DONATIO MORTIS CAUSA
(bouvier) | DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect of death. When
a person in sickness, apprehending his dissolution near, delivers, or
causes to be delivered to another, the possession of any personal goods, to
keep as his own, in case of the donor's decease. 2 Bl. Com. 514 see Civ.
Code of Lou. art. 1455.
2. The civil law defines it to be a gift under apprehension 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' Rep. 109-117.
3. Donations mortis causa, are now reduced, as far as possible, to the
similitude of legacies. Inst. t. 7, De Donationibus. See 2 Ves. jr. 119;
Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P.
Wms. 406; 2 Ves. sen. 434; 3 Binn. 866.
4. With respect to the nature of a donatio mortis causa, this kind of
gift so far resembles a legacy, that it is ambulatory and incomplete during
the donor's life; it is, therefore, revocable by him; 7 Taunt. 231; 3 Binn.
366 and subject to his debts upon a deficiency of assets. 1 P. Wms. 405. But
in the following particulars it differs from a legacy: it does riot fall
within an administration, nor require any act in the executors to perfect a
title in the donee. Rop. Leg. 26.
5. The following circumstances are required to constitute a good
donatio mortis causa. 1st. That the thing given be personal property; .3
Binn. 370 a bond; 3 Binn. 370; 3 Madd. R. 184; bank notes; 2 Bro. C. C. 612;
and a check offered for payment during the life of the donor, will be so
considered. 4 Bro. C. C. 286.
6.-2d. That the gift be made by the donor in peril of death, and to
take effect only in case the giver die. 3 Binn. 370 4 Burn's Ecc. Law, 110.
7.-3d. That there be an actual delivery of the subject to, or for the
donee, in cases where such delivery can be made. 3 Binn. 370; 2 Ves. jr.
120. See 9 Ves. 1 , 7 Taunt. 224. But such delivery can be made to a third
person for the use of the donee. 3 Binn. 370:
8. It is an unsettled question whether such kind of gift appearing in
writing, without delivery of the subject, can be supported. 2 Ves. jr. 120.
By the Roman and civil law, a gift mortis causa might be made in writing.
Dig. lib. 39, t. 6, 1. 28 2 Ves. sen. 440 1 Ves. sen. 314.
9. In Louisiana, no disposition mortis causa, otherwise than by last
will and testament, is allowed. Civ. Code, art. 1563. See, in general, 1
Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474, 492; Civ. Code of Lo. B. 3, 2,
c. 1 and 6. Vin. Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to Ves.
jr. vol. 1, p. 143, 170; vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb. pt. 1, s.
7 1 Miles, 109. &c.
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