No Present Conveyance, No Deed: Mississippi High Court Holds “Upon Sale or My Death Shall Be Shared” Instruments Are Testamentary, Not Inter Vivos Conveyances

Introduction

This commentary analyzes the Supreme Court of Mississippi’s decision in In the Matter of the Estate of Gary Wayne Johnson, Deceased: Zoa Ann Manners v. The Estate of Gary Wayne Johnson, Brian Johnson, Richard Wayne Johnson and Steven Howard Johnson (Oct. 2, 2025). The case sits at the intersection of real-property conveyancing and estate succession. It asks whether an informal, notarized writing—styled “Article of Agreement” and stating that lots “upon sale or my death shall be shared” among siblings—operates as a deed conveying a present property interest or, instead, reflects a testamentary plan that is ineffective absent compliance with the statute of wills.

The chancellor rejected the sister–claimant’s effort to treat the document as either a binding contract or an inter vivos deed; the Court of Appeals reversed, treating the instrument as a valid conveyance of a future interest that vested upon delivery; and the Supreme Court reversed the Court of Appeals, reinstating and affirming the chancellor. The Court’s opinion reaffirms—and meaningfully clarifies—Mississippi’s longstanding “present-interest” rule: an instrument constitutes a deed only if, on its face and upon delivery, it unambiguously conveys a present interest in the land. Instruments whose efficacy is wholly contingent on the grantor’s death (or other future event) are testamentary and must comply with the statute of wills.

Summary of the Opinion

- Parties and property: Gary Johnson acquired three lots (Nos. 11, 12, and 13) by warranty deed from his mother in 1996. In 2002, Gary signed and had notarized an “Article of Agreement” reciting that Lots 12 and 13, “although in my name, was not and is not for my benefit alone” and that “upon sale or my death [they] shall be shared” by himself and his sisters in accordance with their parents’ wills. He delivered the document to his sister, Zoa Ann; it was not recorded. After Gary died intestate in 2021, Zoa Ann filed a claim against his estate asserting a one-quarter ownership interest in Lots 12 and 13.

- Trial court: The chancellor found the Article of Agreement insufficient as a contract (no mutual assent or consideration) and not operative as a deed (no unambiguous present conveyance; ambiguous and inartful terms). Claim denied.

- Court of Appeals: Reversed, holding the document validly conveyed a vested future interest (akin to a deed reserving a life estate), not a testamentary gift.

- Supreme Court: Reversed the Court of Appeals and reinstated the chancellor’s judgment. The Court held:

Contract theory fails: the Article was a unilateral statement, signed only by Gary and lacking consideration; no enforceable contract arose (Logan v. RedMed, LLC).
Deed theory fails: a valid deed must convey a present interest upon delivery. The Article of Agreement contained no express words of present conveyance, invoked future-contingent language (“upon sale or my death shall be shared”), and reflected no explicit life-estate reservation or other hallmarks of an inter vivos transfer. It is testamentary in character and ineffective absent compliance with the statute of wills (Ford v. Hegwood; Cunningham v. Davis; Coulter v. Carter; Simpson v. McGee).
Mississippi’s Transfer-on-Death (TOD) Act does not apply here; and, in any event, it governs TOD deeds executed on or after July 1, 2020.

- Special concurrence (Randolph, C.J.): The absence of any present transfer language is dispositive. The phrase “upon sale or my death shall be shared” confirms that no present interest passed; use of “shall” denotes futurity, and retention of the right to sell is incompatible with a completed conveyance.

- Dissent (Coleman, P.J.): The instrument, though inartful, should be treated as a deed reserving Gary a life estate with a vested remainder in his sisters; the statute (Miss. Code § 89-1-1) allows conveyances “to vest immediately or in the future,” and Mississippi law eschews technical formalism if an intention to pass title is manifest.

Detailed Analysis

Precedents and the Two Complementary Lines of Cases

Mississippi’s jurisprudence distinguishes sharply between:

Deeds that convey a present interest upon delivery—even if the grantor reserves a life estate (the “Buchanan line”); and
Instruments that are wholly ineffective until the grantor’s death (the “Tapley line,” testamentary in character), enforceable only if executed as wills.

The Court, following Ford v. Hegwood, canvassed and applied both lines.

The “Buchanan” line (present conveyance with reserved life estate)

Buchanan v. Buchanan (1959): Upheld a deed with “convey and warrant” language and an explicit reservation—“so long as she shall live”—as conveying a present interest subject to a retained life estate. The grantee’s enjoyment was postponed, not the vesting.
Watts v. Watts (1945): Deed “in words and form” of a deed, acknowledged, recorded, and expressly reserved a life estate; deemed sufficient to pass an immediate (vested) interest.
Tanner v. Foreman (1951): Express words “we convey and warrant,” consideration stated, delivery established, and a clear life estate reservation; title vested immediately subject to the grantor’s right of possession for life.
Stubblefield v. Haywood (1920): Though inartfully drafted, the instrument contained words of grant and an express reservation of the life estate; construed as a deed after “careful consideration of all its provisions.”

