The opinion of the court was. delivered by
Gibsow, C. J.
Perhaps the best definition of this species of donation in the books of the civil law, and 'the one which best corresponds to the best impressions the subject has received from the Anglo-Saxon jurists, who seem to be returning to the point from which they started—is, that which is found in Justinian's Institutes, Lib. 2, Tit. 7 : “ Mortis causa donatio est, quce propter mortis jit suspicionem; cum quis ita donat, ut si quis humanitus, haberet is qui accepit; sin autem supervixesset, is qui donavit reciperet, vet si eum donationis pcenituisset, aut prior decesseret is cut donatum sit.” Not a word in any part of this about sickness, first or last. Contested death-bed donations are of such occurrence in the courts, as to have superseded all others, and to have grown, in the apprehension of the judges, from a species to a genus; and hence the notion that they are referable exclusively to death-bed sickness. If made in sickness, it must necessarily be the last sickness; for the contingency happens adversely to the donee, where the donor is restored to health. But this notion seems to be yielding to more comprehensive principles. In his Treatise on Legacies, page 26, Mr. Roper, whose accuracy as a text-writer is creditable .to him, says, it is necessary that the gift be made in peril of death, or during the donor-’s last illness, and to take effect only in case he die. This would be critically correct, were it not redundant in one particular, and too narrow in another; redundant, because it is indifferent whether the peril of death be induced by sickness or any other cause. Thus,, the peril past, the gift of a soldier or a malefactor might be retracted, though made in perfect health, when going to execution or to battle. But his position is also too narrow in one particular; for a groundless apprehension of de§.th is necessarily as operative to make a gift conditional, as if the danger were real. No one would hesitate to say that the gift of a man in the predicament of Parolles', when sportively doomed by his friends, in the guise of ferocious enemies, might be recalled. I would, therefore, briefly define a donatio causa mortis to be a conditional gift, dependent on the contingency of expected death. There may, doubtless, be a conditional gift, when death is not expected; but in that case the condition would have to be expressed, and the contingency specified; in the donatio causa mortis, both are implied from the occasion. But it is certainly not requisite that the donor be in such extremity as is . *23requisite to give effect.to a nuncupation, which is sustained from necessity merely, where the donor was prevented by the urgency of dissolution, from making a formal bequest. Between these ways of disposition, there is not one approximating line. Donatio causa mortis is sometimes spoken of as being distinct from a gift inter vivos; the former having sometimes been supposed to be made in , reference to the donor’s death, and not to vest before it—but inaccurately, as it seems to me; as this gift, like every other, is not executory, but executed in the first instance, by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, or deliverance from the peril. The donee would certainly not be bound to make compensation for the intermediate use of the thing; and ev’dently because the intermediate ownership was vested in him. The gift is consequently inter vivos. All agree that it has no property in common with a legacy, except that it is revocable in the donor’s lifetime, and subject to his debts, in the event of a deficiency. The first is, not because the gift is testamentary, but because such is the condition annexed to it; and the second, not because it is in the nature of a legacy, but because it would otherwise be fraudulent as to creditors; for no man may give his property, who is unable to pay his debts. It is decisive, that the subject is not within the jurisdiction of the ecclesiastical courts; and the donee, consequently, takes paramount to the executor or a legatee. For this reason it is, that a subsequent will which becomes operative, only when the period of reclamation is past, and when the gift has become absolute by the event of the contingency, is not an effective act of revocation. I therefore cannot subscribe to the doctrine, that the making of a subsequent will is conclusive evidence of the gift having not been made during such a last illness as the law requires; and that if the degree of sickness were such as to induce an expectation of immediate death, the subsequent making of a formal will is conclusive that the donor had escaped from the peril of death which he supposed to impend at the time of the gift; and that under these circumstances, it cannot take effect as a donatio causa mortis. The direction to this effect, was obviously produced by an impression that this sort of gift is but a species of nuncupation, which is sustainable only as an equivalent for a legacy, and only where a formal testament could not be made; that it is annulled by deliverance, not from mortal peril, but from the apprehension of it; and it assumes that no one would make a conditional gift who could make a testament: conclusions in which we do not concur. To say nothing of the fallacy, that the making of a will indicates even a respite