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Donatio Mortis Causa

death, gift, law, donor and danger

DONA'TIO MORTIS CAUSA, a gift made in prospect of death. The doctrine is derived from the Roman law, and a donation of this kind is defined in the Institutes (ii., tit. 7) as "a gift which is made under an apprehension of death, as when a thing is given upon condition that, if the donor die, the donee shall have it, but that the thing given shall be returned if the donor shall survive the danger which he apprehends, or shall repent he has made the gift; or if the donee shall die before the donor." The defini tion of a " donatio mortis causa" in Fleta (ii. 57, De Testantentis) agrees almost word for word with that of Ulpian (Dig. 39, fit. 6, s. 2). Fleta's definition is, per haps, taken from Bracton (ii. 26), who has adopted the words of Ulpian. In the English law it is necessary to the validity of this gift that it be made by the donor with relation to his dying by the illness which affects him at the time of the gift, but it takes effect only in case he die of that illness. There must be a delivery of the thing itself to the donee ; but in cases where actual transfer is impossible, as, for instance, goods of bulk deposited in a warehouse, the delivery of the key of the warehouse is effectual. This prin ciple is expounded by Lord Hardwicke, in the case of Ward v. Turner (2 Vey. 431). A donatio mortis cause), partakes of the nature of a legacy so far as to be liable to the debts of the donor, and, by 36 Geo. III. c. 53, §. 7, to the legacy duty ; but as it takes effect from the delivery, and not by a testamentary act, it is not within the jurisdiction of the ec clesiastical courts, and neither probate or administration is necessary, nor the assent of the executors, as in the case of a legacy.

The English law of Donations, " mortis muss," is explained in Roper On Legacies, vol. i.; and in the judgment of Lord Hardwicke already referred to. See also Edwards v. Jones, 1 M. & C. 226 ; Duf field o. Elwes, 1 S. & S. 239.

Ulpian (Dig. 39, tit. 6,s.2) quotes Julian as laying down three forms of " donatio mortis causa :" first, when a man under no present danger of death, but solely influ enced by a consideration of his mortality, makes a second, when a man, moved by imminent danger of death, makes a gift, so that the thing becomes forthwith the property of the receiver ; third, when a man, moved by danger, gives not so that the thing shall forthwith become the property of the receiver, but only in case of the death of the giver. But the third was the only proper kind of "donatio mortis causa." Any thing might be the subject of a "donatio mortis causa," as a piece of land, an agreement that a sum of money should be paid to the donee after the death of the giver, or a slave. It fol lows from the nature of the things that might be the subjects of a " donatio mortis causa," that the Roman law did not re quire delivery, as the English law does, a circumstance which restrains the power of making a " donatio mortis causa" by the English law. It was long disputed whether " donationes mortis causa" should be considered as legacies, or as other gifts; but a constitution of Justinian (Cod. viii. tit. 57, s. 4) assimilated them in all respects to legacies, and declared that they might be either made orally or in writing, but it required four witnesses.