1Marcianus, Institutes, Book IX. A donation mortis causa is one where the party wishes to retain the property himself instead of transferring it to him to whom he donates it, but prefers that the donee shall have it rather than his heir. 1Telemachus gives a donation of this kind to Piræus, in Homer.

2Ulpianus, On Sabinus, Book XXXII. Julianus, in the Seventeenth Book of the Digest, says that there were three kinds of donations mortis causa. The first, where the donor, who is under no apprehension of impending death, makes a donation solely with a view to his decease. He says another kind of donation mortis causa is where anyone is disturbed by the immediate prospect of death and makes a donation, so that the article immediately becomes the property of the person who receives it. He says that the third kind of donation is where a man, apprehensive of death, does not give the property so that its ownership will immediately vest in the person entitled to it, but provides that it shall belong to him after the death of the donor.

3Paulus, On Sabinus, Book VII. It is lawful to make a donation mortis causa not only when a person is induced to do so by failing health, but also because of the danger of impending death, either at the hands of enemies, or robbers; or on account of the cruelty or hatred of some powerful man, or when anyone about to undertake a sea voyage;

4Gaius, Diurnal or Golden Matters. Or travel through dangerous places,

5Ulpianus, Institutes, Book II. Or where one is exhausted by old age:

6Paulus, On Sabinus, Book VII. For all these conditions indicate impending danger.

7Ulpianus, On Sabinus, Book XXXII. If anyone convicted of a capital crime should make a donation mortis causa, the donation will be annulled as imperfect; although other donations made by him previous to the suspicion that he was liable to such a penalty may be valid.

8The Same, On Sabinus, Book VII. Where anyone, having received a sum of money, rejects an estate, whether it passes to a substitute, or whether an heir succeeds to it on the ground of intestacy, he is considered to have obtained the money mortis causa; for whatever is acquired on account of the death of anyone is obtained mortis causa. Julianus adopts this opinion, and we make use of it. For where anything is received by a slave, who is to be free under a certain condition, for the purpose of complying with the condition; or anything is obtained by a legatee mortis causa; or where a father gives anything on account of the death of his son, or of a relative; Julianus states that it is acquired mortis causa. 1Hence, he says that a donation can be made in such a way that it will revert to the donor, if the sick person should recover.

9Paulus, On Sabinus, Book III. Everyone is permitted to acquire a donation mortis causa who has the right to receive a legacy.

10Ulpianus, On Sabinus, Book XXIV. It is settled that he to whom a donation mortis causa is made can be substituted in such a way that he can promise the property to someone else, if the latter cannot himself acquire it, or cannot do so under some other condition.

11The Same, On Sabinus, Book XIII. A father can legally make a donation on account of the death of his son, even during the existence of his son’s marriage.

12The Same, On Sabinus, Book XLIV. Where a woman fraudulently asks to be placed in possession of an estate in the name of her unborn child, and receives money on this account, in order to favor a substitute, or to exclude the appointed heir, for some reason or other, Julianus frequently stated that she obtained this money mortis causa.

13Julianus, Digest, Book XVII. If I give property belonging to another as a donation mortis causa, and it should afterwards be acquired by usucaption, the true owner cannot recover it, but I can do so, if I regain my health. 1Marcellus says that questions of fact may arise with reference to donations mortis causa, for the donation may be made in such a way that if the donor should die of his illness, it shall not be returned; or that it shall be returned if the donor, having changed his mind, desires it to be restored to him, even if he should die of the same illness. A donation of this kind can also be made subject to the provision that it shall not be returned unless the person who is to receive it dies first. A donation mortis causa can be made in such a way that the property shall not be returned in any event; that is to say, not even if the donor should recover his health.

14Julianus, Digest, Book XVIII. Where a tract of land is donated mortis causa, and necessary and useful expenses are incurred with reference to it, parties bringing an action to recover the land can be barred by an exception on the ground of fraud, unless they reimburse the donee for the said expenses.

