DONA´TIO MORTIS CAUSA
DONA´TIO MORTIS CAUSA,
A
donatio mortis causa has been defined to be
“a gift which a man makes with reference to the event of his
death, and so makes that the right of the donee either commences with
the death of the donor, or is in some suspense until the death.”
(Cf. Festus, s.v. “mortis causa donatio cujus mors fuit causa.”
) It resembles, in some respects, a
[p. 1.690]donatio proper or gift; in others, it resembles a
legacy. It was necessary that the
donatio
should be accepted by the donee, and consequently there must be a conveyance
by
traditio or delivery, or at least a contract
by an offer which is assented to; whereas a
legatum only requires a unilateral act of a testator. A
donatio mortis causa differed from a testamentary
bequest in that it was regarded as a disposition of property made in the
donor's lifetime, and not a charge on his inheritance (
Dig. 39,
6,
28,
“praesens praesenti dat;” Theoph.
ad Inst. 2.7, 1,
ἀπὸ ζῶντος εἰς ζῶντα
γίνεται). On the other hand, it was not intended to have the
effect of depriving the donor of his right to his property in his lifetime,
but only to act in the event of his death to the detriment of his heir
(Inst. 2.7, 1: “Et in summa, mortis causa donatio est, cum magis se
quis velit habere quam eum, cui donatur, magisque eum, cui donat, quam
heredem suum” ). As the gift was not complete until the death of
the donor, and as it had the benefit of a particular person for its object,
it became void in the event of the donor surviving the donee. The donor
always had it in his power to revoke his gift, unless he had expressly
agreed not to do so. There were, according to Julianus (
Dig. 39,
6,
2),
three kinds of
donatio mortis causa :--1. When
a man under no apprehension of present danger, but moved solely by a general
consideration of mortality, makes a gift to another. 2. When a man, being in
immediate danger, makes a gift to another in such manner that the thing
immediately becomes the property of the donee. 3. When a man, moved by the
consideration of danger, gives a thing in such manner that it shall become
the property of the donee only in case the giver dies. It is to be noticed
that the gift was equally subject to revocation, whether the property passed
immediately to the donee, or was only to do so on the death of the donor.
When a gift was made on account of some imminent danger, it was
ipso jure revoked by the donor's escape from the
danger. In course of time most of the rules relating to legacies were made
applicable to donations. No person could make or take under a
donatio mortis causa who was not capable of making
or acquiring a testamentary bequest. Property subject to such a gift was
liable for the debts of a deceased person as if it were part of his
inheritance. The heir could deduct his Falcidian fourth from it. A
donatio mortis causa could not be used as a means of
defeating the claims of those who could not have been disinherited by the
deceased. In these and other respects we find donations assimilated to
legacies in the legislation of Justinian. Still, they differed in some
respects from legacies: for instance, such a donation could take effect,
though there was no person to take the inheritance; and if it did not exceed
five hundred solidi, it could be made in an informal way, though otherwise
the forms of a codicil were required. It could only be constituted by
agreement. The English law of
donationes mortis
causa is first stated by Bracton (2.100.26) in
the very words of the Digest (
39,
6,
2, &c.); and the present law
is expounded by Lord Hardwicke (Ward v. Turner, 2 Ves. 431); but what he
there states to be the English law is not exactly the law as stated by
Bracton. Tradition or delivery is considered one essential of such a gift,
and the death of the donor in the life of the donee is another essential.
The gift is not an absolute gift, but a gift made in contemplation of death,
and it is revocable. It does not prevail against the creditors of the
deceased, and by statute it has been made subject to legacy duty. (
Dig. 39,
6; Cod. 8.57; Inst.
Just. 2.7.1; W. Müller,
Ueber die Natur der Schenkung auf Todesfall (1827);
Hasse,
Rhein. Mus. 2.300, 3.1 (1828); V.
Schröter,
Zeitschr. für Civilrecht und
Process, 2.4 (1829); Wiederhold, ib. 15.4 (1841); Savigny,
System, 4. § § 170-174; Vangerow,
Pandekten, 2. § § 561-563; Windscheid,
Pandekten, 2.369, 3. § § 675, 676.) [G.
L.
[
E.A.W]
