136 P. 30 | Or. | 1913
Opinion by
"A donation mortis causa is that which is made to meet the case of death, as when anything is given upon condition that, if any final accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or.if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor should receive back the thing given”: Just. Inst., lib. 2, tit. 7, quoted in 20 Cyc., supra.
From these definitions it appears that, to constitute a valid gift causa mortis, three things must concur: (1) The gift must be made with a view to the donor’s death; (2) it must be conditioned to take effect only on the owner’s death or by reason of an existing illness; (3) there must be an actual delivery of the possession of the thing given to the donee. The only difference between a gift causa mortis and a gift inter vivos is that in the first the donor retains the power of revocation, and the death of the donee occurring before that of the donor works revocation, while in the latter the whole title passes irrevocably with delivery of possession.
Now let us apply these elementary propositions to the case at bar. The words of the gift were absolute: “Whatever happens I want you to have these anyway. These are yours to use for your own use.” The delivery was complete, and Manser’s declining to indorse them was not put upon the ground that he wished to retain any further dominion over them, but because such indorsement was unnecessary and because he
It” is impractical to discuss at length all the authorities upon this branch of the subject. In our judgment the true criteria by which to judge the validity of a gift causa mortis is to be found in the case of Leyson v. Davis, 17 Mont. 220 (42 Pac. 775, 31 L. R. A. 429), which is a most exhaustive and learned review of the whole subject, and in the case of Johnson v. Colley, 101 Va. 414 (99 Am. St. Rep. 884, 44 S. E. 721.)
The decree of the Circuit Court is affirmed.
Affirmed.