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A TREATISE

ON

THE LAW OF LEGACIES.

CHAPTER I.

Of Donations mortis causâ.

PROPER Legacies may be classed under two heads; viz. General and Specific. The former may be defined the testamentary gift of personal estate as of goods and chattels, or money generally. The latter, the bequest of particular things distinguished from all others of the same kind, as of money in a bag, a piece of plate, or a term of years. There is an improper kind of Legacy, termed a Donatio mortis causâ, which it is proposed to consider in the present chapter. The subject will be discussed under the following divisions:

SECT. I. The description and nature of a Donatio mortis causâ. SECT. II. The circumstances required to constitute a Donatio mortis causâ.

1.--As to the gift of the Donee.

2.-The delivery of Possession; and,

3.-Of Evidence admissible to prove the gift and the sufficiency of such evidence.

SECT. III. What will defeat the Donation when originally good.

I. The description and nature of a Donatio mortis causâ. Swinburne (a) on the authority of the Digest(b) notices three kinds of Donations mortis causâ.

First, Where a person, not terrified by the apprehension of any present peril, but moved by the general consideration of man's mortality, makes a gift.

Secondly, Where a person moved by imminent danger, gives in such a manner, that the subject is immediately made his to whom it is given.

And thirdly, Where a person, being in peril of death, gives something, yet not so that it should be presently his who received it, but in case only the giver die.

It appears upon consideration of the before mentioned definitions, that the third alone is the proper donation mortis causa; the other two being nothing more than pure irrevocable gifts inter vivos. This also is apparent from the definition of a donation mortis causâ, given by Justinian after the contest which prevailed on the subject had subsided:"Mortis causâ donatio est, quæ propter mortis fit suspicionem, cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui accepit, sin autem supervixisset is, qui donavit, reci(a) Swinb. part I. sect. 7. (b) Julianus, lib. 17. Digest. D

VOL. I.

peret; vel si eum donationis poenituisset, aut prior decesserit is, cui donatum sit. Hæ mortis causâ donationes ad exemplum legatorum redacta sunt per omnia: nam cum prudentibus ambiguum fuerat utrum donationis an legati instar eam obtinere oporteret, et utriusque causæ quædam habebat insignia et alii ad aliud genus eam retrahebant; a nobis constitutum est; ut per omnia fere legatis connumeretur, et sic procedat quemadmodum nostra constitutio eam formavit, et in summâ mortis causâ donatio est, cum magis sequis velit habere quàm eum, cui donat, magisque eum, cui donat, quam hæredem suum."(c)

With respect to the nature of a donatio mortis causà, this kind of amphibious gift so far resembles a legacy that it is ambulatory and incomplete during the donor's life; it is therefore revocable by him, (d) and subject to his debts upon a deficiency of assets. (e) It is also liable to the duties imposed upon legacies by the express provision of the stat. 36 Geo. 3. c. 52. § 7. But in the following particulars a donation mortis causâ differs from a legacy. It is not within the jurisdiction of the Ecclesiastical Court, nor is it to be possessed by the executor; so that a court of common law has prohibited his proceeding in the Ecclesiastical Court, to recover the subject from the donee.(f) Neither does the donation regularly fall within an administration, nor require any act by the executors to constitute a title in the donee.(g) The reason is, that the property being vested in the donee by delivery of the subject, liable only to be defeated by the donor's revocation, or recovery or escape from the peril of death; when none of those events happen, the title of the donee is derived from the donor during his life, and not by a testamentary act.

II. The circumstances required for the constitution of a donatio mortis causâ are, as before appears:

1. That the gift be made by the donor in peril of death, or during his last illness, and to take effect in case only the giver die.(h) If then the gift have no relation to the death of the donor, or having such a reference it be general, that is, to his decease at any time, he being at the period of the donation in no danger of death, nor afflicted with any disorder which proved fatal to him, such gift cannot be supported as a donation mortis causâ.

Thus in Tate v. Hilbert, (i) A. having subsequently to his will sent for M. to his house, and observed that he was worth more than he thought of, and that his fortune was too much for one person, and therefore he would give away more than he had disposed of by his will, desired J. to give him out of his desk several bonds and securities to the amount of 3000l. and upwards, which he cancelled. He then told M. he would give her 200l. and desired J. to give him a check out of the drawer of his desk; which he having done, A. immediately filled it up, and signed and gave it to M.; A. at the same

(d) 7 Taunt. 231.

(c) Justin. Inst. tit. 7. De Donationibus. (e) Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P. Will. 406. 2 Ves, sen. 434. (f) Thompson v. Hodgson, 2 Stra. 777.

(g) 2 Ves, sen. 439. 2 Ves. jun. 120. P. Will. 441.

(Justin. Inst. tit. 7. De Don. 4 Burns's Eccl. Law, 110. Pre. ch. 269. 3. P.

Will. 357. 4 Bro. C. C. 290. 3 Madd. 185.

(i) 2 Ves, jun. 111. 4 Bro. C. C. 286, S. C.

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