15The Same, Digest, Book XXVII. Marcellus says that where sons under paternal control, who are serving in the army, have obtained the unrestricted right to dispose of their property by will to anyone whom they may select, it may be held that they are also released from the observance of the ordinary formalities required in the case of donations mortis causa. Paulus says, with reference to this, that it is established by the Imperial Constitutions that donations mortis causa can be revoked in the same way as legacies.

16Julianus, Digest, Book XXIX. A donation mortis causa can be revoked even while it is yet uncertain whether or not the donor can recover his health or not.

17The Same, Digest, Book XLVII. Even if a debtor may not have had the intention to defraud his creditors, his donee can be deprived of property given to him mortis causa; for, as legacies bequeathed by the will of a person who is insolvent are absolutely void, it can be held that donations mortis causa made under such circumstances should also be annulled because they resemble legacies.

18The Same, Digest, Book LX. We obtain a donation mortis causa not only when anyone gives it to us on account of his death, but also where he makes the donation dependent on the death of another, as, for instance, if anyone should give to Mævius a donation in case of the death of his son, or his brother, under the condition that if either of them should recover from his illness, the property shall be restored to him, but if either of them should die, it will belong to Mævius. 1If you should make a donation mortis causa to me, by directing your debtor to pay my creditor, I shall, in any event, be held to be entitled to as much money as will release me from liability to my creditor. If, however, I should make a stipulation with your debtor, I will be considered to be entitled to only as much as the debtor is able to pay. For even if you, being the creditor, should recover your health, and the donor should do the same, you can only bring an action for recovery, or one in factum for an amount equal to the obligation of the debtor. 2Titia, desiring to donate to her debtors Septitius and Mævius their promissory notes, gave them to Ageria, and asked her to give them to the said debtors, if she, Titia, should die, but if she should be restored to health, to return them to her. She, having died, Mavia, the daughter of Titia, became her heir; but Ageria gave the notes to the above-mentioned Septitius and Mævius, as she had been requested to do. The question arises if Mævia, the heir, brought an action to recover the sum due on the above-mentioned notes, or one to recover the notes themselves, whether she could be barred by an exception. The answer was that Mævia could be barred by an exception based on the execution of the contract, or by one on the ground of fraud. 3Where anyone has received a slave by way of satisfaction for damages caused by him, or for some other liability, as a donation mortis causa, he is understood to have only acquired as much as the slave can be sold for. The same rule should be observed with reference to a tract of land which is encumbered, in order to ascertain the value of what is donated.

19The Same, Digest, Book LXXX. Where property is donated mortis causa to a son under paternal control, and the donor is restored to health, he can bring an action De peculio against his father. But if the head of the household receives the donation mortis causa, and then gives himself in adoption, the property given can be recovered by the donor. This case is not similar to that where he who receives a donation mortis causa gives it to another, for the donor cannot recover from him the property itself, but only its value.

20The Same, On Urseius Ferox, Book I. A tract of land is devised to a person who cannot legally acquire but a portion of it, under the condition that he will pay ten aurei to the heir. He is not required to pay the entire sum in order to obtain his share of the land, but only an amount in proportion to the legacy which he is entitled to receive.

21The Same, On Urseius Ferox, Book II. Several authorities, and among them Priscus, have held that a person who receives a sum of money to induce him to accept an estate obtains the money mortis causa.

22Africanus, Questions, Book I. In the case of a donation mortis causa, where the capacity of anyone to receive the property is the subject of investigation, the time of death, and not that of the donation should be considered.

23The Same, Questions, Book II. Where a donation mortis causa is made to a son under paternal control, and he dies during the lifetime of the donor, but his father survives, the question arises, what is the rule of law in a case of this kind? The answer was that, by the death of the son, an action to recover the property will lie; provided the donor had the intention of giving it to the son rather than to the father. Otherwise, if the agency of the son was only employed for the benefit of his father, then the death of the father must be taken into consideration. The same rule will apply where a question arises with reference to the person of a slave.

24The Same, Questions, Book IX. When a release is given to a debtor as a donation mortis causa, and the donor recovers his health, he can collect the debt, even if the debtor has been released by lapse of time; for, by the release, the creditor has renounced his claim under the prior obligation, and it has been merged in the right to recover the donation.

