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CHAPTER XIV.

DONATIONES MORTIS CAUSA.

Definition.-A donatio mortis causâ is a gift of personal property made by one who apprehends that he is in peril of death. Of such a gift there are three essentials:-1. The gift must be with a view to the donor's death. 2. There must be an express or implied intention that the gift should only take effect on the donor's decease by his existing disorder. 3. There must be manual delivery of the property or of the means of obtaining possession of it. (Brett's L. C. 33.)

What may be the Subject of such Donations.—Thus, negotiable notes, promissory notes, payable to order, though not endorsed, bills of exchange, though not endorsed, bank notes, bankers' deposit notes, cheques drawn by a third person payable to the donor or order, though not endorsed by the donor, policies of insurance, bonds, and mortgages, receipts for money, and keys as affording the means of obtaining possession of the things given, may be the subject of such donations. (St. § 607a; Brett's L. C. 34; Re Mead, Austin v. Mead, 15 C. D. 651; Clement v. Cheesman, 27 C. D. 631.) But the delivery of a cheque drawn by the donor which was not presented before his death was held not to be a good donatio mortis causâ, because the death of the drawer is a revocation of the banker's authority to pay (Clement v. Cheesman, supra), unless paid away for valuable consideration before his death. (Rolls v. Pearce, 5 C. D. 730.) And railway stock cannot be the subject of a donatio mortis causâ. (Moore v. Moore, 18 Eq. 474.)

Mixed Character of such Donations. A donation of this kind partakes partly of the characteristics of a gift inter vivos, and partly of those of a legacy. It differs from a legacy in these respects : 1. It takes effect at once sub modo (i.e., conditionally), and therefore does not require probate. 2. It requires no assent on the part of the executor or administrator to perfect the title of the donee. It differs from a gift inter vivos in certain respects, in which it resembles a legacy: 1. It is revocable during the donor's lifetime. 2. It might be made to the wife of the donor even before the stat. 45 & 46 Vict. c. 75, when a gift inter vivos by a man to his wife would have been void at law. 3. There must be delivery. 4. It was subject to probate duty, and is now subject to estate duty. 5. It is liable to the debts of the donor on a deficiency of assets. (St. $ 606a; Brett's L. C. 33; Wms. on Exors. 681.)

Evidence. Evidence of the clearest and most unequivocal character is requisite to support a donatio mortis causâ. (Cosnahan v. Grice, 15 Moo. P. C. 215.

CHAPTER XV.

ELECTION, SATISFACTION, PERFORMANCE AND

CONVERSION.

Election.—Election is the obligation to choose between two rights, by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both. The doctrine rests upon the principle that a person shall not be allowed to approbate and reprobate ; but if he approbates, he shall do all in his

power to confirm the instrument he approbates. The doctrine arises where a grantor or testator gives away either knowingly or by mistake that in which he has no interest, and in the same instrument makes a gift to the owner of the property so given away. In such cases the owner of the property cannot both take the gift and retain his own property. If he takes the

. gift, he must resign his own property. If he elects against the instrument, he cannot have the gift. But in the latter case he does not necessarily forfeit the entire gift, but only so much as will compensate the person whom he has disappointed by electing to take his own property; in other words, compensation, and not forfeiture, is the rule. (Streatfield v. S., 1 Wh. & Tu. 416.)

As the doctrine of election depends on the principle of compensation, it follows that it is only applicable where there is a fund out of which compensation can be made, or, in other words, where the donor puts into the gift some property that is actually his own. Thus, where a person has a special power of appointment, and he appoints part to persons objects of the power and part to persons not objects of the power, the former may set aside the excessive appointment and claim the amount thereby appointed, and also take the shares appointed to them, for here no part of the testator's property is given. (Bristow v. Warde, 2 Ves. jun. 336.) But if he appoints to non-objects and gives property of his own to the persons entitled in default of appointment, the latter must elect. (Whistler v. Webster, 2 Ves. jun. 367.) Parol evidence is not admitted to raise a case of election. (Clementson v. Gandy, 1 Keen, 309.)

The doctrine of election is founded on a presumed intention that effect shall be given to every part of an instrument, but this presumption is rebutted where the instrument expresses a contrary intention. (Re Vardon, 31 C. D. 275; Hamilton v. H., (1892) 1 Ch. 396.)

An election may be express or implied by conduct. (Padbury v. Clarke, 2 Mac. & G. 298.) But an election will only be binding if made with knowledge of the facts and of the doctrine. (Spread v. Morgan, 11 H. L. C. 588; Wilder v. Pigott, 22 C. D. 263.) If, however, the person entitled to elect allows another so to deal with one of the properties that it would be inequitable to disturb the possessor, he will be estopped from doing so, though he did not know the facts. (Dewar v. Maitland, 2 Eq. 834.) If a person dies without having elected, and both properties devolve on the same person, he must elect (Fytche v. F., 7 Eq. 409); and if a person does not elect within the time limited, he will be deemed to have elected against the instrument. (Ibid.)

In the case of persons under disability, the Court will elect for them, either at once (Streatfield v. S., supra) or after an inquiry in chambers. (Brown v. B., 2 Eq. 481.)

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Satisfaction. The doctrine of satisfaction arises where a donor, being under some obligation to the donee, makes a gift under circumstances which indicate an intention that it shall be taken in satisfaction of the prior obligation. Where the intention is expressed, there is, of course, no difficulty; it is only the cases in which the intention is implied which call for notice. These are satisfaction of (1) legacies by portions and portions by legacies, (2) legacies by legacies, (3) debts by legacies.

A portion is a provision made for a child by a parent, and for this purpose a person may put himself in loco parentis, though the actual father is living. (Powys v. Mansfield, 6 Sim. 644.) A parent is under an obligation to provide for his child, and therefore when a benefit is given to a child the Court regards it as a portion; and if afterwards a further benefit is given, it is to be taken not as an addition to the former portion, but in satisfaction of it. (Ex parte Pye, 2 Wh. & Tu. 366.) The Court, therefore, leans against double

ons and in favour of satisfaction. Where a person first makes an advance and afterwards makes provision by settlement or will, no question of satisfaction arises, for the first amount has been actually paid. But where the settlement comes first, and then a provision by will or an advancement, or where the will comes first and then provision by settle

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