from sickness or the apprehension of death, a disposition "by donatio causa mortis is not to be disturbed by the alternation of hope and dispair, dependent on the doubtful spinning of the die, but only by the turn up of life. Were it otherwise, the gift in the present instance would be void in its creation without regard to the *24subsequent will, inasmuch as it was accompanied by a paper, which but for the delivery of the thing given, would be itself a will. Indeed it has been surmised that the gift was testamentary notwithstanding the delivery, and consequently revoked by the subsequent will. But though bearing a testamentary form, it is evident both from the context and the extrinsic proof, that the writing was designed only for evidence of a present gift. ,A delivery of the thing, accompanied by an oral expression of the same words, would certainly not have made a nuncupation; and the reduction of the words to writing cannot change their effect. They are precisely such as would be used by a man unaccustomed to technical language, with a view to constitute a donatio causa mortis. The law looks to substance, and here the recital of delivery in the paper itself, is decisive of its character; for no man thinks of giving by will and performing the office of his own executor. In Tate v. Hibbert, (2 Ves. jr. 111,) Lord Loughborough inclined to think this species of donation might be effected by deed or writing, without delivery, though not by parol; but he certainly could not have meant an unsealed writing which, it has been finally settled, is still but parol, and requires the same consideration. He determined in the very case, that a voluntary promissory note, or banker’s check, cannot be sustained as a donatio causa mortis, because not an actual transfer of specific money; and the principle has been repeated in Parish v. Stone, (14 Pickering, 198.) Indeed it would seem to be impracticable even by deed, which, though it may obviate an objection to want of consideration, amounts, without delivery, only to a covenant which passes no title to a specific thing. But where the gift is executed, both the terms of it, and the fact of delivery, may be evidenced by writing, whether sealed or not.’
But if the gift were not a donatio causa mortis, what title would that give the executor or a legatee 1 Whether absolute -or conditional, it is good'against the donor’s representative by title subsequent. The condition is for the benefit of the donor; and here the evidence, written or verbal, shows a gift of some sort, which consequently must be taken to have been absolute in the first instance, if it were not conditional by the terms of the writing, or by implication from the nature of the occasion. It is an elementary definition of a gift, that it is a transfer of the title, of which, though the gift be in writing, delivery of the thing is the strongest and most essential evidence. It is a contract executed, which requires no consideration; and I am unable therefore to comprehend what is meant by a remark found in the books, that these donations cannot be supported by the general consideration of mortality. It never has been decided that any con-. sideration is necessary; nor could it be, without violating a common rudimental principle. “A true or proper gift,” says Sir William Blackstone, “ is always accompanied with delivery of possession, and takes effect immediately: as if A. gives B. £100, or a flock of *25sheep, and puts him in possession of them immediately, it is then a gift executed in the donee; and it is not in the donor’s power to retract it, though he did it without any consideration or recompense. But if the gift does not take effect by an immediate delivery of possession, it is then not properly a gift but a contract; and this a man cannot be compelled to perform but upon good and sufficient consideration.” (2 Comm. 441.) Indeed if it were not gratuitous, it would be an exchange or a sale. The error of the coui’t below seems to have had its root in a notion that this species' of donation is to be treated not as a gift inter vivos, but as a testamentary disposition, subject to restrictions like those of nuncupation, and taking effect for the first time at the donor’s death; to countenance which, there is certainly much in the loose and confused dicta of the English jurists. Here the donor certainly made a gift, having power to do so on whatever condition he might choose to prescribe, or without condition at all; for no one will say that a man is competent to reserve a condition, only in the extremity of his last sickness. Even if the condition were void, the gift would be good. Yet it was not void; but the gift became absolute by the happening of the contingency. In its circumstances, the case fulfils all the indications in the concluding part of the paragraph in the Institutes, of which I have already extracted the beginning. “ Et in summa, mortis causa donatio est, cum magis se quis velit habere, quam cum cui donat; magisque eum cui donat, quam hcvredem suum.” It will not be said that the donor did not so give as to evince that he would himself rather possess the thing, than that the donee should possess it; and yet that the donee should possess it, rather than the donor’s legal representative. The gift was therefore perfect as a donatio causa mortis.
Judgment reversed.