25Marcianus, Institutes, Book IX. A donation mortis causa can be made whether the party executes a will or not. 1Ad Dig. 39,6,25,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 676, Note 17.A son under paternal control, who cannot make a will even with the consent of his father, can, nevertheless, make a donation mortis causa, if his father permits him to do so.

26Ad Dig. 39,6,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 429, Note 2.The Same, Rules, Book II. Where two persons make reciprocal donations, mortis causa, of the same property, and both of them die, the heir of neither can recover the property, for the reason that neither one survives the other. The same rule of law will apply, if a husband and wife should make reciprocal donations.

27The Same, Rules, Book V. Where a donation mortis causa is made in such a way that it cannot be revoked under any circumstances, it is rather a donation inter vivos than one mortis causa. Hence it should be considered as any other donation inter vivos, and will be void as between husband and wife; and the Falcidian Law will not apply, as it does in the case of donations mortis causa.

28Marcellus, Opinions. A nephew, desiring to make a donation mortis causa to his uncle of the amount which he owed him, made the following statement in writing, “I wish any registers or notes of mine, wherever they may be found, to be void, and that my uncle shall not be obliged to pay them.” I ask, if the heirs bring suit to recover the money from the uncle of the deceased, whether they can be barred by an exception on the ground of fraud. Marcellus answered that they can be, for the heirs most assuredly are making a demand upon the uncle contrary to the wishes of the deceased.

29Ulpianus, On the Edict, Book XVII. Where property is donated mortis causa, and the donor recovers his health, let us see whether he will be entitled to an action in rem. If anyone should make a donation under the condition that, in case of death, the property should belong to the person to whom it was given, there is no doub that the donor can recover it, and if he should die, he to whom it was given can do so. If the condition was that the donee should immediately have the property as his own, but should return it if the donor recovered his health, or returned after a battle or a long journey, it can be maintained that the donor will be entitled to an action in rem, if any of these events take place; but, in the meantime, the property will belong to the person to whom it was donated. If, however, he to whom the donation was made, should predecease the donor, it may be held that the latter will be entitled to an action in rem.

30Ad Dig. 39,6,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 174, Note 9.The Same, On the Edict, Book XXI. Anyone who makes a donation mortis causa, and afterwards changes his mind, will be entitled to either an action to recover the property or to an equitable action.

31Gaius, On the Provincial Edict, Book VIII. Property is acquired mortis causa when an occasion arises for obtaining it on account of the death of anyone, except in such instances as have a particular designation; for it is certain that anyone who acquires property by hereditary right, or as a legatee or the beneficiary of a trust acquires it, on account of the death of another, but for the reason that these methods of acquiring property are designated by specific names, they are distinguished from the one in question. 1It is held by Julianus that, although the debtor who has been released may not be solvent, the donation will still be considered to have been made mortis causa. 2Property can also be acquired without a donation; as, for instance, where a slave or a legatee pays a sum of money for the purpose of complying with some condition, whether the person who receives it is a stranger, or an heir. The case is similar where anyone receives money to accept or reject an estate, or to refuse a legacy which has been bequeathed to him. Even a dowry which has been stipulated for and will belong to the husband if his wife should die, is evidently acquired mortis causa, and dowries of this kind are designated as returnable. Again, anything which is donated mortis causa, or is given while in imminent danger of death, or with the expectation of mortality, for the reason that we understand that we will die sooner or later, is included in this category. 3If, with the intention of making a donation mortis causa, you should direct your debtor to make a new promise to my creditor to pay ten aurei, the question arises, what would be the rule of law if the debtor should not prove solvent? Julianus says that if I stipulate in this way, I shall be held to have obtained as much money as your debtor is able to pay; for he says if the donor recovers his health, he will only be entitled to obtain the new obligation of the debtor. If, however, my creditor should enter into the stipulation, I will be held to have received only as much money as I would have the right to be released from payment of to my creditor. 4When a debtor, who is poor, is released from his indebtedness by way of a donation, he is considered to have obtained all the money from the payment of which he was released.

