2 Whart. 17 | Pa. | 1836
The opinion of the court was. delivered by
Perhaps the best definition of this species of donation in the books of the civil law, and 'the one which best corresponds to the best impressions the subject has received from the Anglo-Saxon jurists, who seem to be returning to the point from which they started—is, that which is found in Justinian's Institutes, Lib. 2, Tit. 7 : “ Mortis causa donatio est, quce propter mortis jit suspicionem; cum quis ita donat, ut si quis humanitus, haberet is qui accepit; sin autem supervixesset, is qui donavit reciperet, vet si eum donationis pcenituisset, aut prior decesseret is cut donatum sit.” Not a word in any part of this about sickness, first or last. Contested death-bed donations are of such occurrence in the courts, as to have superseded all others, and to have grown, in the apprehension of the judges, from a species to a genus; and hence the notion that they are referable exclusively to death-bed sickness. If made in sickness, it must necessarily be the last sickness; for the contingency happens adversely to the donee, where the donor is restored to health. But this notion seems to be yielding to more comprehensive principles. In his Treatise on Legacies, page 26, Mr. Roper, whose accuracy as a text-writer is creditable .to him, says, it is necessary that the gift be made in peril of death, or during the donor-’s last illness, and to take effect only in case he die. This would be critically correct, were it not redundant in one particular, and too narrow in another; redundant, because it is indifferent whether the peril of death be induced by sickness or any other cause. Thus,, the peril past, the gift of a soldier or a malefactor might be retracted, though made in perfect health, when going to execution or to battle. But his position is also too narrow in one particular; for a groundless apprehension of de§.th is necessarily as operative to make a gift conditional, as if the danger were real. No one would hesitate to say that the gift of a man in the predicament of Parolles', when sportively doomed by his friends, in the guise of ferocious enemies, might be recalled. I would, therefore, briefly define a donatio causa mortis to be a conditional gift, dependent on the contingency of expected death. There may, doubtless, be a conditional gift, when death is not expected; but in that case the condition would have to be expressed, and the contingency specified; in the donatio causa mortis, both are implied from the occasion. But it is certainly not requisite that the donor be in such extremity as is .
But if the gift were not a donatio causa mortis, what title would that give the executor or a legatee 1 Whether absolute -or conditional, it is good'against the donor’s representative by title subsequent. The condition is for the benefit of the donor; and here the evidence, written or verbal, shows a gift of some sort, which consequently must be taken to have been absolute in the first instance, if it were not conditional by the terms of the writing, or by implication from the nature of the occasion. It is an elementary definition of a gift, that it is a transfer of the title, of which, though the gift be in writing, delivery of the thing is the strongest and most essential evidence. It is a contract executed, which requires no consideration; and I am unable therefore to comprehend what is meant by a remark found in the books, that these donations cannot be supported by the general consideration of mortality. It never has been decided that any con-. sideration is necessary; nor could it be, without violating a common rudimental principle. “A true or proper gift,” says Sir William Blackstone, “ is always accompanied with delivery of possession, and takes effect immediately: as if A. gives B. £100, or a flock of
Judgment reversed.