DONATIO MORTIS CAUSA (Lat. a gift in prospect of death). A gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes to be de livered, to another, the possession of any per sonal goods, to keep as his own in case of the donor's decease. 2 Blackstone, Comm. 514. See La. Civ. Code, art. 1455.
The civil law defines it to be a gift under appre hension of death: as, when any thing is given upon condition that if the donor dies the donee shall possess it absolutely, or return it if the donor should survive or should repent of having made the gift, or if the donee should die before the donor. 1 Miles, Penn. 109-117.
It differs from a legacy, inasmnch as it does not require proof in the court of probate, 2 Strange, 777; see 1 Bligh, N. a. 531 ; and no assent is re quired from the executor to perfect the donee's title. 2 Ves. Ch. 120 ; 1 Sim. & S. Ch. 245. It differs from a gift inter vivos because it is ambu latory and revocable during the donor's life, because it may be made to the wife of the donor, and because it is liable for his debts.
2. To constitute a good donatio mortis cause: first, the thing given must be per sonal property, 3 Binn. Penn. 370 ; a bond, 3 Binn. Penn. 370 ; 3 Madd. Ch. 184 ; bank notes, 23 Penn. St. 59 ; 2 Brown, Ch. 612 ; and a check offered for payment during the life of the donor will be so considered. 4 Brown, Ch. 286. Not so a promissory note of the sick man made in his last illness. 5 Barnew. & C. 501 ; 14 Pick. Mass. 204 ; 3 Barb. Ch. N. Y. 76 ; 2 Barb. N. Y. 94 ; 21 Vt. 238. See 24 Pick. 201 ; 33 N. H. 520 ;
18 Conn. 410; 11 Md. 424 ; 4 Cush. Mass. 87.
Second, the gift must be made by the donor in peril of death, and to take effect only in case the giver die. 3 Binn. Penn. 370; 4 Burn, Eccl. Law, 110.
Third, there must be an actual delivery of the subject to or for the donee, in cases where such delivery can be made. 3 Binn. Penn. 370; 2 Yes. Ch. 120 ; 2 Gill & J. Md. 268 ; 4 Graft. Va. 472 ; 31 Me. 422 ; 14 Barb. N. Y. 243 ; 7 Eng. L. & Eq. 134. See 9 Veit Ch. 1; 7 Taunt. 224. But such delivery can be made to a third person for the use of the donee. 3 Binn. Penn. 370.
It is an unsettled question whether such kind of gift appearing in writing, without delivery of the subject, can be supported. 2 Yes. Ch. 120 ; 3 Ired. Ch. No. C. 268. By the Roman and civil law, a gift mortis cause might be made in writing. Dig. lib. 39 t. 6, 1. 28 ; 2 Yes. Sen. Ch. 440 ; 1 id. 314.
3. A donatio causii mortis does not require the executor's assent, 2 Yes. Ch. 120 ; is re vocable by the donor during his life, 2 Bradf. Surr. N. Y. 339; 27 Me. 196 ; 3 Woodb. & M. C. C. 519 • 34 N. H. 439, by recovery, 3 Macn. & G. 664; Williams, Ex. 651, or re snmption of possession, 7 Taunt. 233 ; 2 Ves. Sen. Ch. 433 ; but not by a subsequent will, Prec. Chanc. 300 ; but may be satisfied by a subsequent legacy. 1 Yes. Sen. Ch. 314. And see 1 Ired. Ch. No. C. 130. It may be of any amount of property. 24 Vt. 591. It is liable for the testator's debts. 1 Phill. Ch. 406. See 18 Ala. N. s. 27.