32Ulpianus, On the Edict, Book LXXVI. A donation made mortis causa is not considered to be perfect until after the death of the donor.

33Paulus, On Plautius, Book IV. Where anyone acquires by usucaption property belonging to another which was donated mortis causa, he is not considered to have obtained it from the party to whom the property belongs, but from him who gave him the opportunity for usucaption.

34Marcellus, Digest, Book XXVIII. A donation mortis causa can also be made, even if it can be proved that the donee stipulated for payment every year, as long as he lived; that is to say, that collection should begin after the death of the promisor.

35Paulus, On the Lex Julia et Papia, Book VI. The Senate decreed that where donations mortis causa were made to those whom the law forbade to receive them, they are in the same position as persons to whom legacies are bequeathed by will, and who are not permitted by law to accept them. A great variety of questions have arisen under this Decree of the Senate, a few of which we shall mention. 1The word “donation” is derived from donum, meaning “presented with a gift.” It is taken from the Greek, for the Greeks say dwron kai dwreisvai, that is to say, “a gift and to give.” 2A donation mortis causa, however, differs greatly from a genuine and absolute gift, which is made in such a way that it can, under no circumstances, be revoked; and where he who makes it would rather that the donee should have the property than he himself. On the other hand, he who makes a donation mortis causa thinks of himself and, through his love of life, prefers to keep the property, rather than to give it away. This is the reason why it is commonly said that the donor would rather have the property than allow him to whom he gives it to have it, but that he would rather that he should have it, than that it should pass to his heir. 3Therefore, he who makes a donation mortis causa, so far as his thoughts of himself are concerned, concludes a business transaction; that is to say, he imposes the condition that the property shall be returned to him if he is restored to health. The followers of Cassius entertained no doubt that the property could be recovered, as in the case of an unfinished transaction; for the reason that, where anything is given, it is done either that you may perform some act, or that I may perform one, or that Lucius Titius may do so, or in case some event takes place; and in all these instances, the property may be recovered by an action. 4A donation mortis causa is made in several different ways. Sometimes it is made by a man who is well and has no anticipation of immediate death, who enjoys excellent health, but who reflects that man is liable to die. Sometimes it is made through the fear of death, either on account of present or future danger. For the danger of death may be apprehended on land and sea, in peace and in war, at home as well as in the army. A donation may also be made under the condition that if the donor should die of his illness, the property shall not, under any circumstances, be returned; or that it shall be returned if he should change his mind, and desire it to be restored to him, even before he died of the same illness. A donation can also be made under the condition that it shall not be returned unless the person entitled to it dies before the donor. A donation mortis causa can also be made in such a way that it cannot be recovered in any event, that is, not even if the donor should recover his health. 5If anyone should form a partnership with another for the purpose of making a donation mortis causa, it must be said that the partnership is void. 6When a creditor wishes to make a donation mortis causa to two of his debtors, of what they owe him, and releases one of them from liability, and regains his health, he can sue either one of them that he may select. 7He who stipulates for the payment of a sum of money annually as a donation mortis causa does not resemble the person to whom a legacy, payable annually, has been bequeathed; for although there are many legacies, still there is only one stipulation, and the status of him to whom the promise was made must always be considered.

36Ulpianus, On the Lex Julia et Papia, Book VIII. Where anything is given for the purpose of complying with a condition, although it may not be derived from the estate of the deceased, still, he whom the law says shall only receive a certain amount cannot receive a larger sum than that fixed by law. It is certain that where a sum of money is paid by a slave for the purpose of complying with the condition, the amount will be regulated in accordance with that which the legatee is legally entitled to receive, provided the slave had that much in his peculium at the time of his death. If, however, the sum was acquired after his death, or if another person gave it for him, as it did form part of the property which the testator had when he died, the case will be the same as where charges are imposed on legatees.

