Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ III. On Donation by Reason of Death
- Donation by reason of death is that which is made with a view to death; moreover, by its nature it is revocable.
By common law a donation by reason of death is valid, provided it is clothed with the due conditions, namely: 1. it must be made with a view to death; otherwise it would be judged a donation among the living; 2. it must be accepted before the death of the donor by the donee himself; 3. if the donee dies first, it is revoked ipso facto 1, nor does it pass to his heirs 2. - St. Lig., ibid., n. 741.
1 Nevertheless see the things said about these above, n. 812.
2 Likewise a donation by reason of death is revoked if the donor has survived the danger.
By Gallic Law donation by reason of death is not admitted. For it is declared in art. 893 that no one can dispose of his goods gratuitously except by a disposition among the living, or by testament in the forms prescribed by law. Hence it seems that one must speak concerning it as concerning testaments which lack formalities. Nevertheless, it seems certainly valid as a manual donation among the living, which the law does not affect, but only denies the action regarding it. And therefore the same seems to be said of donations by reason of death. - Gousset, Code commente, art. 8, and various Jurists.
- Questions. - It is asked, 1. Whether he to whom a movable thing has been given by reason of death can receive it secretly when the donor has died?
I reply affirmatively, at least more probably, provided he is certain of the donation and of the last will of the deceased; for he has a right in the thing donated; therefore he uses his right. Then the thing was not donated as to be paid, but as to be accepted by the donee himself.
It is asked, 2. Whether a manual donation made by him under this condition, that the donated thing be restored to him if he recovers, is valid?
I reply affirmatively. For: 1. it is valid as a donation by reason of death, even by Gallic Law, which does not stand in the way of manual donations; 2. it is valid also insofar as it is a donation among the living, if it is not revocable at the will of the donor, but only upon the event of health; because then it can be held as a conditioned donation among the living.
It is asked, 3. Whether the same donation is valid under the condition that it be restored if it is asked back?
I reply affirmatively, more probably, although it is not valid as a donation among the living, which requires that the donor irrevocably despoil himself of his thing. Nevertheless it can be valid as a donation by reason of death because of the real handing over, which ought to have no less strength, although no mention of death is made.
- You will resolve. - 1. A disposition by which someone now and irrevocably gives to another the dominion of a thing, whose use or usufruct he reserves to himself until death, is not a donation by reason of death, but among the living.
- Nor are dispositions by which the sick actually and irrevocably give to persons present, e.g. relatives, servants, friends, movable things or even immovable things without any condition regarding death, to be held as donations by reason of death, but among the living.
- Promises which are accustomed to be made in life concerning some thing to be given in death to relatives, servants, friends..., do not have the force of a donation by reason of death, nor by force of such a promise will anyone be able to claim even the least thing; because those promises are accustomed to denote nothing other than a mere purpose, or good intention, of making a donation at another time. Therefore one must beware lest servants and friends, etc., more easily interpret the will of the deceased in their own favor, and therefore secretly carry off any things whatever under the pretext of promise or donation. Recall the things said above concerning promise, n. 800. - See Cases, n. 811 and following.