PERIL OF DEATH. A term used to de note that condition of apprehension of death in which it is necessary that the donor should be, order to make a valid gift mortis causa.
In the cases on this subject there is found a great lack of precision of defini tion.. The result of an examination of the authorities is thus stated by Bates, Ch., in Robson v. Robson's Adm'r, 3 Del. Ch. 51, 63: "I have labbred to obtain from the authori ties a clear view of what is implied in these terms, peril of death, in other words, what is that precise condition of disability in con sideration of which it is a At the law gives effect to a gift causa mortis. Thus much is certain, that the gift, to be valid, in the first instance must be made under apprehension of death, as likely to result from some pres ent peril, usually that of sickness. It is further certain that to render the gift final ly effectual death must in fact ensue from the sickness or other peril under which it was made. But on another question I am unable to derive from the text books and de cisions any settled conclusion : That ques tion is, whether the apprehension of death must be an apprehension of death as pres ently imminent, the donor being, as it is said, in ecetremis; or, whether it is suf ficient for the validity of the gift if death be contemplated as the probable result of the sickness, a result likely or even certain to occur but after an indefinite interval, it may be of weeks or months; as in the case of chronic diseases generally." After ad verting to the difference of view to be found in the leading English cases, the chancellor continues : "The question is uncontrolled by any decisions known to me in our own courts; and as between the English cases I confess a strong preference for the narrower construction of these terms `peril of death,' the one which seems to have been at first held. It is consistent with the original
object of admitting these gifts into the Eng lish law ; it guards the policy of the statute of wills; and prevents frauds and uncer tainties of title." This view of the proper construction of the phrase "peril of death," was founded upon the theory that gifts mor tis causa were testamentary in their nature. But Gibson, C. J., In Nicholas v. Adams, 2 Whart. (Pa.) 17, held to the contrary, "that these gifts are not testamentary, but, as he describes them, are gifts executed in the first instance by delivery of the thing, though de feasible by reclamation, the contingency of survivorship or deliverance from the peril." By way of comment on the last cited case it has been suggested that, "that able judge (and this is said with great deference) seems to have been misled by a considera tion of gifts causa mortis under the civil law. Under that law these gifts formed quite an expanded system. They embraced all cases of gifts made in consideration of mortality, whether made in present danger or not." Robson v. Robson's Adm'r, 3 Del. Ch. 66.
See DONATIO MORTIS CAUSA.