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consent of the superiour, the feudatory often contrived to alienate by a donation by deed, made on the
dicatio, in the cases where it applied, were opened to all descriptions of legataries.
The donatio causá mortis is a title of the civil law, and of our of the donatio own, to which the attention of the diligent student should be di- causâ mortis. rected. In the text of the Institutes of Justinian, lib. 7, it is thus defined, or rather described: Mortis causâ donatio est, quæ propter mortis fit suspicionem: quum quis ita donat, ut si quid humanitus ei contigisset, haberet is, qui accipit: sin autem super vixisset is qui donavit, reciperet: vel si cum donationis pænituisset, aut prior decesserit is, cui donatum sit. He mortis causâ donationes ad exemplum legatorum redacta sunt per omnia. Nam cum precedentibus ambiguum fuerat, utrum donationis, an legati instar eam obtinere oporteret, et utriusque cause quædam habebat insignia, et alii ad aliud genus eam retrahebant, a nobis constitutum est, ut per omnia fere legatis connumeretur, et sic procedat, quem ad modum nostra constitutio eam formavit. Et in summâ mortis causâ donatio est, quum magis se quis welit habere, quam eum, cui donat, magisque eum, cui donat, quam hæredem suum: which description the Emperor illustrates by an example from the Odyssey, of the gift of Telemachus to Piræus (see also other examples of the antiquity of this species of gift in Taylor's Elements of the Civil Law, p. 536-7.)
According to Vinnius, in his Commentaries on this description of the donatio causâ mortis, it is not necessary to the constitution thereof, that the giver should be in actual and imminent danger of death, but it is enough if he be moved by the general consideration of mortality, sola cogitatione mortalitatis ex sorte humana, provided he expressly declares at the time, that he gives with such expectation and intention, otherwise the gift will be construed a pure and simple donatio inter vivos, and, consequently, will not be revocable. The same account of it is given by Swinburn, in the seventh section of his Treatise on Testaments and Wills. But in our courts of equity, the description of this species of donation has been confined within narrower bounds, being limited to those cases where a man lying in extremity, or being surprised with sickness, and having no
bed of death, mortis causa; which, being a gift to take effect in point of form, de presenti, though its
opportunity to make his will, lest he should die before he can make it, gives with his own hands, his goods to his friends about him. This, says Lord Cowper, if he dies, shall operate as a legacy, but if he recovers, then the property thereof reverts to him." See Gilb. Eq. Rep. 12, 13. Prec. in Chan. 269; and see 3 P. Wms. 358. 1 P. Wms. 405. 442. 1 Vez. jun. 547. The reader, however, will find in Still v. Chapman, 2 Bro. C. R. 612. a decision of Lord Thurlow on this subject, conformable to the explanation given in Vinnius and Swinburn, as above-mentioned."
It appears quite clear, according to all the authorities, that there must be a delivery of the thing by the giver in his life-time; and we observe, that Lord Cowper's expression, in the case of Hedges v. Hedges, 3 Prec. in Chan. 269, was "gives with his own hands." And, by Lord Hardwicke, in the case of Shargold v. Shargold, 2 Vez. 431, it was said, that the delivery must be actual, and that a symbolical delivery would not do; for which reason his Lordship held, that a delivery of receipts for S. S. Ann. made in the donor's last illness, and expressly in contemplation of death, was not a good donatie mortis causa; consequently, said his Lordship, this was merely legatory, and amounted to a nuncupative will, and was contrary to the statute of frauds; for if the necessity for delivery be taken from the thing, it remained merely nuncupative.
Upon the same ground, his Lordship held that it was impossible to make a donation mortis causa of stock or annuities, because in their nature they were not capable of actual delivery; and that, therefore, there could not be a gift causâ mortis of them, without a transfer, or something amounting to a transfer. And upon the same principle it was judged, in Miller v. Miller, 3 P. Wms. 356, that a note for 1001. being merely a chose in action, could not be the subject of a donatio causâ mortis.