The “Tapley” line (testamentary instruments ineffective as deeds)

Simpson v. McGee (1916): Instrument stating “to take effect only after [grantor’s] death” and lacking consideration and an express grant clause was testamentary, not a deed.
Coulter v. Carter (1946): Although the writing had words of conveyance and consideration and was recorded, the clause “not until the death of both grantors does the title pass” rendered it testamentary; no present interest was conveyed.
Cunningham v. Davis (1884): A purported deed reserving the right to “alter, change, or entirely abolish” during the grantor’s life and stating it would “not take effect until after [his] death” was fundamentally testamentary and revocable; it conveyed no present interest.
Tapley v. McManus (1936) and related cases (Peebles, Palmer, Gaston, Ates, Smith, White): Instruments that defer vesting until death are wills in substance; they must comply with the statute of wills.

Modern clarification

Ford v. Hegwood (1986): Synthesized the two lines—either the instrument conveys a present interest (deed) or it is testamentary (will formalities required).
Oaks v. Ball (Estate of Greer) (2017): Reiterated that the “present-interest” test is dispositive; use of terms indicating futurity (“shall,” “will”) can signal the absence of present vesting. Also emphasized party status and formality in the analysis.

The Court’s Legal Reasoning

1) The Article of Agreement did not create an enforceable contract

Applying the elements of contract (Logan v. RedMed, LLC; LAGB v. Total Merchant Services), the Court found:

Only Gary signed; there were not “two or more contracting parties” assenting to mutual obligations.
No consideration was mentioned or proved.

On those features alone, the document was a unilateral statement and not a contract enforceable against the estate under Mississippi Code § 91-7-63.

2) The instrument is not a deed because it conveys no present interest upon delivery

The doctrinal fulcrum is straightforward: “in order to be a deed the instrument must convey some estate of some kind effective upon the delivery of the instrument” (Coulter). The Court identified multiple indicia of non-deed character:

Future-contingent language: “Upon sale or my death shall be shared” speaks in the future and makes sharing contingent on later events. It postpones creation of the interest itself, not merely enjoyment.
No words of present grant: The Article lacks the customary (though not exclusively required) words of conveyance (e.g., “grant, bargain, sell and convey”) contemplated by Miss. Code § 89-1-41 and regularly found in upheld deeds.
No express reservation of a life estate: Unlike the Buchanan-line cases, the writing nowhere says Gary is reserving a life estate while presently conveying the remainder.
Form, title, and conduct: Gary titled it “Article of Agreement,” not a deed; he referenced “separate warranty deeds” for the lots and had experience with formal deeds. He could have had a deed prepared but did not. The document was never recorded, and the claimant proceeded as a creditor rather than filing a title action to reform or quiet title—behavior consistent with recognizing it was not a deed.
Ambiguity: The instrument is inartful and ambiguous, lacking the clarity the Court demands to constitute a deed that transfers present title.

The Court placed the instrument squarely in the Tapley/Cunningham line: at best it attempted to establish a contingent estate or future plan of disposition, which is testamentary and subject to the statute of wills (i.e., invalid absent will formalities).

3) The Real Property Transfer-On-Death Act does not rescue the document

Mississippi’s Transfer-On-Death deed statute (Miss. Code §§ 91-27-1 to -37) creates a statutorily authorized, non-probate means to pass title at death. But:

It applies only to TOD deeds executed on or after July 1, 2020; and
The document here was executed in 2002 and is not a TOD deed in form or effect.

4) Deference to the chancellor’s fact-finding

Applying the abuse-of-discretion/manifest-error standard for chancery findings (Christmas v. Christmas (In re Will of Beard); Estate of Thomas), the Court concluded substantial evidence supported the chancellor’s determination that the writing was neither a deed nor a contract.

Special Concurrence and Dissent: The Fault Lines

Special concurrence (Randolph, C.J.)

Plain-language focus: The non-deed contains no words transferring any property interest at delivery; the future-tense “shall” and the clause “upon sale” demonstrate no present conveyance.
Retention of sale right: Retaining the right to sell after signing indicates no current transfer; one cannot convey and also reserve an unrestricted right to alienate the same interest. The concurrence cites Dukes v. Crumpton on restraints on alienation to underscore the incompatibility.
Party testimony: The claimant herself repeatedly described the writing as a “contract,” not a deed, and understood that a deed would have been the proper vehicle had a conveyance been intended.

Dissent (Coleman, P.J.)

Life estate/remainder framing: The dissent would construe the Article as a deed that reserved Gary a life estate and vested the remainder in his sisters at delivery, relying on Miss. Code § 89-1-1 (conveyances may “vest immediately or in the future”) and cases favoring effectuating intent despite inartful drafting (Estate of White; Allen v. Boykin).
Futurity vs. vesting: The dissent argues “shall” denotes mandatory effect upon the future event (death) but does not prevent present vesting of a remainder; postponement of enjoyment is compatible with immediate vesting.
Distinguishing Coulter: The dissent reads Coulter narrowly and emphasizes the absence here of a clause stating title does “not pass” until death.
Sale proceeds assignment: The dissent interprets the “upon sale” clause as an assignment of sale proceeds consistent with a remainder structure rather than a reservation of the right to defeat a conveyance.