37The Same, On the Lex Julia et Papia, Book XV. Generally speaking, it must be remembered that donations mortis causa are comparable to legacies. Therefore, any rule of law which applies to legacies must be understood also to apply to donations mortis causa. 1Julianus says that if anyone should during the lifetime of the donor sell a slave given to him as a donation mortis causa, the latter will be entitled to a personal action to recover the price, if he should regain his health, and choose to do so; otherwise, the donee will be compelled to return the slave himself.

38Marcellus, On the Lex Julia et Papia, Book I. The following difference exists between a donation mortis causa and other ways by which anyone acquires property by reason of death. A donation mortis causa is made when both parties are present, and anything not included in this kind of a donation, it is understood, may be obtained on account of death. For when a testator, by his will, directs his slave Pamphilus to be free under the condition that he pays me ten aurei, he is not considered to have made me a donation; and nevertheless, if I accept the ten aurei from the slave, it is established that I accept them mortis causa. The same thing happens where an heir is appointed on condition that he pay me ten aurei; as, by accepting the money from him who is appointed heir, I acquire it mortis causa, for the purpose of complying with the condition.

39Paulus, On Plautius, Book XVII. If he to whom a slave has been donated mortis causa manumits him, he will be liable to an action to recover the value of the slave, as he knows that he can be sued if the donor should regain his health.

40Papinianus, Questions, Book XXIX. If a donation mortis causa made between husband and wife takes effect, the donation is referred to the time when it was made.

41The Same, Opinions, Book II. Where a slave, who is to be free under the condition of paying a certain sum out of his peculium to one of the heirs to the estate, does so, he must account for that sum as well by reason of the Falcidian Law, as where suit is brought for the estate, and also where restitution is made under the Trebellian Decree of the Senate. What the slave received as a donation, and paid, is considered to have been given out of his peculium, and if it was paid by another in his presence, and in his name, it is understood as having been paid by himself.

42The Same, Opinions, Book XXXII. Ad Dig. 39,6,42 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 368, Note 1.Seia, having transferred her property to her relative Titius, by way of donation, reserved the usufruct of the same for herself; and it was agreed that if Titius should die before she did, the said property should go to him, and if she died during the lifetime of the children of Titius, it should then belong to them. Hence, if the heirs of Lucius Titius should claim the property, they could not ineffectually be opposed by an exception on the ground of bad faith. However, suit having been brought in good faith, it was asked whether the woman was not obliged to promise to give the property to the children of Titius when he died. Some doubt arose on the point that the donation should not be extorted, where title to it had not yet vested in the children; still, might it not be said that, on account of the security given, the first donation which was perfected by the delivery of the property, and which, being actually given in the beginning, should be perpetuated; and not the second one which was merely promised? Therefore, was the donation made under a certain condition, and should it be so considered, or was it made on account of death? It cannot be denied that it should be considered to have been made mortis causa. The result is that the first donation having been annulled, the second one should be held to have been extorted, as Seia survived Titius. Finally, after the death of the woman, if the children of Titius had accepted the bond with her consent, they would be liable to contribute to the Falcidian portion in proportion to their respective shares. 1Where a father, at the point of death, gave certain property to his emancipated son, without imposing upon him the condition of returning the same, and his brothers and co-heirs desired contribution to be made out of the property, on account of the Falcidian Law, I gave it as my opinion that the ancient rule should be observed, as the new constitution had nothing to do with the other donations, which were made under positive conditions, and, in the case of death, there should be a deduction from the property of the estate, without the heirs having the hope of retaining it; for he who made the gift absolutely did so when dying, rather than as a donation mortis causa.

43Neratius, Opinions, Book I. Fulcinius: A donation mortis causa can be made between husband and wife, if the donor has an exceedingly well-founded apprehension of death. Neratius: It is sufficient if the donor has a belief of this kind, and thinks that he is going to die, and no inquiry should be made whether his opinion was well grounded or not. This rule should be observed.

44Paulus, Manuals, Book I. Where a donation mortis causa is made to a slave, let us see whose death must be taken into consideration, that is to say, the death of the master, or that of the slave himself, in order that there may be ground for a personal action to recover the property. The better opinion is that the death of the person to whom the donation was made should be considered; still, the donation does not follow the manumitted slave after the death of his master, before the will is opened.