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A gift in prospect of death. When a person in sickness, apprehending his dissolution near, delivers, or causes to be delivered to another, the possession of any personal goods to keep as his own, in case of the donor's decease.
The civil law defines it to be a gift under apprehension of death; e.g., when any thing is given upon condition that if the donor dies, the donee shall possess it absolutely, or return it if the donor should survive or should repent of having made the gift, or if the donee should die before the donor.
Donations mortis causa are now reduced, as far as possible, to the similitude of legacies.
With respect to the nature of a donatio mortis causa, this kind of gift resembles a legacy in that it is ambulatory and incomplete during the donor's life; therefore, it is revocable by him and subject to his debts upon a deficiency of assets. But it differs from a legacy in that it does not fall within an administration, nor require any act in the executors to perfect a title in the donee.
The following circumstances are required to constitute a good donatio mortis causa:
- 1. That the thing given be personal property; a bond, bank notes, and a check offered for payment during the life of the donor, will be so considered.
- 2. That the gift be made by the donor in peril of death, and to take effect only in case the giver die.
- 3. That there be an actual delivery of the subject to or for the donee, in cases where such delivery can be made. But such delivery can be made to a third person for the use of the donee.
It is an unsettled question whether such kind of gift appearing in writing, without delivery of the subject, can be supported. By the Roman and civil law, a gift mortis causa might be made in writing.