Why the Majority’s Reasoning Controls Under Existing Law

The majority hews closely to Ford’s two-track framework and the present-interest test. The dispositive gap here is the absence of any unambiguous present grant of an estate in land. In all Buchanan-line cases, the instrument either:

Employs words of present transfer (e.g., “convey and warrant”); and
Expressly reserves a life estate, making clear that the grantee’s title vests immediately while possession is postponed.

This Article did neither. Instead, it:

Spoke in terms of future sharing “upon sale or my death,”
Used no present-tense grant of title, and
Lacked the structural signals (acknowledgment as a deed, recording, formal conveyancing) that fortified instruments in the upheld cases.

Under those circumstances, classifying the instrument as testamentary is both consistent with precedent and essential to preserve the statute-of-wills boundary between inter vivos conveyances and death-time dispositions.

Impact and Practical Implications

For Mississippi Property and Probate Practice

Reaffirmed bright line: To qualify as a deed, the instrument must convey a present interest at delivery. Language tying effect to a future event—“upon my death,” “upon sale,” or reserving revocation—signals testamentary character.
Form and words matter: While Mississippi does not insist on talismanic phrases, courts look for unambiguous words of present grant and, where relevant, an express reservation of a life estate. Titles (“deed” vs. “agreement”), acknowledgments, and recording are probative of character, even if not individually dispositive.
Contracts must be bilateral: If the theory is “contractual obligation to convey,” ensure mutual assent and consideration; a unilateral, notarized promise is not enough.
Don’t rely on informal writings to pass land at death: Use a will compliant with Miss. Code § 91-5-1, a properly drafted deed reserving a life estate, a trust, or a statutory Transfer-on-Death deed (Miss. Code § 91-27-1 et seq.) for instruments executed on or after July 1, 2020.
Litigation posture matters: A claimant who believes a deed conveyed title should pursue title remedies (quiet title, declaratory relief, reformation) rather than creditor claims alone—particularly where delivery and possession are at issue.

Drafting Checklist: Creating a Valid Life-Estate Deed

Use clear words of present grant (e.g., “grant, bargain, sell and convey”).
Expressly reserve the grantor’s life estate (e.g., “Grantor reserves a life estate in the premises”).
Define the grantees and the remainder precisely (e.g., names, shares, survivorship terms).
Ensure execution formalities, acknowledgment, and delivery; record the deed to give notice.
Avoid language indicating revocability or that the instrument “takes effect” only at death.
Do not reserve an unrestricted right to sell the property after “conveying” it; structure any power of sale consistently with the estate conveyed, or use a trust.

Guidance on Ambiguous Instruments

Ambiguity is fatal when it obscures whether any present estate passed; courts will not “reform” an intent to convey into a conveyance where the instrument’s text fails to do so.
Inartful drafting can be forgiven if the intent to pass present title is clear from the four corners; if the vesting is expressly deferred until death, the instrument is testamentary.

Complex Concepts Simplified

Deed: A written, signed instrument that transfers a present interest in land upon delivery. Recording gives notice but is not essential to validity between the parties.
Present interest: A real-property interest that vests immediately when the deed is delivered, even if possession is delayed (e.g., remainder vested now, possession after life tenant’s death).
Life estate: The right to possess/use property during a person’s life; a remainder is the future interest that becomes possessory upon the life tenant’s death.
Testamentary instrument: A writing that takes effect only at death; it must comply with will formalities (Miss. Code § 91-5-1) to be valid.
Transfer-On-Death (TOD) deed: A statutory device allowing property to pass at death outside probate if executed in strict compliance with Miss. Code §§ 91-27-1 to -37 (available for qualifying instruments executed on or after July 1, 2020).
Consideration: A bargained-for exchange; required for contracts but not for deeds of gift. The Court noted lack of consideration to reject the “contract” theory, not to invalidate a deed.
Words of conveyance: Phrases indicating a present transfer of title (e.g., “grant, bargain, sell and convey”). Mississippi does not require magic words, but clear present-tense grant language is crucial.

Conclusion

The Supreme Court’s decision is a strong reaffirmation of Mississippi’s present-interest rule: a writing is a deed only if it unambiguously transfers a present estate upon delivery. Instruments that say property “shall be shared upon sale or death,” without express words of present grant and without a clear reservation of a life estate, are testamentary in substance and invalid as conveyances unless executed with will formalities. The Court’s reliance on Ford’s dual-track framework, and its careful distinction between Buchanan-line deeds and Tapley-line testamentary instruments, provides clear drafting guidance and litigation markers going forward.

Practically, the message is simple: when the goal is to vest title now (even if possession is postponed), use a deed with clear words of present grant and an explicit life-estate reservation. When the goal is to transfer at death, use a will, a trust, or a statutorily compliant TOD deed. Informal “agreements” that speak in future terms—even if notarized and delivered—will not suffice to convey Mississippi real property.