DONATIO MORTIS CAUSA (Lat. a gift in prospect of death). A gift made by a person in sickness, or other immediate peril, who, apprehending his death as near, delivers, or causes to be delivered, to another, the pos session of any personal goods, to keep as his own in case of donor's decease. 2 Bla. Com. 514 ; Gourley v. Linsenbigler, 51 Pa. 345.
The civil law defines it to be a gift under appre hension of death: as, when anything Is given upon condition that if the donor die the donee shall pos sess -it absolutely, or return it if the donor should survive or souid repent of having made the gift, or if the clones should die before the donor. Adams v. Nicholas, 1 Miles (Pa.) 109.
It differs from a legacy, inasmuch as it does not require proof in the court of probate ; 2 Stra. 777; see 1 Bligh, N. S. 531; and no assent Is required from the executor to perfect the donee's title ; 2 Ves. 120 ; 1 S. & S. 245. It differs from a gift inter vlvos because it is ambulatory and revocable dur ing the donor's life because it may he made to the wife of the donor, and because It is liable for his debts, and it requires actual delivery ; Poullain v. Poudain, 79 Ga. 11, 4 S. E. 81. This division of gifts Is taken from the Roman law, as are also the rules by which they are governed. 2 Kent 439. See also as to these distinctions Brett, L. Cas. Mod. Eq. 33.
The donor need not be in eotremis; Larra bee v. Hascall, 88 Me. 511, 34 Atl. 408, 51 Am. St. Rep. 440. It has been considered es sential to the validity of the gift that the donor should die of the very malady from which death was apprehended at the time of making the gift ; Williams v. Chamber lain, 165 Ill. 210, 46 N. E. 250 ; Conser v. Snowden, 54 Md. 175,, 39 Am. Rep. 368 ; but the better opinion is that while it is not a requisite that he should die from the very disease or peril from which he apprehended death, yet there must be no intervening re covery, and it is essential that his death en sue as a result of some disease or peril ex isting or impending at the time the gift was made; Peck v. Scofield, 186 Mass. 108, 71 N. E. 109; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758. A soldier ordered to the seat of war is not, in such imminent peril as will justify his making a gift causa mortis; Linsenbigler v. Gourley, 56 Pa. 166, 94 Am. Dec. 51; but such gifts have been held valid where the donor never returned alive, but fell in battle or died in camp ; Virgin v. Gaither, 42 Ill. 39; Gass v. Simpson, 4 Coldw. (Tenn.) 288. A gift made in contemplation of suicide is utterly void as against public policy ; Dur yea v. Harvey, 183 Mass. 429, 67 N. E. 351.
A delivery of more than was intended to be given cannot overrule the donor's inten tion, and the donee can take only as much as was intended to be given; Crippen v. Adams, 132 Mich. 31, 92 N. W. 496. The delivery need not be made to the donee personally, but may be made to another as his agent or trustee, and that without his knowledge at the time of making the gift ; Sheedy v. Roach, 124 Mass. 472, 26 Am. Rep. 680 ; Williams v. Guile, 117 N. Y. 343, 22 N. E. 1071, 6 L. R. A. 366. Where actual manual tradition cannot be made, either from their nature or their situation at the time, in such cases the delivery may be constructive, although in all cases it must be as nearly perfect and com plete as the nature of the property and at tendant circumstances and conditions will Permit ; Newman v. Bost, 122 N. C. 524, 29
S. E. 848. Technically, there must be an acceptance by the donee as well as a deliv ery by the donor ; Yancy v. Field, 85 Va. 756, 8 S. E. 721; Ammon v. Martin, 59 Ark. 191, 26 S. W. 826; but this is a matter of slight practical importance, for where the gift is beneficial to the donee an acceptance will be presumed ; Devol v. Dye, 123 Ind. 321, 24 N. E. 246, 7 L. R. A. 439 ; Blazo v. Coch rane, 71 N. H. 585, 53 Atl. 1026.
To constitute a good donatio mortis causa: first, the thing given must be personal prop erty ; Wells v. Tucker, 3 Binn. (Pa.) 370; a bond ; Wells v. Tucker, 3 Binn. (Pa.) 370 ; 2 Ves. Sep. 431; 3 Madd. 184 ; bank notes ; Michener v. Dale, 23 Pa. 59 ; 2 Bro. C. C. 612; White v. Wager, 32 Barb. (N. Y.) 250 ; 3 P. Wms. 356 ; certificates of stock ; Walsh v. Sexton, 55 Barb. (N. Y.) 251; a policy of life insurance ; 1 B. & S. 109 ; Gourley v. Linsenbigler, 51 Pa. 345 ; and a check of fered for payment during the life of the donor ; 4 Bro. C. C. 286 ; will be so consid ered ; but a check not so presented, which had not passed into the hands of a bona fide holder, is revoked by the death of the de cedent ; L. R. 6 Eq. 198 ; Burke v. Bishop, 27 La. Ann. 465, 21 Am. Rep. 567 ; Simmons v. Society, 31 Ohio St. 457, 27 Am. Rep. 521; Matter of Smither, 30 Hun (N. Y.) 632 ; Beals v. Crowley, 59 Cal. 665; aliter, as to a check given abroad ; L. R. 5 Ch. Div. 730. See Taylor's Estate, 154 Pa. 183, 25 Atl. 1061, 18 L. R. A. 855. A check to a wife express ing that it was to enable her to buy mourning, was held under peculiar circumstances a val id donatio mortis causa; 1 P. Wms. 441. A note not negotiable, or if negotiable, not in dorsed, but delivered, passes by such a dona tion ; 1 Dan. Neg. Inst. §' 24 ; Tiedm. Cora. l'ap. 252 ; Chase v. Redding, 13 Gray (Mass.) 418 ; but in Bradley v. Hunt, 5 Gill & J. (Md.) 54, 23 Am. Dec. 597, this is limited to bank notes and notes payable to bearer. A certificate of deposit which is delivered to a person for the use of a third party, though not indorsed, is a valid gift ; Conner v. Root, 11 Colo. 183, 17 Pac. 773 ; Reed v. Barnum, 36 Ill. App. 525; contra, Dunn v. Bank, 109 Mo. 90, 18 S. W. 1139 ; see Daniel v. Smith, 64 Cal. 346, 30 Pee, 575. A check cannot be the subject of a donatio mortis causa, unless, paid in the donor's lifetime ; death revokes the bank's authority to pay ; 4 Bro. C. C. 286 ; Burke v. Bishop, 27 La. Ann. 465; 21 Am. Rep. 567; Second, Nat. Bank of Detroit v. Williams, 13 Mich. 282. But in such case a check has been considered as of a testamen tary character ; 3 Curt. Eccl. 650; and see 1 P. Wms. 441 (supra). Where a man made a gift of his check to his son to be collected after his death, and the bank, knowing the• drawer was dead, paid the check, it must pay the amount of the check to the personal representatives; Pullen v. Bank, 138 Cal. 169, 66 Pac, 740, 71 Pac. 83, 94 Am. St. Rep. 19. A check or note or other negotiable in strument of a person other than the donor may be the subject of such gift ; L. R. 15 Ch. D. 651; L. R. 6 Eq. 198 ; Burke v. Bish op, 27 La. Ann. 465, 21 Am. Rep. 567. Though unaccepted by the bank, a check for the entire amount of the drawer's balance delivered to a person as a gift of the mon ey, operates as an assignment of the fund and is valid as a gift mortis causa; Varley v. Sims, 100 Minn. 331, 111 N. W. 269, 8 L.