But still, perhaps, if such a delivery be made as, in gifts inter vivos, would actually transfer the property in the thing, and give the possession in law, this will be a sufficient delivery to support the
real effect was postponed to the death of the grantor, might introduce this ambiguous kind of
act as a donatio mortis causá; for the nature of the thing must be re spected in all transfers. Thus in the case above cited, of the gift of the receipts for S. S. Ann. it seemed to be admitted by the Chancellor, that the transfer of the stock itself would have been effectual. And, perhaps, Lord Hardwicke designed in the case above cited to deny the efficacy of a symbolical delivery only where the thing was sus ceptible of a specific and manual delivery. The decision of Lawson v. Lawson, 1 P. Wms. 441, wherein a man upon his death-bed had drawn a bill upon a goldsmith, to pay 1001. to A.'s wife to buy mourning, is an instance of an effectual appointment in the nature of a donatio mortis causá; and see Tate v. Hilbert, 2 Vez. jun. 111, wherein that decision was approved by Lord Loughborough; his Lordship, at the same time observing, that the report in 2 P. Wms. was incorrect, as it appeared from the Register's book that the direction for mourning was indorsed upon the bill, in the donor's hand-writing. It will be seen also by the cases of Still v. Chapman, 2 Bro. C. R. 612, and Snellgrove v. Bailey, 3 Atk. 214, that both bank notes and even bands have been held to be capable of a sufficient delivery to constitute a good donatio causâ mortis.
The principal circumstances which distinguish the donatio mortis causa from the proper legacy, should be attended to. The points also of resemblance should be carefully marked. And principally, on this head, the ambulatory, imperfect, and revocable nature of both will occur as the most important article in which they agree; and on the other hand, the principal difference between them, seems to consist in the independence of the title of the donee of the gift causa mortis, on the act or consent of the representative. The same grounds of difference distinguished them in the civil law, donatio hac ab additione hareditatis, sicut legatum non pendet, sed sola morte con firmatur donantis. It should be observed also, that a donatio causâ mortis differs from a legacy in its exemption from the jurisdiction of the ecclesiastical courts, 2 Vez. 437; and again resembles it in its liability to debts upon a deficiency of assets; see Smith v, Cason, at
testamenti factio, with less novelty of principle. It seems, indeed, that the consent of the heir was, at first, and for a long continuance, thought necessary to these alienations by deed, in prospect of death; though, according to some writers, this practice was worn out before the statutes of Henry the Eighth. It seems, that soon after the statute of quia emptores had concurred with other causes, to render the testamentary power over land as well as moveables an object of universal desire, the difficulty arising
e Glanv. lib. 7. c. 1.
See Dal. on Feuds, c. 3. sect. 1, and Spellman's Remains; also Glanv. 1. 7. c. 1.
the end of Drury v. Smith, 1 P. Wms. 406. It is liable to the duties on legacies, imposed by the late acts of parliament; and with the Romans it fell under the restraints of the lex Falcidia as well as legacies. They are both liable, according to our laws, to be de feated by creditors.
Finally it may be observed, that the fact of the gift mortis causá is, in our law, to be proved in the same manner as other facts are to be proved; whereas, in the law of the empire, it was a point of resemblance between this gift and a legacy, that the former was necessary to be proved by five witnesses; which was the number necessary to the proof of a codicil, or any instrument of a testamentary operation which was not in strictness a testament according to its definition in the civil law.
If the gift be made and authenticated by a written instrument, without any actual delivery, but the deed or instrument conveys an interest to take effect absolutely in possession at the decease of the donor, this cannot be effectuated as a donatio causâ mortis, but there seems to be no reason why it should not operate as a testamentary disposition.
from the necessity of livery of seisin was eluded, by the practice of making feoffments to uses, over which, by the assistance of the courts of equity, wherein declarations and dispositions in respect to these uses were carried into effect, if made upon good consideration, a power of disposing by will might be exercised. And if these creations of uses were adopted from the civil law, we may conjecture that our ancestors were led more easily into the practice, by the notions they had previously learned to entertain of a distinction between the legal and beneficial property, from their reservations of the dominium directum, abstracted from the dominium utile, in their first feudal donations.
It is well known, however, that by the statute 27 H. 8. c. 10. this method of virtually disposing of land by will was disturbed. For by that statute, the use, as soon as it was created, became the legal estate, which was immediately carried to and executed in the cestui que use, so that wills lost their operation on the use raised directly upon a feoffment. It was still, however, in the power of individuals to elude the statute, and to keep the legal separate from the beneficial interest, by means of an use raised upon an use, or a second use, which the courts construed to be out of the reach and operation of the act, and thus transferred them to the jurisdiction of equity, under the denomination of trusts. In a very few years afterwards, however, an end was in a great measure put to these artifices,