DONATION. A donation in prospect of death, :donatio mortiseausa, differs from a gift inter vivos, inasmuch as it is incomplete, and revocable during the donor's life, or ambulatory, as lawyers say. It differs from a legacy, on the other hand, in that it requires no probate, for it is not a testamentary act, the donee's title proceeding directly from the donor in his life-time. In Scotland, following the law of Rome, it is common to distinguish between donations those which do not take place in anticipa tion of death, marriage, or any other specific event—and gifts. Such donations are in reality gifts, but gifts which are not intended to be immediately delivered. It was with reference to this species of D. that the equitable arrangement called the beneji eium competentim was introduced, by which the donor was allowed to retain as much as was necessary for his own subsistence before fulfilling the obligation, if he was reduced to indigence. Another implied condition of a D. by the Roman law was, that when any one who had no children made a D. of the whole or the greater part of his estate, the D. became void if lie had children afterwards; the presumption being, that he would not have given his property away if he had anticipated that he was to become the father of a family. It is a general principle of law, that a D. is never presumed; but this rule suffers an exception, in the case of aliment given without an agreement to pay board, which is presumed to be gratuitous unless given by one who makes a livelihood of entertaining strangers. Minors, and persons incapable of contracting, are not presumed to have been alimented gratuitously, unless their relationship to their entertainer be such as to warrant the presumption. Where the minor is possessed of an adequate sepa
rate estate, even the father may claim the expense of maintaining him, and the rule applies with greater force to all more distant relatives. Donations between man and wife (inter virum et uxorem) were by the Roman law, and are by the law of Scotland, revocable by the donor at any time during his or her life, ne conjuges mutuo amore se spolient (lest the spouses should despoil themselves from mutual love). But mutual grants for substantial considerations between the spouses are not revocable, if there be any reasonable proportion between the two. Thus, where there has been no ante-nup tial contract of marriage, the husband may provide for the wife in the event of her sur vivance, and the provision will be effectual in so far as it is rational. It will be revoca ble only quoad excessum. Donations in the prospect of marriage (donationes prcpter nup tias) in the Roman law were given by the husband in security of the dowry or dos, which he was bound to pay back to the wife or her relatives on the dissolution of the marriage. When the dos was returned to the wife, the D. was returned to the husband. In the law of Scotland, when donations propter nuptial are spoken of, we are to understand provisions made by the husband not with a view to the dissolution of the marriage, but as an equivalent for the dowry, or, as it is called in Scotland, the tocker.