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NOTES. 95 

them unconstitutional are as much a part of the law of the land as 
are legislative enactments. They become part of the body of the 
law itself and are not merely the evidences thereof as are decisions 
relating to the unwritten or common law." The cases, which fall 
within this section, seem to be as a whole, opposed to this view. 1 * 
Since no contract is involved, the exception rule cannot be pleaded 
as a defence to the decision. The fact that it was a criminal case 
undoubtedly had a potent influence on the result. Natural justice 
is certainly upheld by the decision, for no one can doubt that it is a 
hard law which punishes a man for doing an act, which was 
expressly declared to be legal at the time he committed it. It is 
probably for this reason that the criminal cases involving this point 
have been decided on the theory that the decision makes the law, 15 
although in principle there seems to be no reason for making the 
exception. Another reason advanced in support of these criminal 
cases is that the second decision is a violation of the Constitution, 
which prohibits the passage of any ex post facto law. An ex post 
facto law is one which makes an act innocent when done a crime. 
It would seem that the same objections lie against this argument as 
lie against the argument that an overruling decision is a law impair- 
ing the obligation of contracts. 

A. S. S., Jr. 

Donatio Mortis Causa. — In the recent case of Scott v. Union 
& Planters' Bank and Trust Co., et al., 1 decided by the Supreme Court 
of Tennessee, it was sought by the complainant to have established, 
by a decree of the court, two gifts, alleged to have been made under 
circumstances which constitute a valid gift in prospect of death. 
The validity of the gifts was attacked principally on the ground of 
insufficient delivery. In the opinion, which granted the prayer of 
the bill, the court takes up and discusses the question of what is a 
sufficient delivery in donatio mortis causa. The conclusion reached 
may best be stated in the language of the court: "An examination 
of the modern cases all show, while courts will scrutinize with care 
the evidence upon which gifts causa mortis are sought to be sus- 
tained, and will require in every case clear and convincing proof, 
yet when it is once ascertained that it is the intention of the donor 
to make such a gift, and all is done which is possible under the cir- 
cumstances in the matter of delivery, the gift will be sustained." 
Throughout the opinion and in the cases cited, the intention of the 
donor is emphasized as the pivotal point and criterion in the deter- 
mination of what should be deemed a delivery in law so as to make 

"Pierce v. Pierce, 46 Ind. 86; Stockton v. Dundee Mfg. Co., 22 N. J. 
Eq. 56. 

"State v. Bell, 136 N. C. 674; State v. Fulton, 149 N. C. 485. See also 
Boyd v. State, 53 Ala. 608. 

1 130 S. W. 757. 

96 NOTES. 

a valid gift. The amount and kind of delivery for gifts inter vivos 
and mortis causa are treated as being identical. Interpreting the 
language of the opinion in the light of the facts, the case is not 
authority for the proposition that any expression of intention to give 
by the donor, unaccompanied by an overt act of an attempt at actual 
delivery, would be a sufficient delivery to sustain a donatio mortis 
causa; yet the treatment of this class of gifts as requiring the same 
kind of delivery as gifts inter vivos would, it seems, if the analogy 
is followed closely, lead to such a holding. It is submitted that the 
distinction between gifts inter vivos and gifts mortis causa should be 
constantly kept in mind, and that the peculiarity of this class of 
gifts, owing to its origin in notions of equity, and its present con- 
flict, which is more than apparent, with the stautes of wills — all these 
things should unite to give gifts causa mortis a field to themselves 
to which they should be closely confined by the law, and in which 
their operation should be free from the influence of principles gov- 
erning inter vivos transactions. 

The validity of a gift made in prospect of death was first recog- 
nized in England in Drury v. Smith in 1717. 2 Since that time the 
courts of England and America have, with a varied degree of hesi- 
tancy, adopted and applied the doctrine announced in that case. It 
is to-day too deeply rooted in our law to give any argument against 
its wisdom, founded upon the facts of its origin, much weight. 
However, to throw a light to guide in the application of the doctrine, 
and to determine what rules should govern, it may be profitable to 
recall, briefly, the causes which gave rise to donatio mortis causa. 

The validity of this class of gifts was first recognized in the 
Roman law, and it is generally admitted that they owed their 
existence there to the stringent severity of the civil law in respect 
to wills. 3 Under the code of Justinian a will or testament was re- 
quired to be in writing and signed and sealed by the testator in the 
presence of seven witnesses, who had to subscribe their names and 
affix their seals. In order to make, take under, or be a witness to 
a testament, the person was required to have the testamenti f actio, a 
term implying such a participation in the law of private Roman citi- 
zens as to exclude over half the inhabitants for one cause or another. 4 
The necessity and technical manner of naming heirs who were to 
take under or whom the testator wished to disinherit in a testament, 
and other matters of form which were rigidly enforced, made it 
practically impossible for anyone not learned in the law to draft 
a will. Thus many persons were not qualified to make wills and 
those who were so qualified, but who were overtaken by a sudden 
illness, were prevented from disposing of their property according 
to their desires. In an effort to remedy this situation, to some extent 
at least, the practice of declaring valid oral gifts made in prospect 

1 1 P. Wms. 404. 

• Headley v. Kirby, 18 Pa. 326. 

•Institutes of Justinian, Lib. II, Tit. X, 6 D. XXVIII. 1, 22, 2. 

