Definition
"Will and convey" is a phrase used in deeds and other instruments of conveyance, historically employed when a grantor wished to transfer property using language that blended testamentary phrasing ("will") with operative conveyancing language ("convey"). The phrase functions as words of grant — that is, it operates to pass title in the same manner as the more standard formulation "give and convey." The inclusion of "will" in this context does not render the instrument testamentary in character; it is treated as surplus or equivalent operative language that carries the same legal weight as a present conveyance.
Common Confusion
The word "will" in this phrase is not a reference to a last will and testament. A document that "wills and conveys" property is not thereby converted into a testamentary instrument requiring probate or execution under the formalities governing wills. Courts have consistently read "will and convey" as language of present grant, not future testamentary disposition. Researchers encountering this phrase in historical deeds should not assume the instrument is ambulatory (i.e., speaking as of the grantor's death) — it is a deed, and its effect is immediate upon delivery. The confusion is understandable given the ordinary meaning of "will" as the document by which a person disposes of property at death, but in the conveyancing context the word carries no such implication.
Why It Matters in Research
This phrase surfaces most frequently in nineteenth-century American deeds, particularly in Southern and border states where conveyancing practice was less standardized and drafters sometimes imported language loosely borrowed from testamentary forms. The Kentucky authority cited in Bouvier — construing "will and convey" as equivalent to "give and convey" — reflects the general judicial approach of reading such language in context and giving it operative effect rather than treating the presence of "will" as a defect or ambiguity.
Researchers working with historical land records, chain-of-title documents, or deed abstracts from this period should be alert to the following:
First, instruments using "will and convey" may appear in deed books, not probate records. If a title search or historical research turns up this phrase and the instrument is not found in probate files, that is the expected result — look in the grantor-grantee indexes for recorded deeds.
Second, the phrase is occasionally encountered in instruments that are genuinely ambiguous as to whether the grantor intended a deed or a will — typically holographic documents or instruments not witnessed in conformity with either deed or will formalities. In those cases, the presence of "will and convey" becomes relevant to judicial construction of the instrument's character. Courts generally look to the totality of the instrument rather than this phrase alone.
Third, because "will and convey" is functionally redundant — both words do the same work — it belongs to the broader class of doublet and triplet expressions common in English legal drafting (give, grant, and convey; remise, release, and forever quitclaim). Understanding this pattern helps researchers decode dense conveyancing boilerplate in historical sources.
Historical Dictionary Support
Bouvier's is the principal historical dictionary source for this term, and its treatment is characteristically brief: "will and convey" are construed as equivalent to "give and convey," with a citation to a Kentucky appellate decision. Bouvier directs readers further to the entry for "Estates at Will," which is a separate concept entirely — a reminder that "will" in property law carries multiple meanings depending on context, and Bouvier's cross-reference is navigational rather than definitional.
No other major historical law dictionaries (Black's early editions, Burrill's) appear to have carried a dedicated entry for this phrase as a compound term. Its absence from those sources likely reflects the fact that it was understood as a variant of standard words-of-grant language rather than a term of art requiring independent definition. Bouvier's inclusion of it signals that the phrase generated enough practitioner uncertainty — likely from the will/deed confusion described above — to warrant at least a brief gloss.
Jurisdictional Note
The authority in Bouvier is from Kentucky, but the interpretive principle — that "will and convey" operates as words of present grant equivalent to "give and convey" — reflects the general common-law approach to surplus or variant grant language across American jurisdictions. Researchers should verify treatment under applicable state deed construction rules when the instrument's character is genuinely disputed.