1911 Encyclopædia Britannica/Donatio Mortis Causa

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8136551911 Encyclopædia Britannica, Volume 8 — Donatio Mortis Causa

DONATIO MORTIS CAUSA (grant in case of death), in law, a gift of personal property made in contemplation of death and intended either expressly or impliedly to take complete effect only if the donor dies of the illness affecting him at the time of the gift. The conception as well as the name is borrowed from Roman law, and the definition given by Justinian (Inst. ii. 7. 1) applies equally to a donatio mortis causa in Roman and English law. A distinction, however, has arisen between the English and civil codes; by English law delivery either actual or (when from the nature of the thing actual delivery is impossible) constructive is essential, and this delivery must pass not only the possession but the dominion of the thing given; by the civil law, in some cases at least, delivery of possession was not essential (see the judgment of Lord Chancellor Hardwicke in Ward v. Turner, 1751, 2 Ves. sen. 431, where the whole question is exhaustively discussed). A donatio mortis causa stands halfway between a gift inter vivos and a legacy, and has some of the characteristics of each form of disposition. It resembles a legacy in that (1) it is revocable during the donor’s life, (2) it is subject to legacy and estate duty, and (3) it is liable to satisfy debts of the testator in default of other assets. On the other hand, it resembles a gift inter vivos in that it takes effect from delivery; therefore the consent of the executor is not necessary. Anything may be the subject of a donatio mortis causa, the absolute property in which can be made to pass by delivery after the donor’s death either in law or equity; this will cover bankers’ deposit notes, bills of exchange, and notes and cheques of a third person, but not promissory notes and cheques of the donor in favour of the donee, for the donor’s signature is merely an authority for his banker to pay, which is revoked by his death.