NOTES. 97 

of death and properly witnessed, arose. But the Roman law guarded 
these gifts by the strictest forms of evidence. That it was fraud 
and perjury which that law sought to keep down in this class of 
gifts by strict requirements, both substantive and evidenciary, would 
appear from the nature of the requirements themselves. 5 

From the foregoing at least two things may be deduced which 
may be useful in determining what circumstances constitute, and 
what forms of evidence should be required to prove a gift made in 
prospect of death to-day: First, that they were in their inception 
recognized as an exception to the law of wills ; and, second, that all 
the substantive and evidenciary requirements of the Roman law 
were calculated to negative fraud and perjury. 

The law of England and America has never been as stringent 
and exacting in its requirements in reference to wills as was the 
Roman law. 8 In the absence, therefore, of many of the causes 
which gave rise to this class of gifts, and in the absence of any 
urgent need for it, the doctrine has been established in our law. We 
have the effect without the cause, and although it may have such 
intrinsic merit as to justify its perpetuation, yet it appears that it 
should be closely confined to its original scope, and that the same 
safeguards should be thrown around it to protect it from abuse 
through fraud and perjury. 7 The policy which gives a statute pre- 
cedence over the common law of a subject which it purports to 
cover, demands that this class of gifts, which is an exception to the 
spirit of the statutes governing the disposition of property by wills 
in practically all jurisdictions in this country, be closely construed so 
as not to further infringe upon those statutes. 

An examination of the cases reveals uniformity in the substan- 
tive requirements of gifts made in expectation of death. Personalty 
alone can be the subject of such a gift. 8 It is agreed that the donor 
must be overtaken by an illness of such a serious nature as to put 
him in expectation of death. 9 He must clearly show the intent to 
give. The gift must take effect presently and is ipso facto revoked 
by the donor's survival. 10 And, whether as an intrinsic element of 
the transaction or as a matter of evidence is disputed, it is required 
that there be a delivery by the donor to the donee or to some third 
person as agent of the donee to complete the delivery to the donee. 11 
It has been in construing what constitutes a valid delivery that the 

5 Institutes of Justinian, Lib. II, Tit. VII, I D. XXXIX. 6, 35, 2, 4. 

* The formalities attendant upon the execution of a will differ in many of 
the States in this country, and for this reason the statutes of the jurisdiction 
must be consulted. In the main they follow the Eng. Statute of Wills. 

'Keepers v. Fidelity Title & Deposit Co. (N. J. Err. and App.), 56 N. J. 
L. (27 Vroom) 302, approving sentiment expressed in Ridden v. Thrall, 125 
N. Y. 572. 

'In re Hall's Estate, 38 N. Y. Supp. 1135 (N. Y., 1896). 

'Gourley v. Linsenbigler, 56 Pa. 166 (1868). 

10 Hassell v. Basket, 107 U. S. 602. 

11 Ward v. Turner, 1 Dick. 170. 

98 NOTES. 

courts have differed in opinion. As in the principal case, many 
jurisdictions place these gifts on the same footing in respect to 
delivery as gifts inter vivos. 12 Others will hold a delivery valid in 
gifts mortis causa which would not be valid inter vivos, and a court 
of equity will compel the donor's executor to complete the gift. 13 
It would seem that the latter is the correct view since the object of 
delivery in the two cases is entirely different. In the case of a gift 
inter vivos a complete transmutation of possession is necessary to 
give the donee any rights whatever in the subject of gift which he 
can enforce either at law or in equity. Without it the transaction 
amounts to nothing more than an expression of the donor's intention 
to give. On the other hand, the purpose of delivery in gifts mortis 
causa is, since death has eliminated the witness against whose estate 
the alleged gift is sought to be enforced, to prevent fraud and per- 
jury on the part of the person claiming as donee. And the same 
extenuating circumstances which gave rise to gifts mortis causa 
should, it seems, come to the aid of an incomplete inter vivos delivery 
to make it a valid delivery in gifts mortis causa. A sudden and 
serious illness which prevents a man from executing a will may also 
prevent him from making manual delivery of objects far distant 
from his sick bed, or from executing the power of attorney neces- 
sary to transfer a chose in action inter vivos. And if he has done 
all within his power in the midst of extreme circumstances, and 
has shown his desire to make the gift by such an overt act as would 
be as capable of proof as a manual delivery would have been capable 
of proof, then it seems that the law which respects his desire in 
permitting him to make such a gift under any circumstances in 
exception to a statute of wills, should also respect that manifest 
desire by helping to complete the delivery. Adopting this view, a 
constructive or symbolic delivery, such as the handing over of a 
key to a chest or strong-box in which the subject of gift is deposited, 
or the handing over of a certificate of stock or a certificate of deposit 
without a power of attorney executed by the donor to the donee, 
which is in many jurisdictions necessary to transfer them inter vivos, 
with words of present gift, should constitute a valid delivery for a 
gift mortis causa; for it seems that these acts are as capable of clear 
proof and as effective in preventing fraud and perjury as a manual 
delivery of the subject of gift would be. 

If this conclusion be accepted and if the reason supporting it 
be sound, it must be conceded that the pivotal point of a valid or 
invalid delivery in gifts mortis causa is not alone the proof of the 
intention of the donor. It strikes at the nature of that proof, and 
is the efficiency of the overt act evidencing that intention to negative 
fraud and perjury. Delivery is therefore an evidenciary requirement 
in this class of gifts, while it is a substantive requirement in gifts 
inter vivos, and the two should not be confused. 

/. F. S. 

" Pennington v. Gittings, 2 G. & J. 208 (Md.) ; Grymes v. Howe, 49 N. Y. 17. 
" Veal v. Veal, 27 Beav. 303.