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25. If the court rules for the nephew and against the daughter, what will be the most likely explanation?
When a homeowner became ill, he properly executed a deed sufficient to convey his home to his nephew, who was then serving overseas in the military. Two persons signed as witnesses to qualify the deed for recording under an applicable statute. The homeowner handed the deed to his nephew's friend and said, «I want [the nephew] to have my home. Please take this deed for him.» Shortly thereafter, the nephew's friend learned that the homeowner's death was imminent. One day before the homeowner's death, the nephew's friend recorded the deed. The nephew returned home shortly after the homeowner's death, learned about the deed, and took possession of the home. The homeowner had died intestate, leaving a daughter as his sole heir. When she asserted ownership of the home, the nephew brought an appropriate action against her to determine title. The law of the jurisdiction requires only two witnesses for a will to be properly executed.
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B is incorrect. Although the recording of a deed may raise the presumption of delivery, here the delivery occurred prior to the recordation of the deed. Delivery occurred when the homeowner physically handed the deed to the nephew's friend as the agent of the nephew, with the intent to pass the title.
C is incorrect. A gift causa mortis may only be made of personal property. In addition, the gift was not made in view of pending death from a stated peril. The facts only note that the homeowner was ill. This was a valid inter vivos gift of real property which was irrevocable on delivery of the deed to the nephew's friend.
D is incorrect. A testamentary document takes effect at the death of the testator and must have been executed with the requisite testamentary intent. The homeowner wanted the nephew to have title immediately and thus delivered the deed to the nephew's friend. The homeowner did not want to postpone delivery until his death. This was a valid inter vivos gift of real property which was irrevocable on delivery of the deed to the nephew's friend.