Decision

- The Appellate Division affirmed the judgment setting aside the instrument.
- The court treated the purported quitclaim deed as testamentary because it was expressly to take effect only upon Ella’s death, was conditioned on Edward’s survival, and was revocable during Ella’s life.
- Because the instrument was testamentary but did not satisfy the formal requirements for a will, it was void.
- The court rejected characterizing the instrument as a valid inter vivos gift or gift causa mortis because no present interest passed and Ella retained control and the power to revoke.
- As a result, Ella’s property passed to her heir at law (Butler), subject to Edward’s statutory share as surviving spouse.

## Legal Principles

- An instrument intended to transfer property only at the maker’s death, especially when revocable during life, is testamentary in character and must comply with will-execution formalities to be valid.
- A deed that postpones enjoyment until death can be valid only if it is delivered with intent to transfer some present interest (for example, a present remainder with a reserved life estate). If no present interest vests, the writing is not an operative deed.
- A gift inter vivos requires a present transfer that divests the donor of dominion and control; a promised future gift, without present transfer, is ineffective.
- A gift causa mortis likewise requires delivery effecting a present transfer subject to defeasance; a retained power of recall and a transfer that begins only at death are inconsistent with a completed gift.

## Conclusion

In *Butler v. Sherwood*, the court held that a “quitclaim deed” drafted to function like a will—effective only upon the grantor’s death, conditioned on the grantee’s survival, and revocable during the grantor’s life—did not convey any present interest and was therefore a testamentary disposition. Because it was not executed with the formalities required for wills, the instrument was void, and the decedent’s property went to her heir at law subject to the surviving spouse’s statutory rights.


Butler v. Sherwood, 196 A.D. 603, 188 N.Y.S. 242 (1922)